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1999 Section 1: Mitchell v. Helms Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 1999 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview MITCHELL v. HELMS

Unequal Treatment or Separation of Church and State: Is the Establishment Clause Offended by Government Aid to Parochial Schools?

Matthew Curtis *

Does the First Amendment bar President Clinton from fulfilling his promise of connecting every classroom in America to the Internet? The Supreme Court in Mitchell v. Helms will decide what type of aid, if any, the government may provide to parochial schools without infringing the First Amendment's Establishment Clause - "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Fourteen years ago, taxpayers in Louisiana's Jefferson Parish filed suit challenging the constitutionality of federal Chapter 2 programs that provide secular aid to parochial schools through block grants to individual states. The United States Court of Appeals for the Fifth Circuit heard the case last year and ruled that the Chapter 2 programs were unconstitutional as implemented by Jefferson Parish. The Fifth Circuit relied on three previous Supreme Court decisions: Wolman v. Walter, 433 U.S. 229 (1977); Meek v. Pittenger,421 U.S. 349 (1975); and Committeefor Public Education and Relgious Iberty v. Regan, 444 U.S. 646 (1980). The Fifth Circuit concluded that those cases permitted some aid, such as the provision of secular textbooks or funding for federally required achievement tests, but did not permit government loans of instructional materials such as library books, overhead projectors, computers, and printers. In its decision, the Court of Appeals rejected the lower court's reliance on an apparent trend within the Supreme Court of permitting more types of government aid to parochial schools. The Supreme Court could choose Mitchell as the vehicle to provide additional guidance on its interpretation of the Establishment Clause. A decision in Mitchell may also suggest how the Court would rule in an upcoming school voucher issue. Will the Court depart from past precedent and establish a more coherent guideline, or will it add further confusion to an already chaotic area of law? The Supreme Court could choose to uphold the Chapter 2 program, strike down all or a portion of it, or find only that it is unconstitutional as applied in Jefferson Parish. The Court, to avoid further muddying the establishment clause waters, could reject the distinction between textbooks and "instructional materials" made by past Supreme Court decisions and the Fifth Circuit. Such a distinction is largely meaningless. The government provision of secular textbooks frees resources parochial schools would have otherwise spent on textbooks, enabling them to purchase "instructional materials" or hire additional teachers to advance their religious purpose. Thus, the aid is still provided, it simply takes a more circuitous route.

College of William and Mary School of Law, Class of 2001; Co-Director, Student Division of the Institute of Bill of Rights Law.

1 The Court could also tackle the question of whether government aid can be provided to non-parochial private schools while denying such aid to religious schools. Private schools, whether parochial or non-parochial, generally exist to further some ideology, even if it is simply that public schools are insufficient or undesirable for educating some students. Mitchell then, could serve as a companion case to Board of Regents v. Southworth because the Court could choose to decide whether religious speech is to be treated differently than other speech. (In Southworth, to be decided this term, the Court will decide whether mandatory student fee funding of political speech violates the First Amendment) If the Court chooses to distinguish between religious speech and other speech, such a distinction would seem to be inconsistent with the demands of the Fourteenth Amendment's Equal Protection clause. And, lurking at the fringes of the Mitchell case, is the question of school vouchers. Generally, vouchers provide a fixed sum - usually less than what is spent per-student by the local public school system - to be used by parents electing to send their children to private schools. Many see vouchers as a way to cure what they regard as a failing public education system by injecting market forces such as competition into education thereby encouraging public schools to improve. Vouchers also have the appeal of granting relief to those parents who are paying taxes to support a public school system they do not utilize at the same time they are paying tuition to send their children to private schools. Proponents of vouchers have also sought support from low-income parents and social activists by arguing that vouchers will permit more lower income children to attend private schools superior to many of the aging inner-city public schools they now attend. However, such a voucher system is plagued by the same constitutional concerns implicated by Mitchell- taxpayer aid to religion and compelled funding of speech. Mitchellgives the Supreme Court the opportunity to place religious speech on an equal standing with other speech and simultaneously reject any compelled funding of speech, whether that speech is religious or secular.

2 98-1648 Mitchell v. Helms

Ruling below (Helms v. Picard,5th Cir., 151 F.3d 347):

Chapter 2 of Tide I of 1965 Elementary and Secondary Education Act and its Louisiana counterpart, as applied in Jefferson Parish to fund loan of state-owned instructional equipment and library books to sectarian schools, violate First Amendment's establishment clause; state loan of free textbooks to parochial schools, however, is permitted by Board of Education v. Allen, 392 U.S. 236 (1968).

Question presented: Does program under Chapter 2 of Title I of 1965 Elementary and Secondary Education Act, which provides federal funds to state and local education agencies to purchase and lend neutral, secular, and non-religious materials such as computers, software, and library books to public and non-public schools for use by students attending those schools, and which allocates funds on equal per-student basis regardless of religious or secular character of schools students choose to attend, violate establishment clause of First Amendment?

