In a case the Clinton administration says could determine the scope of its efforts to connect every classroom in America to the internet, the Supreme Court has agreed to decide whether computers and other instructional materials paid for with taxpayer money can be used by religious schools.
At issue is a provision of the Elementary and Secondary Education Act (ESEA) of 1965, which gives money to public schools for special services and instructional equipment. Public school districts are required to share the equipment in a “secular, neutral, and nonideological” way with students enrolled in private schools within their boundaries.
Last year, a New Orleans-based federal appeals court struck down the provision by ruling it was unconstitutional for the Jefferson Parish, Louisiana, school system to lend or give computers purchased with federal funds to religiously affiliated schools within the district.
The appeals court based its decision on an earlier Supreme Court distinction between textbooks and other educational materials. In a series of school aid cases in the 1970s, the high court ruled it was lawful for public schools to lend textbooks to parochial schools. At the same time, the court ruled that other instructional materials crossed the line of separation between church and state.
Lawyers for the parents of parochial school children in Louisiana say the decades-old interpretation should be expanded to permit the sharing of twenty-first century instructional materials as well as textbooks. They say the casefirst brought before the courts by three Jefferson Parish taxpayers in 1985is about giving students access to “modern technological equipment and materials.”
“(The appeals court ruling) consigns those who attend religiously affiliated schools to the use of textbooks . . . while children of other taxpayers are using graphing calculators to solve polynomial equations and reading about the latest Mesopotamian archeological discoveries on CD-ROMs,” attorneys wrote in their brief to the Supreme Court.
The Clinton administration agrees. In a separate brief filed with the Supreme Court in May, Solicitor General Seth Waxman argued that the appeals court ruling could jeopardize the administration’s plan to provide all children in public or private schools with equal access to technology.
The lower court’s ruling could affect the distribution of some $800 million in federal Title III funding for technology, Waxman argued. Under the direction of ESEA, school districts are required “to provide for the equitable participation of private schoolchildren in the benefits of such federal programs.”
The ruling also could affect the participation of parochial schools in the eRate, the federal program that gives telecommunications discounts to schools and libraries. Though the eRate isn’t authorized through ESEA, it is a federally funded program that applies to public and private schools equally.
The case “is likely to be the most important church-state lawsuit to come before the Supreme Court in over two decades,” said Barry Lynn, executive director of Americans United for Separation of Church and State.
High stakes for parochial schools
More than 70 percent of the students who benefit from federal funding authorized under ESEA attend public schools, but many of the rest attend parochial schools. In Jefferson Parish, where three taxpayers sued federal, state, and local officials over the issue in 1985, 41 of 46 private schools participating in the federal program are religiously affiliated.
The stakes are high for religiously affiliated schools. A spokesman for the Archdiocese of New Orleans told the Times-Picayune that its schools in the eight New Orleans area parishes received $17 million in federal education funding during the 1997-98 school year.
The 1985 lawsuit argued that the ESEA provision requiring public schools to share federal resources equally with parochial school children was unlawful under the Constitution’s First Amendment ban on an “establishment of religion.”
Parents of children in religiously affiliated schools intervened in the case to defend the program. A federal judge upheld the parochial aid in 1997, but the 5th U.S. Circuit Court of Appeals reversed that ruling last August.
The 5th U.S. Circuit Court relied heavily on two decades-old Supreme Court rulings it said banned provision of any materials other than textbooks to parochial schools.
In an appeal to the Supreme Court, which the justices agreed to hear this fall, lawyers for the parents of parochial school students argued that more recent high court rulings have blunted, if not obliterated, the effect of the court’s parochial-aid decisions in the 1970s.
In 1997, a Supreme Court far less demanding about church-state separation ruled that public school teachers can offer remedial help at parochial schools. And in 1993, the court said public school districts may provide sign-language interpreters for deaf students in parochial schools.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas have led the movement toward greater governmental accommodation of religion. Justices John Paul Stevens, David Souter, and President Clinton’s two appointees, Justices Ruth Bader Ginsburg and Stephen G. Breyer, have resisted the movement.
Justices Sandra Day O’Connor and Anthony Kennedy have cast crucial “swing votes” in recent church-state cases and could end up doing so again in this case.
Lawyers for the parents of parochial school students said the programs at issue in the earlier cases of the 1990s presented far greater danger of governmental indoctrination than access to modern resources such as computers and the internet.
“Computers don’t teach religion,” said Patricia Dean, a lawyer for the Jefferson Parish school district. “This program gives general aid, neutrally applied, to raise educational standards for everyone.”
But lawyers for the taxpayers who challenged the program called that argument a flawed theoryone that would find no fault with directly giving religious schools new libraries, desks, or copy machines.
If computers and CD-ROMs are essential teaching tools these days, they said, then approval of the federal program would allow “substantial aid to the religious mission of the sectarian school.”
The case is Mitchell v. Helms, 98-1648. A decision is not expected until next year.
Northwestern University’s Oyez Project (includes links to current Supreme Court cases)