By just glancing at the title page, defenders of church-state separation knew they were in trouble June 28 when the Supreme Court handed down a major ruling on parochial school aid: The decision was authored by Justice Clarence Thomas.
Thomas is a relentless advocate for public funding of religious enterprises. And true to form, the opinion he wrote that day knocked a gaping hole in the wall of separation between church and state, holding in a Louisiana lawsuit that the government may provide computers and other resources to religious schools.
In the ruling, Thomas outlined his belief that government has sweeping authority to grant public funds to religion a policy that, if ever adopted by a court majority, would surely lead to a high court blessing of school vouchers. The only reason his view is not law today is that Thomas was able to muster only three of his colleagues to endorse it. Joining Thomas in backing this radical approach were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy.
Two others, Sandra Day O'Connor and Stephen Breyer, concurred with Thomas' result, but refused to accept his reasoning. Thus, while a six-justice bloc voted to uphold the parochial school aid under consideration, the decision apparently does not fling the door open wide to vouchers and other forms of more direct government assistance to parochial schools. There's no denying, however, that the Mitchell v. Helms decision may have propped the door open a crack.
At issue in the case was a federal program known as Chapter 2 of the Elementary and Secondary Education Act of 1965. Now renamed Title VI, the program gives federal funds to public schools for purchasing computers, textbooks and other educational materials. But there's a catch: Public schools must share the largess with religious and other private schools.
That requirement led to a court challenge of Chapter 2 in 1985. Launched with legal support from Americans United, the lawsuit featured plaintiffs who are parents and taxpayers in suburban New Orleans, led by Mary "Neva" Helms of Jefferson Parish.
Helms was angry because local Roman Catholic schools were awash in federal and state money at a time when her daughter's public school was wanting. A second plaintiff, Marie Schneider, an active Catholic who sent her children to both public and parochial schools, shared Helms' opposition to tax aid for religious education.
At the time the case was filed, the Supreme Court and lower federal courts were more separationist in outlook, and the prospects for victory looked good. For a variety of reasons, however, the case got bogged down in a legal quagmire, languishing in the lower federal courts for more than a decade.
During that period, Presidents Ronald Reagan and George Bush made a number of appointments to the Supreme Court and lower federal courts, many of whom were decidedly hostile to church-state separation. The legal landscape began to change.
A federal judge upheld the Chapter 2 program in 1997. At that point, the Council for Religious Freedom picked up sponsorship of the case and filed an appeal. Two years ago, the U.S. 5th Circuit Court of Appeals struck down the program.
In its decision, the 5th Circuit majority complained that the Supreme Court's rulings on aid to religious schools had become inconsistent and confusing. The decision was an open invitation for the high court to hear the case. Sure enough, the justices agreed to do so.
The Supreme Court's 6-3 ruling overturns the 5th Circuit's decision. In doing so, Thomas and the court majority wiped two church-state precedents off the books completely Meek v. Pittenger (1975) and Wolman v. Walter (1977). The two decisions, issued during the court's high-water mark of defending church-state separation, struck down programs in Pennsylvania and Ohio that were designed to aid parochial schools by "lending" them books, audio-visual materials and other instructional equipment.
Casting aside precedent, Thomas declared that taxpayer funding of religious groups is permissible, even if those organizations use the money to spread sectarian messages. He went so far as to assert that failing to give such aid to religious institutions would constitute bigotry.
"If the religious, irreligious and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government," Thomas wrote.
Perhaps most alarmingly, Thomas brushed aside concerns about government aid flowing to "pervasively sectarian" institutions. This principle which asserts that government aid to overwhelmingly religious entities such as churches and church schools inevitably advances religion has been a staple of church-state legal theory for decades, but Thomas blithely dismissed it. He acknowledged that previous court decisions have barred such aid but wrote, "[T]here was a period when this factor mattered, particularly if the pervasively sectarian school was a primary or secondary school. But that period is one that the court should regret, and it is thankfully long past."
Thomas clearly went too far for O'Connor. In her concurring opinion, she asserted that the Thomas-led bloc had announced "a rule of unprecedented breadth" and called it "troubling."
Nevertheless, O'Connor could not bring herself to find Chapter 2 aid unconstitutional. She wrote that the aid under challenge in Helms is permissible in part because there are safeguards in the law that supposedly make sure that church-state separation is respected and "no Chapter 2 funds ever reach the coffers of religious schools; the aid must be secular...."
Americans United has charged that the "safeguards" are virtually meaningless, poorly enforced and open to violation. O'Connor's language, however, gave separationists grounds for hope that O'Connor and Breyer might regard vouchers with greater skepticism, since voucher aid flows directly from the public treasury into religious school coffers.
Justice David H. Souter led a sharp dissent, joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Souter traced the long history of the high court's wrangling over tax aid to parochial schools and wrote of the plurality's new rule, "its errors are manifold." If the Thomas standard were adopted, he charged, it would "replace the principle of no aid with a formula for generous religious support."