3 Mary L. HELMS, et al., Appellants

V. Guy MITCHELL, et al., Appellees

United States Court of Appeals for the Fifth Circuit

Decided August 17, 1998

DUHE, Circuit Judge:

I. its Louisiana counterpart, This case requires us to find our way La.Rev.Stat.Ann. § 17:351-52, violate the in the vast, perplexing desert of Establishment Clause as applied in Establishment Clause jurisprudence. Jefferson Parish insofar as they provide Plaintiffs, as taxpayers, sued Defendant direct aid to sectarian schools in the form of educational and instructional materials. Jefferson Parish School Board et al., claiming that three state and one federal Initially, the district court agreed and school aid programs were unconstitutional granted Plaintiffs' motion for summary as applied in Jefferson Parish, Louisiana. judgment, finding that the loan of (footnote omitted) The District Court state-owned instructional materials (such initially granted Plaintiffs' motion for as slide projectors, television sets, tape summary judgment on some issues. The recorders, maps, globes, computers, etc.) court then conducted a bench trial on the to pervasively sectarian institutions had remaining issues and rendered judgment. the "primary effect of providing a direct When the case was reassigned due to the and substantial advancement to the district judge's retirement, the new judge sectarian enterprise" and therefore reversed some of the court's earlier violated the Establishment Clause. The rulings. All told, the parties spent some court relied primarily on Wolman v. Walter, thirteen years in district court before 433 U.S. 229, 250 (1977), and Meek v. reaching this Court. During that time the Pittenger,421 U.S. 349, 363 (1975). sand dunes have shifted. When the case was reassigned due to Judge Frederick Heebe's retirement, Judge

Former Chapter III. 2 is now labeled "Subchapter VI--Innovative Education Plaintiffs also claim that Chapter 2 of Program Strategies" and is codified at 20 Title I of the Elementary and Secondary U.S.C. §§ 7301-7373 (West Supp.1998). Education Act of 1965 ("Chapter 2")' and For ease of reference, we will continue to refer to new Subchapter VI as "Chapter 'On October 20, 1994, Congress enacted 2." We will cite individual sections, the Improving America's School Act of however, by reference to citations in the 1994, Pub.L. 103-382, 108 Stat. 3518. current United States Code.

4 Marcel Livaudais granted Defendants' "secular, neutral, and nonideological motion to reconsider the court's ruling. services, materials, and equipment" to Following the reasoning of the Ninth students who are enrolled in private Circuit in Walker v. San Francisco Unfied nonprofit elementary and secondary School District,46 F.3d 1449, 1463-70 schools within its boundaries. 20 U.S.C. § (1995), Judge Livaudais found that the 7372(a)(1). Chapter 2 funds for the reasoning in Meek and Wolman, supra, innovative assistance programs must had been undermined by subsequent supplement, and in no case supplant, Supreme Court cases. He therefore "funds from non-Federal sources." 20 reversed Judge Heebe's finding of U.S.C. § 7371(b). The control of Chapter unconstitutionality and granted 2 funds, as well as title to all Chapter 2 Defendants' motion for summary "materials, equipment, and property," judgment, declaring Chapter 2 and must be in a public agency, "and a public La.Rev.Stat.Ann. § 17:351-52 agency shall administer such funds and constitutional, facially and as applied in property." 20 U.S.C. § 7372(c)(1). In Jefferson Parish. addition, any services provided for the benefit of private school students must be provided by a public agency or through a A. contractor who is "independent of such Chapter 2 provides financial assistance private school and of any religious through "block grants" to state and local organizations." 20 U.S.C. § 7372(c)(2). educational agencies to implement eight "innovative assistance programs." See 20 Once Louisiana receives its Chapter 2 U.S.C. §§ 7311(b); 7312(a),(c)(1); 7351. funds from the Federal government, the The challenged innovative assistance designated program describes State Educational Agency ("SEA") allocates 80 percent of the funds programs for the acquisition and use to Local Educational Agencies ("LEAs"). of instructional and educational Eighty-five percent of those funds are materials, including library services earmarked for LEAs based on the number and materials (including media of participating elementary and secondary materials), assessments, reference school students in both public and materials, computer software and private, nonprofit schools; 15% go to hardware for instructional use, and LEAs based on the number of children other curricular materials which are from low-income families. See 20 U.S.C. § tied to high academic standards and 7312(a). During the fiscal year 1984-85, which will be used to improve Jefferson Parish received $655,671 in student achievement and which are Chapter 2 funds; about 70% of those part of an overall education reform funds were allocated to public schools and program. about 30% to nonpublic schools. 20 U.S.C. § 7351(b)(2). In 1984, the State instituted a Chapter 2 services are to be provided monitoring process to ensure that Chapter to children enrolled in both "public and 2 materials were not being used for private, nonprofit schools." 20 U.S.C. § religious purposes. Nonpublic schools 7312. Section 7372 provides that a local were encouraged but not required to sign educational agency shall equitably provide assurances that they would only use

