PAROCHIAL QUESTION.

Louisiana Catholic School Case Tests Supreme Court rules On Taxpayer Aid To Religion

Suburban New Orleans housewife Mary "Neva" Helms' journey to the U.S. Supreme Court began more than 15 years ago over a simple, but irritating, issue: She had grown frustrated because her daughter Amy, then a seventh grader, had to get up at the crack of dawn every day to stand in the dark and wait for a school bus.

When Helms approached local public school officials to find a solution to the problem, they at first seemed agreeable and even said Amy could attend another public school in the system. But as it turned out, there was a catch: Amy would have to find her own transportation

Getting her daughter to a different school was no easy task for Helms, but local education officials wouldn't budge. Helms was angered by the school's response but became even angrier when she learned that had Amy been attending a private school, she would have received free transportation on buses owned and operated by the public school system to any private school in Jefferson Parish (the Louisiana term for county).

"We were trying to get safe and later starting times, and we discovered that we couldn't because the parish was busing parochial school students also," Helms recalls. "We were supplementing that out of local funds. At the time this all started, we had nine buses going to nine different parochial schools offering door-to-door service."

Helms didn't simply sit and stew--she turned her anger into activism. She started digging and learned that the public school bus schedules had clearly been designed to accommodate private school students. Public school children had to get up early every day to ride buses while students attending private school enjoyed better hours and more direct routes.

But Helms found that she had merely hit the tip of the iceberg. More digging revealed that Louisiana's private religious schools, most of which are Roman Catholic, were awash with state and federal dollars. The taxpayers of Louisiana were being forced to support two school systems--one public and open to all and the other a private one that served a private religious interest.

Helms contacted Americans United, which looked into the situation and agreed to launch a legal challenge on her behalf. Two other New Orleans-area mothers, Marie L. Schneider and Esperanza Tizol, joined as plaintiffs. (Tizol later left the suit when she moved to Florida.) Originally filed on Dec. 2, 1985, the lawsuit challenged not only the busing arrangement but other state and federal programs designed to give private religious schools access to publicly funded special education teachers, textbooks and various types of equipment.

It took nearly 15 years, but the controversy has finally reached the Supreme Court--although in a much different form. Mitchell v. Helms was argued before the high court Dec. 1, and a decision is expected by early July.

Observers say this case has the potential to be a blockbuster. In recent years, the high court has approved various types of "indirect" government aid to religious schools. But the justices have stopped short of allowing direct aid that can be used for religious indoctrination. Court watchers on both sides of the issue agree that Helms gives the justices an opportunity to signal their opinion on vouchers and other direct forms of government aid to parochial schools.

At issue in Helms is a federal program known as "Chapter 2" of the Elementary Secondary and Education Act (ESEA). Enacted by Congress in 1981, Chapter 2 consolidated a number of federal-aid-to-education programs, some stretching back to the 1930s, and required that non-public school students share in the largess.

Chapter 2 (called Title VI in its most recent legislative incarnation) is designed to provide equipment and materials to schools--mainly computers, software, audio-visual equipment and library books. Technically, the material provided to religious schools is considered a "loan." However, critics say the equipment and books rarely find their way back to public institutions and charge that much of it can easily be diverted to religious use. During the original court record in Jefferson Parish, La., for example, Americans United uncovered examples of taxpayer money being used to purchase religious books for parochial school libraries.

This long-running case has a convoluted history. Although filed in 1985, the lawsuit languished for five years before U.S. District Judge Frederick J.R. Heebe issued an order striking down the federal government's program of giving equipment and textbooks to private schools. Ruling on a motion for summary judgment March 27, 1990, Hebee said the Chapter 2 program violated the separation of church and state.

Four years later, in June of 1994, Heebe issued a full opinion in the case, again striking down the Chapter 2 aid as well as a federal program that sent publicly financed teachers into private schools to offer remedial education classes. But the ruling was not a complete win for separationists, as Heebe upheld five state programs that give taxpayer aid to private religious schools, including the busing scheme.

Shortly after issuing the opinion, Heebe retired. The case then took a sharp turn when it was reassigned to a new judge, Marcel Livaudais. In January of 1997 Livaudais nullified Heebe's ruling and issued a new decision upholding all of the federal and state programs giving aid to religious schools.

