- The Washington Times - Thursday, June 8, 2000

Before the end of June, the Supreme Court will decide a widely anticipated First Amendment case, Mitchell vs. Helms, which will clarify the limits on public aid to parochial schools. This topic has triggered epic battles in courtrooms and legislative chambers for some 75 years, and, with such hot issues as the constitutionality of school vouchers still in the air, these fights show no sign of easing. The case also has implications for the $13.5 billion Elementary and Secondary Education Act (ESEA) that Congress is presently reauthorizing and which funds innumerable programs that benefit students in private, frequently religious, schools, as well as public school students.
The specific issue in Mitchell is whether federal Chapter 2 funds (which are now included within Title VI of the ESEA) can be used by parochial schools in Jefferson Parish, La., to purchase computers, software and library books. Schools generally use these funds to buy technology and instructional materials, including library resources and software, to support programs for at-risk and gifted students and for miscellaneous school improvements. By law, private school students are eligible to participate equitably in obtaining "secular, neutral, and non-ideological services, materials, and equipment."
Over the years, the Supreme Court's Establishment Clause jurisprudence, interpreting the first 16 words of the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"), has become famously tangled. Mostly, however, the court under Chief Justice Rehnquist has increasingly permitted public dollars to be spent on behalf of educational goods and services that do not have religious content or advance religion, and that benefit the children rather than the religious schools themselves. Thus, for example, a number of states provide textbooks to parochial school students.
What textbooks were yesterday, computers (and the requisite software) are becoming today. If past court decisions approved math and history textbooks for parochial school pupils, it would require convoluted reasoning not to allow Louisiana to use its federal dollars to supply their modern counterparts. The line sought by those who would bar such use of federal funds by parochial schools is outdated, even ridiculous. And it would undo a lot of aid that today benefits needy and deserving children whose families have placed them in private rather than public schools.
The issue of where to draw the line between permissible and impermissible public support to private (and, in particular, religious) education is even more important at the state level. The extent of public aid varies hugely from state to state, partly for reasons of policy and politics but largely because of the wording of individual state constitutions, which turns out to have greater influence on the dollar flow than does the federal First Amendment.
In Ohio, probably the most generous state in sharing its education dollars with nonpublic schools, All Saints Catholic School near Toledo counts on receiving about $800 per student in government aid towards its annual cost of $2,600 per pupil. Across the border in Michigan, however, Immaculate Heart of Mary School in Detroit can only expect to receive a couple hundred dollars per pupil in federal help, and not a single dollar from Lansing, due to the Michigan Constitution's stringent ban on all forms of aid to nonpublic schools. But, in New Jersey, where 15 percent of the state's 1.3 million students attend private (mostly Catholic) schools, the state spends approximately $93 million annually to aid those youngsters and another $47 million to transport them to their nonpublic schools.
Since its 1997 decision in Agostini vs. Felton, it's been clear that a majority of the Supreme Court no longer believes, to quote Justice Sandra Day O'Connor, that "all government aid that directly aids the educational function of religious schools is invalid." In that case, the court held that Title I funds previously consigned to parochial schools for off-campus uses could instead be used for on-campus instruction "to give economically disadvantaged children a better chance at success in life by means of a program that is perfectly consistent with the Establishment Clause." If the court continues to follow that reasoning, it will make short work of the arguments raised in Mitchell and rule that Jefferson Parish spent its federal funds constitutionally.
Important as Mitchell is, weightier issues lie ahead. Slowly working their way toward the Supreme Court's docket are major cases dealing with state-funded voucher programs in Ohio and Florida. Hence the stakes are high. If the justices choose not to allow federal funds to be spent on computers, software and library books in parochial schools, they will be hearkening back to an era in which the government did not treat religious schools neutrally, but with extra precautions, not unlike infectious disease wards. The losers would be not just children currently enrolled in parochial schools, but also millions of poor youngsters who stand to lose educational choice in our inner-cities.

Chester E. Finn Jr. is the president and Charles R. Hokanson Jr. is the finance director and a research fellow at the Thomas B. Fordham Foundation. Christopher Connell is the author of the Foundation's upcoming report on parochial schools.

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