5 loaned materials for secular purposes. provide library/media materials, $102,862 Additionally, LEAs made monitoring was spent for instructional equipment, visits to nonpublic schools, and the State and $16,460 was spent for "local made monitoring visits to the LEAs and improvement programs." to some nonpublic schools. After the United States Department of Education conducted an on-site visit to review the Ruth Woodward, the Coordinator of Louisiana Chapter 2 program in the Chapter 2 program in Jefferson Parish, September, 1984, the Louisiana stated that library books are ordered for Department of Education made changes nonpublic schools, but not for public in monitoring LEAs. It increased, for schools. Such library books are stamped example, the frequency of on-site visits by "ECIA Chapter 2." Woodward reviews the Chapter 2 staff to LEAs from once the titles of books and other Chapter 2 every three years to once every two years. materials and deletes titles she finds inappropriate. After reviewing library book orders from 1982, Woodward The State also began reviewing the discovered approximately 191 tides in LEAs' monitoring process of the private violation of Chapter 2 guidelines and had schools. LEAs, however, have primary the books recalled and donated to the responsibility in Louisiana for monitoring public library. their Chapter 2 programs and for compliance with all applicable State and Federal guidelines. When State Chapter 2 Woodward also stated that she monitors visited the JPPSS in April, 1985, generally makes a single visit to a given the monitors found that "the services, nonpublic school during the year. During materials, equipment, [and] other benefits her monitoring visits, she stated that she provided to nonpublic schools" in has "normally" found that the Chapter 2 Jefferson Parish were not "neutral, secular materials and equipment are used in and non-ideological." accordance with Chapter 2 guidelines. A review of the instructional materials purchased with Chapter 2 funds during A report of that evaluation prepared 1986-87 and loaned to nonpublic, by the Bureau of Evaluation indicates parochial schools reveals the following that, while the LEAs "handle most of the kinds of items: filmstrip projectors, administrative matters related to Chapter overhead projectors, television sets, 2, the nonpublic schools make the motion picture projectors, video cassette decisions about how to spend their recorders, video camcorders, computers, Chapter 2 allocations, and they do so printers, phonographs, slide projectors, independently of one another." The etc. Woodward stated that no direct report also states that "[e]xcept that funds payments of Chapter 2 funds are ever cannot be spent for support of religious made to nonpublic schools; the funds are or ideological instruction, flexibility in the retained and administered by her office. use of Chapter 2 funds puts a minimum of limitations on the kinds of expenditures allowed." During the 1986-87 fiscal year, for example, of the total amount of Chapter 2 funds budgeted for nonpublic schools ($214,080), $94,758 was spent to

6 B. The panel read Meek as an illogical departure from We will focus on the Ninth Circuit's Allen, which had upheld a law requiring public decision in Walker, supra, because Judge school authorities to lend textbooks, Livaudais relied heavily on its reasoning free of charge, to both public and private and also because it is the only other school students. Allen, at 248. The panel pointed out that Circuit decision to have addressed the "Allen ... rests on the robust principle that 'the constitutionality of Chapter 2. Establishment Clause does not prohibit a State from extending the benefits of state In Walker, a panel of the Ninth Circuit laws to all citizens without regard for their religious affiliation.' " Walker, at 1465, confronted a Chapter 2 program that was, in all relevant respects, identical to the one quoting Allen, at 242. In the panel's view, we confront in Jefferson Parish. (footnote however, the Court's subsequent decision omitted) The most significant aspect of in Meek departed from Allen's reliance on the Walker panel's reasoning is devoted to neutrality when Meek "upheld the assessing whether Chapter 2 has a provision of textbooks to parochial school "primary or principal effect of advancing students, but struck down the program religion." (footnote omitted) Walker, 46 which loaned instructional materials and F.3d at 1464- 69. The panel began by equipment...." Walker, at 1465 (citations omitted); see Meek, 421 U.S. at 362, observing that, with the cases of Meek, Wolman and Board of Education v. Allen, 392 365-66. U.S. 236 (1968), the Supreme Court "drew a [constitutional] distinction between Even though the Court's subsequent providing textbooks and providing other decision in Wolman explicitly upheld Meek, instructional materials--such as maps, the Walker panel believed that "[i]n overhead projectors, and lab reaffirming Meek's holding ... Wolman equipment--to parochial schools or their undermined Meek's rationale." Walker, at students." Walker, at 1464-65; see Allen, at 1465; see Wolman, 433 U.S. at 238 248; Meek, 421 U.S. at 362-63; Wolman, (upholding Meek and Allen). Specifically, 433 U.S. at 237. The panel, however, was the panel concluded that Wolman had not convinced that such a distinction was "eviscerated" Meek's premise that "any still the law. In its view, subsequent state aid to the educational functions of a Supreme Court cases-- particularly, sectarian school is forbidden." Walker, at Committeefor Public Education and Religious 1465. Wolman did so, the panel reasoned, Liberty v. Regan, 444 U.S. 646 (1980), Ball, by "holding as constitutional a statute supra, and Zobrest, supra--had "clarified the under which the State prepared and holdings of Meek and Wolman, and graded tests in secular subjects" for both rendered untenable the thin distinction public and private, parochial schools. Id. between textbooks and other instructional Thus, the Walker panel announced that materials." Walker, at 1465. The Ninth the paltry sum of Meek and Wolman was Circuit thus held that "under Chapter 2, the thin distinction--unmoored from any the loaning of neutral, secular equipment Establishment Clause principles--that state and instructional materials to parochial loans to parochial schools of instructional schools does not have the primary or materials and equipment impermissibly principal effect of advancing religion." Id. advances religion, but state preparation and grading of tests and state loans of textbooks do not. Walker, at 1466.