Observed Souter, "Under the plurality's regime, little would be left of the right of conscience against compelled support for religion; the more massive the aid the more potent would be the influence of the government on the teaching mission; the more generous the support, the more divisive would be the resentments of those resisting religious support, and those religions without school systems ready to claim their fair share."
Americans United sharply criticized the majority's ruling. "The Supreme Court took a sledgehammer to the wall of separation between church and state today," said Barry W. Lynn, executive director of Americans United. "Thanks to this misguided decision, taxpayers will now be forced to pay for an endless parade of computers and other expensive equipment for religious schools."
Lynn added, "This is the first time in Supreme Court history the justices have allowed a resource to be given to parochial schools that can readily be diverted to religious purposes. At public expense, religious schools can now have students surf the Internet to read the Bible in religion classes, learn theology from Jerry Falwell or download crucifixes as screen savers."
Lynn said he was appalled by Thomas' plurality opinion, which the AU director charged is so radical that if ever implemented it would force Americans to support religious groups against their will and essentially reintroduce the principle of church taxes.
"Regrettably, we can now expect religious schools to clamor for an ever increasing number of services paid for with tax dollars," Lynn concluded. "The arrangement approved today will also free up their private resources to promote even more of their religious mission, which is, after all, the central purpose for these schools."
Pro-voucher and Religious Right groups applauded the decision. Clint Bolick of the Institute for Justice issued a press release insisting that the Helms decision will lead to a high court blessing of vouchers.
The Family Research Council, a right-wing group closely aligned with James Dobson's Focus on the Family, issued a similar statement. "Providing entirely secular materials to parochial schools in no way establishes religion," said FRC's Jan LaRue. "Taxpayer dollars should be distributed equally among all school children, regardless of what their religious beliefs are."
Other Religious Right groups called for even more government aid to religious schools. The day after the decision, Gordon Robertson, sitting in for his father, TV preacher Pat Robertson, on "The 700 Club," applauded the ruling and urged viewers to swamp their state legislatures with demands for vouchers.
The decision also garnered praise from the Clinton administration, which defended the Chapter 2 law in court. Education Secretary Richard W. Riley said the Helms decision "will help ensure that equitable, supplemental services are provided to children...and that all children have access to computers and advanced technologies." (Although Clinton opposes vouchers, the administration is promoting a project to use tax funds to ensure that all schools in the nation religious and other private schools included are wired to the Internet. Had the Supreme Court voted to strike down Chapter 2 aid, this project would have been similarly imperiled.)
Continued Riley, "The Court's decision today is not about vouchers. Under the current Title VI program, no funds go to any private school. The program remains under public control. The Administration remains opposed to taking away money from public schools for taxpayer-funded vouchers for students to attend private and religious schools."
Analysts at Americans United said Riley and Clinton are playing a dangerous game by goading the court to approve this type of parochial school aid. They noted that the Supreme Court has been gradually chipping away earlier decisions barring government support for religious schools and charged that if the trend continues, public education is bound to suffer.
Can anything be done to remedy the disappointing ruling in Helms? For the time being, Americans United is stepping up its educational activities and countering propaganda by religious school aid advocates who insist the decision has legalized vouchers.
Americans United Legal Director Steven K. Green says vouchers remain a separate issue, and he noted that a case dealing squarely with that issue may reach the high court soon. Last month Green attended the oral argument in Harris-Simmons v. Zelman, an Ohio case challenging Cleveland's voucher program currently pending before the U.S. 6th Circuit Court of Appeals.
Green, an expert on the legal issues surrounding vouchers, has analyzed the Helms decision and said he finds O'Connor's concurring opinion perplexing. The AU legal director says some of O'Connor's language indicates she may take a more skeptical view of the constitutionality of vouchers. But Green concluded that some of her words point in the other direction and said the only thing clear about O'Connor's oblique concurrence is that no one can safely predict how she will vote on the issue.
One legal analyst, Kathleen M. Sullivan, dean of Stanford Law School, believes the court does not yet have a pro-voucher majority. Writing in The New York Times, Sullivan noted that four justices would clearly uphold vouchers and added, "But these four justices do not yet have a clear fifth vote for the constitutionality of vouchers. Justice Sandra Day O'Connor went to great lengths in a separate, but concurring opinion, joined by Justice Stephen Breyer, to caution that the court must still review aid programs carefully to make sure they do not support too much religious indoctrination."
AU's Lynn concluded that the situation is clearly fraught with peril. "If Thomas and the three justices who think like him on the Supreme Court have their way, Americans will be forced to pay taxes to support a staggering array of religious schools and ministries," he said. "The wall of separation between church and state is still standing, but if these four prevail, there will be nothing left of it but rubble."