Although it is frequently attacked as an elitist institution with no regard for the public will, the Supreme Court is hardly immune to cultural and political trends. Justices are, after all, appointed by presidents with particular ideological agendas, shaped partly by polls. Once they ascend to the bench, a few appointees may surprise and disappoint their political patrons, but many do not. So, at least indirectly, the political preferences of voters wield considerable influence on the Court. It was no coincidence that the Supreme Court toyed with invalidating capital punishment in the early 1970s, when public support for it was relatively low; it's not surprising that as support for the death penalty has increased (along with the conservative hold on government), the Court has committed itself to expediting executions. It's worth noting that Roe v. Wade, the 1973 decision invalidating abortion prohibitions, which anti-abortion activists consider the epitome of judicial arrogance, actually coincided with growing public support for abortion rights.
The current wave of religious revivalism is likely to exert similar influence on the Court. In fact, a slim majority of the justices have already demonstrated their sympathy for state-funded religious activities. In the 1995 case of Rosenberger v. University of Virginia (decided by a five-to-four vote), the Court held that a public university was required to fund an evangelical student newspaper, as it funded other, secular student activities. In 1997 it ruled in Agostini v. Felton (another five-to-four decision) that federal tax dollars may be used to pay teachers who conduct remedial classes in parochial schools as well as those in public schools. Agostini directly overruled a 1985 (five-to-four) case, Aguilar v. Felton.
Do the decisions in Rosenberger and Agostini effectively endorse government support of sectarian activities, in violation of the First Amendment, or do they prevent government discrimination against religion? That is the question dividing the Court. In Rosenberger, the majority held that a denial of university support for a sectarian student newspaper would constitute "viewpoint discrimination." The dissent pointed out that the newspaper was not a vehicle for discussing different viewpoints about religious issues; it was engaged in religious proselytizing, which a state university may not sponsor. In Agostini, the majority observed that the federal program at issue disbursed funds to public agencies providing services to all children in need, regardless of where they attended school. The dissent stressed that federal funds were being used to teach such basic subjects as math and reading in parochial schools, which effectively subsidized religious education.
A quick review of the most important decisions involving government support of private parochial schools demonstrates the Court's difficulty in deciding when state aid simply provides standard, secular services to students in religious schools (like bus transportation) and when it substantially enhances a school's ability to provide religious education or threatens to entangle government in parochial school administration.
Long ago, in the 1930 Louisiana case Cochran v. Louisiana State Board of Education, the Supreme Court held that states may loan textbooks to religious schools, and in a 1947 case, Everson v. Board of Education, the Court upheld a program reimbursing parents for the costs of busing their kids to parochial schools. In 1993, the Court held in Zobrest v. Catalina Foothills School District that federal funds could be used to provide sign language interpreters to deaf students in parochial schools.
The legal principle governing cases involving state support of secular activities in private religious schools (and religious activities in public schools) was formulated in the landmark 1971 case Lemon v. Kurtzman. Lemon involved challenges to two state laws: a Rhode Island law supplementing the salaries of teachers in parochial schools, who taught secular subjects, relying on material used in public schools, and a Pennsylvania law reimbursing parochial schools for teachers' salaries, textbooks, and "other instructional material," used for secular educational purposes. Both laws were struck down because they were likely to entangle government in the affairs of religious schools.
Lemon announced a three-part test: The state law at issue must have a secular purpose; its primary effect must "neither advance nor inhibit religion"; and it must not lead to "excessive government entanglement with religion." (The Court has since tinkered with thisthree-prong test enunciated nearly 30 years ago, and subsequent rulings have left its continuing vitality in question, but the decision in Lemon v. Kurtzman has not been overruled.)
In Lemon, the Court held that the Pennsylvania and Rhode Island laws had clear secular purposes--enhancing the secular functions of religious schools. But both laws relied on a theoretical divide between secular and sectarian teachings in these schools that was very difficult to maintain in practice. In Rhode Island, for example, parochial schools were "an integral part of the religious mission of the Catholic Church." The Court had previously upheld state loans of secular textbooks to Catholic schools, but teachers are different from textbooks, Chief Justice Warren Burger observed. In addition, teachers were under "religious control and discipline." How could the prohibitions on religious proselytizing by state-subsidized parochial school teachers be enforced? "A comprehensive, discriminating, and continued state surveillance will inevitably be required... ."