7 In the panel's estimation, the true a symbolic union between church death-blow to Meek's textbooks vs. other and state. instructional materials dichotomy came Walker, at 1467. Applying its test, the three years later in Regan, which panel easily found that Chapter 2 passed "recognized this weak distinction and constitutional muster. First, it found that clarified that the provision of instructional Chapter 2 benefits were "neutrally materials and equipment to parochial available without regard to religion" given schools is not always prohibited." Walker, that "an overwhelming percentage of at 1466. But, as the panel recognized in beneficiaries [were] nonparochial schools the next sentence, Regan merely reaffirmed and their students." Id. (footnote omitted) Wolman by "uph[olding] a law reimbursing Second, the panel found that the parochial schools for the costs of constraints under which Chapter 2 administering tests required by the State." services were provided "adequately Id.; see Regan, at 655 ("We agree with the safeguard[ed] Chapter 2 benefits from District Court that Wolman controls this improper diversion to religious use." Id. case."). Although Regan did not deal with at 1467-68. Finally, the panel reasoned the provision of instructional materials to that, if the state-paid interpreter on parochial schools, and although Regan sectarian school premises in Zobrest did explicitly followed Wolman and said not create a symbolic union between nothing about overruling Meek, the Walker government and religion, then "certainly panel nonetheless declared with perfect having religiously neutral material and candor that equipment in the same classroom does Regan thus instructs us that the not create a symbolic union either." Id. at difference between textbooks and 1468, iting Zobrest, at 13. other instructional equipment and materials, such as science kits and Although it had already established (to maps, is not of constitutional its own satisfaction) that Meek and Wolman significance. were no longer good law, the panel went on to distinguish the aid programs in Walker, at 1466. In our view, such a those cases from Chapter 2: statement could only mean that the panel thought Regan silently overruled Meek. [T]he statutes struck down in Meek and Wolman are fundamentally The Walker panel thus adopted an different from the Chapter 2 statute Establishment Clause analysis based on at issue here. The statute in Meek what it identified as "the underlying was not neutral because it provided principle animating Establishment Clause close to $12 million in aid that was jurisprudence: government neutrality targeted directly at private schools, towards religion." Id. at 1466, citing, inter of which more than 75% were alia, Zobrest, 509 U.S. at 10. The panel church- related. Similarly, in stated its "test" as follows: Wolman, the statute was not neutral because it provided $88.8 million in Government neutrality becomes aid that was targeted directly at suspect when, in practical effect, the private schools, of which 9 6 % were governmental aid is targeted at or church-related and 92% were disproportionately benefits religious Catholic. Here, seventy-four institutions, or when, in symbolic percent of Chapter 2 benefits went effect, the governmental aid creates to public schools. Of the remaining

8 twenty-six percent ... a substantial goes hand in hand with the religious portion was allocated to mission that is the only reason for the nonreligious private schools. schools' existence. Within the institution, Indeed, over thirty percent of the the two are inextricably intertwined." private schools under the Chapter 2 Meek, at 366, quoting Lemon, 403 U.S. at program are nonreligious. Thus, 657 (opinion of Brennan, J.) (emphasis unlike the statutes in Meek and added). Lest we fall into despair, Wolman, Chapter 2 is a neutral, however, we will view the Court's cases generally applicable statute that dealing with state aid to religious schools provides benefits to all schools, of more in terms of what they did rather which the overwhelming than what they said. beneficiaries are nonparochial schools. When we take that approach, the Walker, at 1468.2 solution becomes compellingly clear and simple. Meek and Wolman have squarely held that what the government is attempting to accomplish through Chapter 2, it may not do. No case has C. struck down Meek or Wolman. * * * When we carefully review the Supreme Court's pronouncements in Meek invalidated a Pennsylvania Allen, Meek, Wolman, and Regan, it is statute that authorized the Secretary of tempting to complain that the high Court Education to lend to parochial schools has instructed us confusingly. As merely "instructional materials" which included one example, the Court in Allen registered "periodicals, photographs, maps, charts, its disagreement with the proposition sound recordings, films, ... projection "that the processes of secular and equipment, recording equipment, and religious training are so intertwined that laboratory equipment." Meek, at 354-55; secular textbooks furnished to students by see also Meek, at 354 n. 4 (complete the public are in fact instrumental in the statutory definition of "instructional teaching of religion." Allen, at 248. Only materials."). Meek is directly on point and seven years later, however, the Court was has not been overruled by any Supreme heard to say in Meek that "[t]he secular Court case. We thus "follow the case that education [that parochial] schools provide directly controls." See Agostini, 117 S.Ct. at 2017.

2 The panel also found that Chapter 2 did not violate the "entanglement" prong of In Allen, Meek, Wolman, and Regan, the Lemon, given the minimal intrusion onto Court drew a series of boundary lines the parochial schools premises by State between constitutional and monitors, and also given the "self- unconstitutional state aid to parochial policing" nature of the neutral schools, based on the character of the aid instructional materials and equipment. itself. Allen approved textbook loans to Walker, at 1469, iting, inter alia, Meek, at parochial schools because the evidence 365, and Zobrest, at 13-14. did not indicate that "all textbooks ... are used by the parochial schools to teach

