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BY Kevin Hasson
It looks as though we're about to lose a good source of great jokes. The U.S. Supreme Court, after spending 30 years imagining hilarious distinctions among different types of public aid to parochial schools, seems about to come to its senses.
It recently announced that it would hear argument in the case of Helms vs. Picard, which involves the constitutionality of a federal aid program known as Chapter 2. Under the Chapter 2 program, states receive “block” grants from the federal government to support schools. The states then buy slide projectors, television sets, tape recorders, maps, globes and computers and lend them to all types of schools — public, private and parochial.
It sounds perfectly unobjectionable, and it is.But the usual groups of radical secularists sued, arguing that lending such things to parochial schools was unconstitutional. A federal appeals court reluctantly agreed. Never mind that 70% of the government money went to public schools and only 30% went to private schools.
Never mind that the state monitored the private schools to ensure that they weren't misusing the materials. And never mind that no one had ever shown that any teacher anywhere had ever attempted to use any of the materials to teach religion. Under the Supreme Court's previous decisions, the Court of Appeals explained, Chapter 2 was unconstitutional.
In agreeing to review the appellate court's decision the Supreme Court seems to be signaling that it is willing to rethink those precedents. That's very good news. Those precedents have deprived an entire generation of parochial school students and their tax-paying parents of badly needed help. They have also distorted the law of Church and state.
In a line of cases beginning in the 1960s, the Supreme Court wrestled with the question of whether government aid could be given to religious schools. The court couldn't quite bring itself to say “never,” so, in true Gilbert and Sullivan fashion, it responded “hardly ever.”
For example, the court managed to hold that the state could give parochial school students free bus-rides to and from school, but not to and from school field trips. It also held the state could lend parochial school students (although not their schools) textbooks, but it couldn't lend either one maps. That led Senator Daniel Patrick Moynihan, D-N.Y., to quip that a future case would have to be about atlases, which are books of maps.
These distinctions, of course, make no sense at all. Even the lower court judge in Helms described the Supreme Court's precedent as a “vast, perplexing desert,” and noted with considerable judicial understatement that “it is tempting to complain that the High Court has instructed us confusingly.”
But with the Helms case, that may be about to end. There is precedent for it.
A couple of years ago, in a case called Agostini vs. Felton, a 5–4 majority of the court overruled another one of its silly decisions. The court in Agostini held that remedial math and reading education could be taught to disadvantaged kids by public school personnel on religious school property. Before that there had been a slapstick rule, under which parochial school kids who needed extra help put on their coats and hats, traipsed out the door and were taught by public school teachers in vans parked just off parochial school property.
The reason? The Supreme Court decided there was too great a risk of public school teachers going into parochial schools, being overcome by the religious atmosphere, and beginning to slip religious teachings into their math and reading lessons. So, to avoid that risk, the government had to spend far more money to teach kids who had difficulty learning even in conventional classrooms, in RVs parked on the street.
That was the law for more than a decade until a bare majority of the court overruled it and held that as long as the same remedial instruction was equally available to all schoolchildren, both public and private, it could be given inside parochial schools.
The same five justices who brought common sense to bear in Agostini vs. Felton can do it again in Helms vs. Picard. They could well hold that as long as the government is providing a neutral benefit — materials that are not chosen with regard to religion or lack of religion — to all types of schools, the First Amendment is satisfied. That would be a big step forward for the law of church and state. It would also be a great help to lots of disadvantaged kids whose schools may not be able to afford computers of their own.
As important as this case is by itself, however, it is even more important as an indicator of how the court may rule on a future issue: the constitutionality of school choice vouchers.
Count on the administration, which is defending the Chapter 2 program, but which opposes vouchers, to argue that there is a difference between lending kids maps and giving their parents vouchers.
Let's hope the court is not in the mood for any more funny distinctions.
Kevin J. Hasson is president of the Becket Fund for Religious Liberty,