Thus, the state may not subsidize teachers in the direct employ of parochial schools, but it may provide students with textbooks. Can the state share other educational materials with private religious schools? In a 1975 case, Meek v. Pittenger, the Court struck down a Pennsylvania law providing parochial schools with "instructional material and equipment" (other than textbooks) such as maps, charts, films, and audio-visual equipment. In Meek the Court observed that these materials were not loaned to the students but directly to religious schools and that they constituted about $12 million in annual aid to these schools. This program inevitably advanced religion in violation of the First Amendment, the Court held: Parochial schools were largely "devoted to the inculcation of religious values and beliefs... . Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole."
But the Court and the culture have changed in the past 25 years. State aid to parochial schools has become increasingly popular, and federal courts have divided on the continued viability of the distinction between textbooks and other instructional materials enunciated in Meek. The question of whether the state can furnish parochial schools with educational equipment, notably computers, is before the Supreme Court once again, in a case closely watched by advocates and opponents of school vouchers.
Mitchell v. Helms is a challenge brought to a federal program that provides parochial schools with money to purchase instructional equipment, including computers. The plaintiffs in this 14-year-old case, Mary Helms and Marie Schneider, reside in Jefferson Parish, Louisiana, where in one year (1984-1985), parochial schools received 30 percent of federal funding for local schools under the challenged program. This case partly reflects the problem confronted in Lemon v. Kurtzman--the difficulty of limiting public funds to secular purposes. Computers are more like parochial school teachers than textbooks, one of the plaintiffs, Mary Helms, suggested in USA TODAY: "The computers the public is paying for could be used to put out the church bulletin, and that's not right."
The Federal Court of Appeals for the Fifth Circuit agreed that the purchase of computers impermissibly advanced religion, and (citing Meek) it barred the government from purchasing anything but textbooks for religious schools. That ruling is now being reviewed by the Supreme Court; arguments were heard in December 1999 (and described briefly by New York Times reporter Linda Greenhouse).
The Clinton administration joined parochial school parents fighting to uphold the federal program, although in argument before the Court, the administration conceded that government aid could be unconstitutional if it "subsidized the core functions of a religious school." Law professor Michael McConnell, who has been leading the assault on separation of church and state for several years, represented Louisiana's parochial schools. He argued that the distinction between textbooks and computers invoked by the federal court of appeals was anachronistic. Opponents of the federal aid program were "mired in the technology of the 1970s and the doctrine of the 1970s."
Representing the parents opposed to parochial school aid, Washington lawyer Lee Boothby stressed that the doctrine prohibiting state sponsorship of religious schools was not just dated but "historic... . [T]axpayers must not be compelled to subsidize religious education in sectarian schools."
Advocates of vouchers and other programs providing substantial financial aid to religious schools or students sometimes argue that aid is not only allowed but required by the First Amendment. A state university's refusal to support sectarian religious activities by students was a form of discrimination, Michael McConnell successfully argued in the Rosenberger case. The government's refusal to provide parochial schools with computers would unfairly deprive students of benefits available in public schools, he argued in Mitchell v. Helms.
You might reply that students who seek the benefits of public schools are free to attend them. Or you might simply wonder at the irony of conservatives arguing that constitutional liberties (like the freedom to attend a religious school) imply constitutional entitlements to government funds. Where was McConnell when feminists were seeking Medicaid funding for abortions? The argument for state aid to parochial schools might have some appeal if there were no constitutional prohibitions on establishing religion and no underlying moral and practical reasons for avoiding state-sponsored sectarianism.
Of course, the Supreme Court can uphold the provision of parochial school aid without establishing an entitlement to it. The question before the Court is the permissibility of state aid. (What is permitted is not mandated.) But a decision that allows the government to wire parochial schools, providing them with substantial financial support, will probably presage a decision upholding voucher programs and encouraging the creation of a state-supported system of religious schools. Mitchell v. Helms will help determine whether the constitutional prohibition on establishing religion is as outdated as the typewriter.