9 religion." Allen, at 248. While recognizing state-required standardized tests, that books, if they were religious books, speech/hearing diagnostic services, could have the effect of indoctrination, off-premises therapeutic/guidance! the Allen Court likened the purely secular remedial services), while at the same time books at issue there to the bus striking down, based on Meek, the loan of transportation subsidized in Everson v. instructional materials to parochial Board ofEducation, 330 U.S. 1, 17 (1947): schoolchildren. See Wolman, at 236-52. neither bus rides nor purely secular The Wolman Court distinguished among textbooks had "inherent religious these various types of aid by reference to significance." Allen, at 244. While the particular attributes of the aid itself. Justices Black and Douglas dissented in See, e.g., Wolman, at 244 ("[D]iagnostic Allen, they did so based on a different services, unlike teaching or counseling, conception of the role of textbooks in have little or no educational content and parochial schools. See Allen, at 252 (Black, are not closely associated with the J., dissenting) ("Books are the most essential educational mission of the nonpublic tool of education since they contain the school."). Wolman candidly recognized resources of knowledge which the the "tension" existing between the educational process is designed to holdings in Meek and Allen and sought to exploit."), and Allen, at 257 (Douglas, J., resolve that tension by emphasizing the dissenting)("The textbook goes to the very unique character of the aid approved in heart of the education in a parochial Allen, i.e., that "the educational content of school."). Both the majority and the textbooks is something that can be dissenting opinions, however, consistently ascertained in advance and cannot be focused on the character of the aid given diverted to sectarian uses." See Wolman, at to parochial schools. 251 n. 18; see also Committeefor Public Education v. Nyquist, 413 U.S. 756, 781-82 (1973). Meek and Wolman, while both reaffirming Allen, nevertheless invalidated state programs lending instructional Contrary to the Walker panel's view, materials other than textbooks to Regan did nothing to "instruct us that the parochial schools and schoolchildren. difference between textbooks and other Meek merely intimated that the character instructional equipment and materials ... is of the aid was the determinative feature in not of constitutional significance." its holding. See Meek, at 364 ("[A] State Walker, at 1466. Regan did exactly the may include church-related schools in opposite. In seeking to harmonize the programs providing bus transportation, holdings of Meek and Wolman, the Regan school lunches, and public health Court merely observed that Meek did not facilities-- secular and nonideological forbid all types of aid to sectarian schools. services unrelated to the primary, See Regan, at 661. Indeed, as the Regan religion-oriented educational function of Court realized, if Meek stood for such a the sectarian school.") (emphasis added). proposition, then Wolman's approval of, But Wolman clarified that, in the Court's for example, the testing and grading view, the character of the aid itself services would have flown in the face of determined whether the aid was precedent. See id. Regan clarified that Meek constitutional. Wolman did so by only invalidates a particular kind of aid to upholding several different types of aid parochial schools--the loan of (textbooks, administration of instructional materials. See id. at 662.

10 The Walker panel made a flawed Since Walker was decided before the attempt to avoid the holdings of Meek and Supreme Court handed down Agostini, we Wolman by "distinguishing" the statutes at should add that Agostini also does not issue in those cases from the Chapter 2 overrule Meek or Wolman; nor does program. The panel opined that the Meek Agostini dismantle the distinction between and Wolman statutes were "fundamentally textbooks and other educational materials. different" from Chapter 2 because they In fact, Agostini does not even address that were not "neutral." Walker, at 1468. By issue. Agostini does, it is true, discard a this, the panel meant that the challenged premise on which Meek relied--i.e., that programs in Meek and Wolman directly "[s]ubstantial aid to the educational targeted massive aid to private schools, function of [sectarian] schools ... the vast majority of which were necessarily results in aid to the sectarian religiously-affiliated. See id. By contrast, school enterprise as a whole." Meek, at the panel distinguished Chapter 2 as a 366, 95 S.Ct. 1753 (emphasis added). But "neutral, generally applicable statute that Agostini does not replace that assumption provides benefits to all schools, of which with the opposite assumption; instead, the overwhelming beneficiaries are Agostini only goes so far as to "depart[] nonparochial schools." Id. But Walker from the rule ... that all government aid misunderstood the aid programs struck that directly aids the educational function down in Meek and Wolman. of religious schools is invalid." Agostini, 117 S.Ct. at 2011 (emphasis added). Agostini holds only that the aid at issue Those cases dealt with general aid there (i.e., the on-premises provision of programs designed to provide equitable special education services by state- paid benefits to both public and nonpublic teachers) was not the kind of schoolchildren. See Meek, at 351-52 (* * *) governmental aid that impermissibly (citations omitted), and Wolman, at 234. advanced religion. Id. 2016. Agostini says The Meek and Wolman Courts, however, nothing about the loan of instructional dedicated their discussion to those parts materials to parochial schools and we of the programs that channeled aid to therefore do not read it as overruling Meek nonpublic schools, because it was the or Wolman. Agostini only instructs us that character of the aid provided to those Meek's presumption regarding schools, and not the relative percentages instructional materials should not be of aid distributed between public and applied to state-paid teachers on parochial nonpublic schools, that was determinative. schools premises. See Agostini, at 2012; see See Walker, at 302 n. 1 (Reinhardt, J., also Ball, 473 U.S. at 395-96 (applying dissenting from denial of en banc Meek and Wolman to state-paid teachers). rehearing). Thus, the percentages discussed in Meek and Wolman were completely irrelevant to the D. constitutionality of the programs at issue Applying Meek and Wolman, we hold there, as was the fact that the general aid that Chapter 2, 20 U.S.C. §§ 7301-7373, programs might have been implemented and its Louisiana counterpart, two separate statutes. The Court by La.Rev.Stat.Ann. §§ 17:351- 52, are observed in Meek, in a different context, unconstitutional as applied in Jefferson of no constitutional significance that "it is Parish, to the extent that either program is codified in whether the general program permits the loaning of educational or one statute or two." Meek, at 360 n. 8.

11 instructional equipment to sectarian "textbook" has generally been defined by schools. By prohibiting the loaning of the case law as "a book which a pupil is such materials, our decree encompasses required to use as a text for a semester or such items as filmstrip projectors, more in a particular class he legally overhead projectors, television sets, attends." Allen, at 239 n. 1. We do not motion picture projectors, video cassette think library books can be subsumed recorders, video camcorders, computers, within that definition. printers, phonographs, slide projectors, etc. See, e.g., Meek, at 354 n. 4. Our decree also necessarily prohibits the furnishing of We therefore REVERSE Judge library books by the State, even from Livaudais' grant of summary judgment in prescreened lists. We can see no way to favor of Defendants and RENDER distinguish library books from the judgment declaring Chapter 2, 20 U.S.C. "periodicals ... maps, charts, sound §§ 7301-7373, and its Louisiana recordings, films, or any other[] printed counterpart, La.Rev.Stat.Ann. §§ 17:351- and published materials of a similar 52, unconstitutional as applied in nature" prohibited by Meek. See id. at 355 Jefferson Parish. (internal quotes omitted). The Supreme Court has only allowed the lending of free textbooks to parochial schools; the term