Helms and Schneider, assisted by the Council on Religious Freedom, decided to take the case to the U.S. 5th Circuit Court of Appeals. On Aug. 17, 1998, a three-judge appellate panel upheld the state aid programs but declared Chapter 2 subsidies unconstitutional. Louisiana officials, joined by a group of Catholic parents who entered the case as interveners, promptly filed an appeal before the U.S. Supreme Court, which agreed to hear the controversy.

At the same time the Helms case was working its way through the federal courts, an Americans United-sponsored lawsuit that raised similar issues was under consideration in California. In that dispute the U.S. 9th Circuit Court of Appeals upheld the federal aid programs, creating a split in the courts. The conflicting decisions created a strong incentive for the Supreme Court to step in and settle the matter.

When it decides Helms, the high court will deal solely with the issue of Chapter 2 aid. Two years ago, in a narrow 5-4 ruling, the justices upheld the practice of allowing government-paid teachers to offer remedial instruction in religious schools, settling that issue. And the court, which first upheld taxpayer-funded parochial school busing in 1947, has shown no interest in revisiting that question.

But the question of Chapter 2 aid remains a compelling church-state issue on its own. Millions of dollars flow to private sectarian schools every year under the program, which plaintiffs argue advances religion at taxpayer expense.

During oral arguments Dec. 1, some of the justices were clearly grappling with the question of just how far the government can go in aiding parochial schools. Chapter 2 support is supposed to "supplement" parochial school programs, not "supplant" them, and several of the justices asked pointed questions of the attorneys who argued the case, indicating they are having difficulty determining when that line is crossed.

Justice John Paul Stevens sharply questioned Michael McConnell, a University of Utah law professor who is arguing the case on behalf of Catholic school parents who want the aid. Stevens demanded to know just how far McConnell believes the state can go in aiding sectarian schools.

When McConnell opined that the state can give various forms of "neutral" aid to religious schools, that is, material not specifically designed to inculcate religion, Justice David Souter took exception. Souter asserted that under that standard, government money could be used to build parochial schools since "bricks are not religious."

Chief Justice William H. Rehnquist, normally no proponent of church-state separation, joined in, asking McConnell if under his theory government could build parochial schools. McConnell said no, saying the entanglement between church and state would be too great.

Attorney Lee Boothby, representing Helms and Schneider, faced equally tough questioning. Justice Antonin Scalia, asserting that the high court's previous decisions in this area "make no sense," asked Boothby to explain how he would draw the line over what type of government aid can constitutionally be awarded to religious schools.

Boothby replied that government cannot get into the business of funding the "core functions" of sectarian schools. He also pointed out that such aid could eventually hurt religious schools, if they had to water down their religious character as a condition of receiving the money.

Helms, who attended the argument, was frustrated by its tenor. The justices, she told Church & State during an interview the day after the high court session, seemed to get bogged down in details, losing sight of the larger issue of requiring taxpayers to support sectarian schools.

"The Baptist community I grew up with supported the separation of church and state," she said. "There are still Baptist churches that believe that, although the Southern Baptist Convention has shifted away from it. In the process I think they have harmed their faith. They should ask people of faith to support their churches and not go to the pockets of the public and ask them to support something they may not believe. We forget that this country was founded for religious freedom."

Helms' co-plaintiff, Marie Schneider, agreed that the high court is missing the larger issue. As far as Schneider, a devout Roman Catholic, is concerned, government aid to parochial schools harms both church and state.

"The church is saying it wants academic freedom and intellectual freedom for its schools, but they also want government money," Schneider said. "I'm willing to support my church, and I do. If my faith is important enough, I will finance it. I don't want the government in because with the government comes regulations and secularism. It is already happening."

Schneider's seven children all attended parochial schools for at least part of their education, although only one went all the way through the Catholic system. She said she first became interested in this issue years ago when she was working as a volunteer in a Catholic school and noticed that the crucifix had been removed from a room where special education classes were offered. Church officials had taken it down to avoid jeopardizing the federal funding that supported the program.

