- The Washington Times - Thursday, June 29, 2000

The Supreme Court yesterday upheld the constitutionality of a federal program that lends computers, software and library books to religious schools as well as public schools.

The 6-3 decision tantalized both backers and opponents of school-choice vouchers.

"We conclude that [the law] neither results in religious indoctrination by the government nor defines its recipients by reference to religion," the court said in its main opinion, written by Justice Clarence Thomas.

"The private choices of parents in determining where to send their children determines the amount of aid," Justice Thomas said in announcing the decision in a crowded courtroom.

All six justices in the majority rejecting a challenge from Louisiana voted for the judgment that the 1981 education law referred to as "Chapter 2" does not violate the constitutional ban against "an establishment of religion" by including religious private schools as recipients of equipment.

But two of the six Justices Sandra Day O'Connor and Stephen G. Breyer issued a separate opinion, explaining that they based their vote primarily on the court's 1997 decision in Agostini vs. Felton. That ruling allowed New York public school teachers to enter parochial schools to administer remedial education programs supported by federal funds.

Justice Thomas, backed by Chief Justice William H. Rehnquist with Justices Antonin Scalia and Anthony M. Kennedy, went further, ruling such spending is permitted for other reasons.

"Chapter 2 does not result in governmental indoctrination, because it determines eligibility for aid neutrally, allocates that aid based on the private choices of the parents of schoolchildren, and does not provide aid that has an impermissible content," the plurality opinion said.

Dissenting entirely were Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. Among their objections was the issue of "whether a school that receives aid (or whose students receive aid) is pervasively sectarian."

The main opinion in the case dismissed that doubt out of hand.

"The dissent is correct that there 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," Justice Thomas wrote.

Matthew Berry, staff attorney at the Institute for Justice, a leading proponent of school vouchers with which parents finance private education with public funds, called the verdict "a clear signal" that aid to parents is not unconstitutional merely because they apply it at religious schools.

"Moreover, it raises the prospect that excluding religious schools from voucher programs may itself be an unconstitutional form of discrimination against religion," Mr. Berry said.

"This is the sixth consecutive U.S. Supreme Court decision sustaining aid to students in religious schools or activities. School choice will make it a lucky seven," said the institute's litigation director, Clint Bolick.

The National School Boards Association, representing more than 95,000 school board members who govern the nation's public schools, objected that the ruling further "chips away" at the separation of church and state, a point emphasized in its friend-of-the-court brief in the case.

"Distributing computers and technology to private schools is the equivalent of providing curriculum in a box. These items can be easily diverted for a religious purpose, and the school district will never be able to monitor usage," said Anne L. Bryant, NSBA's executive director.

Justices O'Connor and Breyer disdained any cash transfers to the schools. However, in the opinion of a staunch opponent of school vouchers, Justice O'Connor may have left the door open to alternative methods that do not involve direct transfers, such as tax credits or parental reimbursement.

"But that's a pretty big barrier if she sticks to her own words," said Joseph Conn of Americans United for Separation of Church and State.

"The only silver lining is that this decision … deals exclusively with materials on loan, not direct cash subsidies for religious education," said Barry W. Lynn, executive director of the group.

He predicted new demands by religious schools for services paid by tax dollars.

In deciding a case that has been in the courts for 15 years, the Supreme Court overruled two of its own decisions from the 1970s Meek vs. Pittenger and Wolman vs. Walter which Justice Thomas said had led lower courts to incorrect rulings.

"[They] are anomalies in our case law. We therefore conclude that they are no longer good law," he said.

Almost three-fourths of the students that benefit from "Chapter 2" programs are in public schools. The case, called Mitchell vs. Helms, involved Jefferson Parish, La., a New Orleans suburb, where 41 of 46 private schools in the program are parochial schools.

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