12 WHITE HOUSE SEEKS RULING ON PRIVATE SCHOOL AID

The New York Times

Sunday, June 6,1999

Linda Greenhouse

Raising the stakes in the debate over a prospect significantly enhanced by the public aid to parochial schools, the Administration's intervention. The fact Clinton Administration is asking the that another Federal appeals court, the Supreme Court to review a Federal court's Ninth Circuit in San Francisco, reached an finding that it is unconstitutional for opposite conclusion three years earlier public schools to provide computers and also adds to the likelihood that the other "instructional equipment" for use in Justices will add the case to their docket religious school classrooms. for the next term. The Administration has proposed The Fifth Circuit case began as a spending $800 million on an educational challenge to a provision of the Elementary technology program that would, among and Secondary Education Act of 1965 other things, help connect every under which public schools receive classroom and school library in the Federal aid for special services and country to the Internet. But the little- equipment, including computers, and noticed ruling last August by the United must share the material on a "secular, States Court of Appeals for the Fifth neutral, and nonideological" basis with Circuit, in New Orleans, poses a students enrolled in private schools within formidable constitutional obstacle to that their boundaries. Several taxpayers in goal, as the Administration told the Jefferson Parish, La., where 41 out of 46 Supreme Court in a brief it filed last private schools were religious, objected month. that this aspect of the program was unconstitutional and filed a lawsuit in The Administration's brief supports a 1985. group of parochial school parents from the New Orleans area who are appealing The case had a tangled history before the decision. finally reaching the appeals court last year. Writing for a three-judge panel, Judge The implications of the case reach far John M. Duhe Jr. opened his opinion by beyond classroom computers to the highly commenting that "this case requires us to charged question of where -- and how -- find our way in the vast, perplexing desert to draw the line between permissible and of Establishment Clause jurisprudence." prohibited Government assistance to He then went on to find that a series of religious schools. Although the question Supreme Court decisions on parochial of publicly financed vouchers for religious school aid, dating from the 19 7 0's, had school tuition is not directly at issue, the drawn a fairly clear line between the stakes are high for that constitutional permissible and the prohibited, based on debate as well. the "character of the aid itself." The Court is likely to announce later Textbooks in secular subjects were on this month whether it will hear the appeal, the permissible side of the line, Judge

13 Duhe said, because in the Supreme an accurate statement of the majority's Court's view, the public school district view. The brief invites the Justices to re- could screen the books in advance to examine the precedents and adopt "a make sure that they would not be used as more nuanced rule" that would permit part of a parochial school's religious public schools to provide computers and mission. But he said the precedents made other instructional equipment to parochial clear that other material, with less easily schools as long as safeguards were in place confined and ascertainable content, more to make sure the material would not be subject to diversion to religious purposes, diverted to religious use and would not was off-limits. "supplant resources that the school itself would otherwise provide or obtain." Whether the Fifth Circuit's view of the current state of the law is accurate is Although cases in the lower courts obviously open to debate, given the Ninth seeking or challenging tuition vouchers Circuit's conflicting opinion in a similar for parochial schools have been receiving case. So the real question in this case, headlines, this case has been the focus of Mitchell v. Helms, No. 98-1648, is where intense interest among lawyers and others the Justices think their precedents place who monitor church-state developments. the line, and whether they are prepared to The parochial school parents bringing the adjust or jettison those precedents to appeal are represented by Michael W. make room for technology that was not McConnell, a law professor at the even on the horizon a quarter-century University of Utah whose articles and ago. advocacy for the view that religious and secular institutions are constitutionally Two years ago, in a case from New entitled to equal treatment have been York that concerned another provision of highly influential over the last decade. the same 1965 Federal education law, the Court explicitly overturned an earlier In his brief, Mr. McConnell decision and ruled that the Constitution maintained that the Fifth Circuit's permitted public school teachers to offer decision "consigns those who attend remedial courses in parochial school religiously affiliated schools to the use of classrooms. Justice Sandra Day textbooks under the program, while O'Connor's opinion for a 5-to-4 majority children of other taxpayers are using in that case, Agostini v. Felton, said the graphing calculators to solve polynomial Court's "understanding of the criteria equations and reading about the latest in used to assess whether aid to religion has Mesopotamian archeological discoveries an impermissible effect" had changed and on CD-ROM's." that a 1985 decision barring public school Lee Boothby, a Washington lawyer teachers from parochial classrooms was and well-known advocate of strict church- accordingly no longer good law. state separation, has represented the In his brief for the Administration in plaintiffs in this case since they filed their the current case, Solicitor General Seth P. lawsuit 14 years ago. "What's really at Waxman cited the Agostini decision as an stake," he said in an interview this week, indication that the "broad categorical "is whether we will abandon the concept rule" the Fifth Circuit derived from the the Court has historically followed of not Supreme Court's precedents, with providing any direct aid" to parochial textbooks on one side of the line and schools. "The Court is being asked to everything else on the other, is no longer reject some pretty bedrock no-direct-aid

14 principles," he said, adding that if the Justices accepted that invitation, "I don't know where you draw the line."

