Supreme Court grapples with church-state boundaries in school aid case

Wednesday, December 1, 1999

The Supreme Court struggled today to find a formula for deciding when government aid to parochial schools becomes so substantial that it violates the First Amendment’s prohibition against establishment of religion.

The justices heard arguments in Mitchell v. Helms, a Louisiana case challenging a federal program that loans taxpayer-funded instructional equipment, including computers, to parochial schools. A federal appeals court, noting that it approaches the high court’s doctrine in this area with “fear and trembling,” struck down the program.

During the hourlong arguments in the case today, justices seemed aware that the lines they have drawn in past cases — allowing aid to parochial schools in the form of textbooks but not globes, for example — have sown confusion for lower courts and school officials. Through the 1970s, the court fairly consistently ruled against most forms of aid to parochial schools, but more recently that has changed.

Advocates for greater aid to parochial schools, as well as those who seek government vouchers for parochial school tuition, are hoping the court’s more conservative makeup will prompt the court to rule in their favor in the Mitchell case.

But the justices’ difficulty with line-drawing today made the outcome seem far from certain.

“Would government be helped if we developed a hard and fast rule?” asked Justice David Souter at one point, adding that the court had done “some impossible line-drawing in the past.” But none of the advocates before the court offered a rule that would cover all cases of involvement between church and state in the parochial school context.

Michael McConnell, arguing on behalf of parochial school parents who want the program revived, said “this program is entirely constitutional.” He said it was created carefully to avoid being used for religious purposes.

He urged the court not to adopt a firm rule allowing government aid when it supplements a parochial school program but not when it completely supplants it. McConnell invoked the court’s 1997 decision in Agostini v. Felton, which permitted federally funded special education teachers to provide services on parochial school grounds.

Under that decision, he said, public aid is permitted if it is neutrally given, does not inculcate religion and does not lead to excessive entanglement of public agencies in church affairs.

But when Chief Justice William Rehnquist asked him if a public school board could build a new school and turn it over completely to a parochial school, McConnell backed off and said that would cause constitutional problems because of the entanglement it would lead to. “Is entanglement the point at which aid becomes too much?” Souter asked. McConnell said that was not the only factor.

Deputy Solicitor General Barbara Underwood, also defending the federal program, did not do much better in helping the court draw distinctions between what is constitutional and what is not. She said aid becomes inappropriate at the hard-to-define point “when it is sufficiently substantial that it supports the entire operation” of the parochial school or gives the “appearance” of subsidizing the religious mission.

What are these “mystic appearances?” Justice Antonin Scalia asked.

Souter asked about another measure that the court has used to determine when aid to parochial schools is inappropriate: divertability. A textbook with “pre-established content,” Souter said, has been allowed, while a computer, “which can transmit anything or be used for anything” is more suspect because it can be diverted for a religious purpose.

Underwood countered that computers are even more neutral than textbooks because they have no content of their own and are “unlikely to be used for wholly sectarian teaching.” But she too urged the court not to draw bright lines but rather to evaluate each program as it comes along.

Lee Boothby, representing parents who opposed the parochial aid program in Louisiana, said the issue at stake was “our historic commitment that taxpayers not be required to subsidize religious schools.” He said the government shouldn’t pay for a parochial school’s core educational programs but that he was less bothered by aid that adds to existing programs.

“Give us an example” of acceptable aid, Rehnquist asked. Boothby said musical instruments might be one, but Rehnquist said, “What if they play ‘O Come All Ye Faithful’ on it?”

Boothby changed the subject to computers, which he called “the most highly divertable equipment possible.” He said Jefferson Parish schools had been unable to adequately monitor computer use to be sure they were not used for religious Web sites or the like.

McConnell rose for a brief rebuttal, arguing that the parents who opposed the aid program for parochial schools were “mired in the technology and jurisprudence of the ’70s. Technology has changed, and the doctrine has changed.” Whether the court will change even more in this case is unclear. A decision could come anytime before the end of the court’s term next summer.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.