"I'm saying to them, `Hey, fellas, pay that teacher yourself and leave that crucifix up because when you take it down you injure my faith,'" she said.

Not surprisingly, the Helms case has attracted a lot of attention. The high court received a flood of friend-of-the-court briefs on both sides. Conservative Catholic groups like the Catholic League for Religious and Civil Rights, the Knights of Columbus and the Becket Fund for Religious Liberty were joined by Religious Right legal groups, most notably TV preacher Pat Robertson's American Center for Law and Justice and the Rutherford Institute, in urging the court to uphold the aid. (Two more moderate Christian legal groups, the Christian Legal Society and the National Association of Evangelicals, filed a joint brief also asking the justices to approve the aid.) In addition, briefs were filed by two Jewish groups that advocate religious school aid, the Avi Chai Foundation and the National Jewish Commission on Law and Public Affairs. A number of state private school groups filed a joint brief, and the U.S. Catholic Conference--the lobbying arm of the nation's Catholic bishops--contributed one as well.

In addition, thirteen states joined forces to file a brief favoring the aid. They are: Ohio, Colorado, Florida, Iowa, Illinois, Kansas, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, South Carolina and Virginia.

On the other side of the debate, a number of separationist organizations and public education groups teamed up to file a brief urging the court to declare Chapter 2 aid unconstitutional. These include Americans United, the American Civil Liberties Union, the American Federation of Teachers, the American Jewish Committee, the American Jewish Congress, the Anti-Defamation League, Hadassah, the Jewish Council for Public Affairs and People For the American Way.

Separate pro-Helms briefs were filed by the Baptist Joint Committee on Public Affairs, the City of New York and the Board of Education of New York, the Interfaith Religious Liberty Foundation, the National Committee for Public Education and Religious Liberty, the National Education Association and the National School Boards Association.

In addition, a slew of pro-voucher groups banded together to file a brief, that, while technically is in support of neither party, urges the high court to use Helms as a vehicle to rewrite church-state law and declare vouchers constitutional. These organizations include the Institute for Justice, the American Education Reform Foundation, the Center for Education Reform, CEO America, Floridians for School Choice, the Greater Educational Opportunities Foundation, the Milton and Rose D. Friedman Foundation and Parents for School Choice.

The Clinton administration has also made its position clear. During the oral argument, McConnell allotted 10 minutes of his time to Barbara D. Underwood, deputy solicitor general in the Department of Justice, who argued in favor of keeping federal aid flowing to parochial schools. Underwood urged a standard that would allow the government to provide "neutral" aid to religious schools with the understanding that giving too much aid would violate church-state separation.

Underwood said one good test would be to ask if the religious school could still operate if the tax aid were taken away. If the answer is no, then the government is impermissibly funding the "core functions" of the school, she argued.

(The Clinton administration has a special interest in the case, since it has proposed spending $800 million to make sure every public and private school in the country is connected to the Internet. The federal government's ability to give that aid to religious schools could be placed in jeopardy if Helms is upheld.)

Critics of religious school aid assert that fundamental American values are at stake in this case. They note that Louisiana's experiment in doling out massive aid to private sectarian schools has come largely at the expense of public education. Average teacher salaries in the state, at $26,566, lag far behind the national average. (Average teacher pay is lower in only three states--Mississippi, North Dakota and South Dakota.) The high school drop-out rate is among the nation's highest, and state data indicates that 46 percent of Louisiana's public school graduates must take remedial courses in college. When public school quality is listed by state, Louisiana routinely ranks near the bottom.

Ironically, while Louisiana private schools are awash with taxpayer-supplied computers, public schools go begging for new technology. In June of 1996, Business Week magazine reported that Louisiana ranked dead last among states and territories in providing computers to public schools.

These statistics have given the state a bad reputation. In July of 1999, the Children's Rights Council, a non-profit group based in Washington that promotes strong families, released its fifth annual report ranking all 50 states and the District of Columbia on which were best to raise children in. The report, which included several factors relating to public education, ranked Louisiana number 50. The state was saved from the bottom spot only by the inclusion of the District of Columbia. Since the CRC began issuing the report in 1995, Louisiana has never held a place higher than 45, and is usually at 49 or 50.