15 JEFF CASE SPOTLIGHTS SCHOOL AID BATTLE High Court Weighs Church-State Issue

The Tines-Picayune

Tuesday, June 15, 1999

Bill Walsh, Washington Bureau

Seizing upon a Jefferson Parish case It could, legal experts said, even be that has meandered through the courts for used to signal whether it would be 14 years, the U.S. Supreme Court signaled constitutional for government vouchers to Monday that it is once again prepared to be used to pay tuition at private and venture into the turbulent debate over church-run schools. whether public aid should be given to The court's decision to review parochial schools. Mitchell v. Helms was not altogether The court decided to hear the unexpected. Recent lower court rulings Louisiana lawsuit, which challenges the have raised questions about exactly how use of taxpayer money to transport and high the wall between church and state provide equipment for parochial schools, should be when it comes to educational a month after the Clinton administration financing. And when the administration complained that its goal of linking all seeks a legal clarification, as Solicitor American classrooms to the Internet General Seth Waxman did in May, the would be subverted by a lower court Supreme Court is inclined to take a hard ruling in the case blocking certain public look. grants to religious schools. For the original plaintiffs, a group of The Supreme Court's decision, which public school parents in Jefferson Parish, probably won't be handed down until the Supreme Court review is just the next 2000, is expected to clarify whether, or in stop in a circuitous and frustratingly long which cases, the public should underwrite legal odyssey. private and parochial education. It is an "It's slow justice (but) we at least have interest around the country issue of keen been given or opportunity to be heard," and especially in the New Orleans area said Neva Helms of Metairie, whose 26- where the Catholic Archdiocese operates year-old daughter, Amy, was in middle 104 schools that receive millions annually school when the suit was filed in in government assistance. federal December 1985. Helms, who was an "It's a burning question, the active volunteer with the Jefferson Parish government's effort to assist parochial public school system, was stirred to action schools," said Paul Baier, a constitutional when she learned that parochial school expert at the Louisiana State University students in her neighborhood were being Law School. "The court has been backing shuttled to their classrooms on publicly away from any rigid interpretation of subsidized buses. She soon found out that church versus state. It looks like the court 32 percent of money Jefferson Parish wants to elaborate on it even further." received from a federal education program -- more than $655,000 in 1984-1985 -- went to private schools.

16 With the financial backing of as well. The solicitor general urged the Americans United for Separation of court in his brief last month to expand the Church and State, Helms and two other interpretation even more. parents sued local, state and federal Attorneys representing education officials challenging a variety of parochial school parents argued that the 5th Circuit taxpayer expenditures on private schools, ruling limiting the use of education grants including busing, special education unfairly punishes students attending training and classroom equipment. private schools. Americans United issued a statement Monday calling the case "the most "It consigns those who attend important church-state lawsuit to come religiously affiliated schools to the use of before the Supreme Court in over two textbooks under the program, while decades." children of other taxpayers are using graphing calculators to solve polynomial The court will review a U.S. 5th equations and reading about the latest Circuit Court of Appeals decision out of Mesopotamian archeological discoveries New Orleans last August that struck down on CD-ROMs," attorneys wrote in their the federal education program by ruling brief to the Supreme Court. that it is unconstitutional to spend public money on religiously affiliated elementary The stakes are high for religiously and secondary schools, except for affiliated schools locally and around the textbooks. nation. The court came to that decision after A spokesman for the Archdiocese of reviewing a long line of cases that sought New Orleans said that its schools in the to delineate which public expenditures for eight New Orleans area parishes received private schools were proper, and which $17 million in federal education-related were not. It is apparent from the financing in the 1997-1998 school year. introduction to Judge John Duhe Jr.'s Although not party to the suit, the opinion for the three-judge panel just how archdiocese has kept a close eye on the murky the church-state issue is. litigation. "This case requires us to find our way "The Archdiocese is hopeful that in in the vast, perplexing desert of light of recent Supreme Court decisions, jurisprudence" on the issue, Duhe wrote, the court will clarify that the federal law is, noting that in the almost 14 years since indeed, valid," the archdiocese said in a the Jefferson Parish case was filed, "the statement Monday. sand dunes have shifted." Baier, the LSU law professor, said the Indeed they have. In the 1970s, the Supreme Court has been itching for years U.S. Supreme Court seemed to draw a to leave its mark on church-state sharp line between church and state when jurisprudence, but how far the court will it came to education financing. But in reach remains unclear. recent years, the court has identified some He said it's possible that the decision exceptions to its rule. In 1993, it said that could even have an impact on the highly public school districts can provide sign contentious issue of government vouchers language interpreters to deaf children at for students who attend religiously parochial schools. Then, in 1997, the affiliated schools. court said public school teachers can offer remedial aid to parochial school students

