Religious Schools, Tax Dollars and the Supreme Court

By Boston, Rob | Church & State, April 1997 | Go to article overview

Religious Schools, Tax Dollars and the Supreme Court


Boston, Rob, Church & State


A New York Dispute Over Federally Funded Classes At Religious Schools Could Change The Way The Nation's High Court Rules On Church-State Separation

On July 1, 1985, the U.S. Supreme Court issued an important decision striking down federally funded remedial education classes at private religious schools, and then-Secretary of Education William Bennett was livid.

Blasting the Aguilar v. Felton ruling as "crazy," "terrible" and "badly reasoned," Bennett promised to find a way to undermine it. "We're not done," he vowed.

It took 12 years, but Bennett' s goal may finally be in sight. The Supreme Court announced last January that it will reexamine that 1985 decision, an action that raises the possibility of a wholesale revision of the high court's religious school aid policy and possibly a new course for church-state relations as well.

The new case, Agostini v. Felton, presents the justices with another opportunity to speak directly on the issue of taxpayer subsidies for religious schools. Not surprisingly, it is being closely watched by organizations that defend church-state separation as well as groups that would like to lower -- if not demolish -- the wall of separation between religion and government.

The high court's decision to take Agostini comes at a time when religious school voucher subsidies are increasingly the subject of national debate. Voucher proposals routinely appear in the U.S. Congress and state legislatures, and voucher schemes are now facing legal challenges in Wisconsin, Ohio and Vermont.

The new case, scheduled for argument before the justices April 15, is not a direct challenge to vouchers, but what the justices say will certainly affect the question of how far government may go in aiding religious schools. A sweeping decision could open the door to vouchers; a more narrow ruling or a decision that affirms church-state separation could take some steam out of the voucher drive.

"The high court's decision to reopen this issue now is cause for grave concern," says Americans United Legal Director Steven K. Green. "The justices have blocked most forms of taxpayer support for religious schools. We are concerned that some members of the court want to let down their guard."

Until recently, the court relied on a three-part standard to decide tax-aid-to-religion cases and many other church-state controversies. The "Lemon Test" -- named for the 1971 Lemon v. Kurtzman decision -- states that a law violates the Constitution if it does not have a secular legislative purpose, if its primary effect is to advance or inhibit religion or if it fosters "excessive entanglement" between church and state.

Church-state separationists like the Lemon Test because, properly applied, it results in a relatively high wall of separation between religion and government. But the Supreme Court's support for the Lemon standard has clearly waned in recent years, and anti-separationist justices have repeatedly criticized and even ridiculed it.

However, the court appears to lack a consensus on a replacement test, thus putting Lemon on judicial life support. The Agostini case hands the justices an opportunity to fashion a new standard.

How did a 12-year-old controversy that everyone thought was settled get resurrected? The answer stretches back more than three decades to 1965, when Congress passed the Elementary and Secondary Education Act (ESEA). A provision in that legislation -- then known as "Title One" and now called "Chapter One" -- finances remedial education classes for disadvantaged students, including those enrolled in religious and other private schools. (Parochial schools became beneficiaries at the behest of the Roman Catholic bishops, whose allies in Congress blocked the bill until the concession was made.)

Because of its provisions mandating government aid to students at private sectarian schools, Chapter One has been a persistent thorn in the side of church-state separationists, spawning decades of lawsuits in the federal courts.

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