How did Louisiana get into such a mess? Part of the answer may be that the state has a long tradition of subsidizing religious education with tax funds. (This is doubtless made easier by the fact that 17 percent of the state's school-aged children attend private schools, most of them Roman Catholic, which is much higher than the national average of 10 percent.) The state's long practice of funneling state aid to religious schools, stretches back to populist Gov. Huey Long, who pushed the textbook "loan" program through the legislature in the late 1920s in a bid for Catholic votes.

But much of the current situation can be traced to an aggressive and well funded lobbying campaign by the Catholic hierarchy. In 1968, New Orleans Archbishop Philip M. Hannan launched an effort to win busing subsidies for parochial schools. Hannan asked Emile Comar, editor of the archdiocese's newspaper, to head up the effort. Comar in turn recruited Kirby Ducote, a veteran journalist familiar with the state legislature, and together they formed Citizens for Educational Freedom, a lobbying group composed of Catholic school parents, principals, teachers and clergy.

In 1973 the group scored a coup when its activists infiltrated a state constitutional convention that had been called to revise Louisiana's antiquated constitution. CEF activists managed to remove the Louisiana Constitution's explicit bar on tax aid to religious schools. State aid soon began flowing to parochial schools, reaching $30 million a year in 1986.

Meanwhile, public education in Louisiana is suffering from neglect. Helms, a resident of Kenner in Jefferson Parish, notes that in nearby Orleans Parish, "There are public schools with no air conditioning, holes in the floors, unpatched ceilings and broken equipment. It's a miracle that the teachers tough it out. Some of them don't even have fans."

Much has changed in the 15 years since Helms and Schneider brought the case. Helms' daughter is now 27. Schneider's children are long out of school, and she's a great-grandmother. The two know that the Supreme Court has been wavering on the question of taxpayer subsidies for religious schools. Both said that no matter what the high court decides, however, they believe much good has already come out of their decade-and-a-half of struggle.

Schneider points out that the problem that started it all--early busing of public schools--students has been improved. Parochial school students are now limited to attendance districts and are no longer bused to any private facility in a parish. In addition, government-funded programs in religious schools are regularly audited.

"I think an overriding benefit of the case has been awareness," Schneider said. "Now people ask questions. Now people are not afraid to ask, `What are you doing with this money?'"

Helms concurs. "The win may not be in the courts" she said. "The win is in the accountability of education in the state of Louisiana. We did improve that part of it. We have put things in place that protect children and not schools, and for us that's a very big step."

While the Helms case has the potential to rewrite church-state law and lay down new guidelines for government funding of parochial schools, it's also possible that the high court--which is obviously deeply divided on this issue--will produce a fractured and narrow ruling. Even if the decision upholds Chapter 2 aid, it may tell little about how the court would rule on vouchers.

At a press conference outside the Supreme Court following the Dec. 1 argument, McConnell told reporters he does not necessarily believe the Helms case will pave the way for vouchers. McConnell, a leading critic of church-state separation, was quick to add, however, that he believes vouchers would survive court scrutiny now.

Separationists are not so sure. A four-justice bloc on the court--Sourer, Stevens, Ruth Bader Ginsburg and Stephen G. Breyer--seem skeptical of direct funding of religious schools. Three justices--Rehnquist, Scalia and Clarence Thomas--look to be safe pro-voucher votes. Justices Sandra Day O'Connor and Anthony M. Kennedy remain the swing votes on this and other church-state issues.

Americans United Executive Director Barry W. Lynn said it is unfortunate that the Supreme Court ever allowed tax funding of sectarian schools in the first place. Lynn said the decisions approving various types of "indirect" aid to parochial schools quickly led to a slippery slope. As a result, the court is now grappling with how far states can go in awarding taxpayer money to religious schools.

"The Supreme Court is asking the wrong question," Lynn said. "Instead of wondering how much aid government can give to sectarian schools without violating the First Amendment, the justices ought to be asking if government can give such aid at all. And their answer should be no."

Continued Lynn, "Like the churches that sponsor them, parochial schools serve a private religious interest and must be funded by voluntary contributions from faithful members, not money taken by force from taxpayers who may not agree with the religious views taught in those classrooms."