18 SUPREME COURT WILL REVIEW HIGH-TECH AID TO RELIGIOUS SCHOOLS

The Washington Post

Tuesday, June 15, 1999

Joan Biskupic, Washington Post Staff Writer

The Supreme Court agreed yesterday Circuit based on the West Coast, ruled the to decide whether taxpayer funds can be opposite. used to pay for computers, software and The federal program at issue in other library equipment in parochial Mitchell v. Helms flows from the schools. The court's ultimate ruling will Elementary and Secondary Education Act likely influence the contentious of 1965, which gives public school nationwide debate over the use of publicly districts money for special services and financed vouchers to help students attend instructional equipment and requires the religious schools. funds to be shared with nonpublic schools Further fueling broad interest in the within the district. case, which will be heard by the court next "This case vitally affects the quality of fall and likely decided in 2000, is its education available to over a million relationship to the Clinton schoolchildren nationwide," the New administration's proposal to connect all Orleans parents said in their appeal to the classrooms--in both public and private Supreme Court. "Congress has wisely schools--to the Internet. Although the recognized that the national interest is administration opposes the use of public served when all schoolchildren have vouchers to pay for religious schools, it access to supplementary educational has taken the other side in the case before resources and equipment in keeping with the Supreme Court, supporting the New this fast-moving, technological age, Orleans parochial school parents who without regard to whether their schools have appealed a lower court's are public or private, religious or secular." interpretation of federal education law The taxpayers who have urged the that would bar such public high-tech high court to affirm the 5th Circuit say assistance to religious schools. providing computers, software and other At its broadest, the dispute will offer resource equipment beyond textbooks is the court an opportunity to clarify its unconstitutional because "it provides doctrine on the constitutional separation direct aid . .. [and] the items furnished are of church and state and provide guidance easily divertable to religious and sectarian on permissible aid to religious schools. school administrative purposes." Although the 5th U.S. Circuit Court of The 5th Circuit's 1998 decision relied Appeals ruled last year that federal funds primarily on Supreme Court rulings that could not be used to provide educational have generally prohibited the government materials other than textbooks to religious from providing educational materials schools, another appeals court, the 9th other than textbooks to parochial schools.

19 But in recent years, the Supreme Court state program that provides financial has begun to permit more government assistance to private colleges, but the support for and involvement in religious Maryland Higher Education Commission programs, for example, by permitting has concluded that Columbia Union is public school teachers to provide remedial "too religious" to participate. A federal help at parochial schools. appeals court has ordered an investigation to determine whether the school is Separately, the court, over the lone "pervasively sectarian" and thus ineligible dissent of Justice Clarence Thomas, for the state aid. (Columbia Union refused to intervene in an ongoing case College v. Clark) involving Columbia Union College in Takoma Park. The college, affiliated with Copyright C 1999 The Washington Post the Seventh-Day Adventist Church, is seeking financial aid under a Maryland

20 ESTABLISHING RELIGION OR AIDING SCHOOLS?

The News and Observer (Raleigh, NC)

Monday, June 21,1999

James Kilpatrick, Universal Press Syndicate

WASHINGTON - The story is told nonpublic school, up to a maximum of S of Sisyphus, king of Corinth. He angered 2,500. The checks are made payable to Zeus, who banished him to the parents, who endorse them in turn to the Underworld. There he was condemned child's school. Most of the nonpublic for all eternity to push a heavy stone up a schools are Catholic parochial schools. Is hill, only to have the stone roll down Ohio's law a law respecting an before he reached the top. establishment of religion? Something like this is happening at the On the same day, May 27, the Supreme Court. The Supremes keep Supreme Court of Maine took off in struggling with the intractable mysteries of another direction. The state had the Constitution's establishment clause. established a program of tuition grants for Every time the court thinks it has solved children residing in thinly populated areas one mystery, the stone rolls back down that have no public schools. The plan again. specifically excludes children who wish to The Constitution says, with murky attend denominational schools. The U.S. clarity, that "Congress shall make no law Constitution says that Maine cannot deny respecting an establishment of religion." to any person the equal protection of its laws. Does this discrimination The high court has extended that edict to against Catholic the states, but the court has found children deny them equal protection? The Maine court unceasing difficulty in defining such said it does not. obscure words as "no law," "respecting," "establishment" and "religion." The U.S. Court of Appeals for the 5th Circuit ruled last August Now, here we go again. Cases that Louisiana has violated the establishment clause involving state aid to pupils attending in its handling of a federal program known as church-sponsored schools are rolling up Title VI. Now the case like thunderclouds on a summer is pending for review by the Supreme Court. afternoon. The cases come from Ohio, Maine, Arizona and Louisiana, following Using Title VI money, Louisiana buys in the train of landmark cases from a wide variety of instructional equipment. Wisconsin and New York. Everyone The equipment then is lent to individual wants a piece of the action. public and nonpublic schools. Taxpayers in Jefferson Parish complained On May 27, the Supreme Court of that the program unconstitutionally Ohio upheld a program providing tuition benefits establishments of religion. vouchers for the children of low-income families in Cleveland. The vouchers are in The Clinton administration defends the form of tax credits covering 75 the Title VI program. The solicitor general percent to 90 percent of tuition costs in a emphasizes the "secular, neutral and

21 nonideological" nature of the grants. The schools. At least 70 percent of the idea is to supplement, not to supplant, nonpublic schools are church-related. existing state funding. The states monitor Participating taxpayers send their the use made of the federal money to checks not to the state treasurer, but as assure that it does not go to sectarian voluntary contributions to an STO purposes. (School Tuition Organization). The STOs The government's argument did not then parcel out the money to the children, impress the 5th Circuit. It ruled that (1) hence to the schools. Does the plan Louisiana's program advances the cause of violate the equal protection clause? religion, and (2) the monitoring entangles Opponents of the plan call it a sham. The the state with the church. The 9th Circuit Arizona Supreme Court found it OK. has upheld an almost identical program in As an editor and columnist, I have California. The intercircuit conflict may supported the concept of tuition grants compel the high court to grant review. for the past 40 years. I see no reason why A complex arrangement from Arizona the neutral, secular benefits provided by also is pending for review. Under state the state to children in public schools law, any Arizona taxpayer, with or without should be denied to children in private children in schools, may direct that up to schools. That's my opinion. Next year we $ 500 of income tax obligation will be will get the court's opinion. Again. used to provide scholarships and tuition grants to students attending nonpublic Copyright C 1999 The News and Observer