Parochial Schools and the Court
Kaminer, Wendy, The American Prospect
Although it is frequently attacked as an elitist institution with no regard for the public will, the Supreme Court is hardly immune to cultural and political trends. Justices are, after all, appointed by presidents with particular ideological agendas, shaped partly by polls. Once they ascend to the bench, a few appointees may surprise and disappoint their political patrons, but many do not. So, at least indirectly, the political preferences of voters wield considerable influence on the Court. It was no coincidence that the Supreme Court toyed with invalidating capital punishment in the early 1970s, when public support for it was relatively low; it's not surprising that as support for the death penalty has increased (along with the conservative hold on government), the Court has committed itself to expediting executions. It's worth noting that Roe v. Wade, the 1973 decision invalidating abortion prohibitions, which anti-abortion activists consider the epitome of judicial arrogance, actually coincided with growing public support for abortion rights.
The current wave of religious revivalism is likely to exert similar influence on the Court. In fact, a slim majority of the justices have already demonstrated their sympathy for state-funded religious activities. In the 1995 case of Rosenberger v. University of Virginia (decided by a five-to-four vote), the Court held that a public university was required to fund an evangelical student newspaper, as it funded other, secular student activities. In 1997 it ruled in Agostini v. Felton (another five-to-four decision) that federal tax dollars may be used to pay teachers who conduct remedial classes in parochial schools as well as those in public schools. Agostini directly overruled a 1985 (five-to-four) case, Aguilar v. Felton.
Do the decisions in Rosenberger and Agostini effectively endorse government support of sectarian activities, in violation of the First Amendment, or do they prevent government discrimination against religion? That is the question dividing the Court. In Rosenberger, the majority held that a denial of university support for a sectarian student newspaper would constitute "viewpoint discrimination." The dissent pointed out that the newspaper was not a vehicle for discussing different viewpoints about religious issues; it was engaged in religious proselytizing, which a state university may not sponsor. In Agostini, the majority observed that the federal program at issue disbursed funds to public agencies providing services to all children in need, regardless of where they attended school. The dissent stressed that federal funds were being used to teach such basic subjects as math and reading in parochial schools, which effectively subsidized religious education.
A quick review of the most important decisions involving government support of private parochial schools demonstrates the Court's difficulty in deciding when state aid simply provides standard, secular services to students in religious schools (like bus transportation) and when it substantially enhances a school's ability to provide religious education or threatens to entangle government in parochial school administration.
Long ago, in the 1930 Louisiana case Cochran v. Louisiana State Board of Education, the Supreme Court held that states may loan textbooks to religious schools, and in a 1947 case, Everson v. Board of Education, the Court upheld a program reimbursing parents for the costs of busing their kids to parochial schools. In 1993, the Court held in Zobrest v. Catalina Foothills School District that federal funds could be used to provide sign language interpreters to deaf students in parochial schools.
The legal principle governing cases involving state support of secular activities in private religious schools (and religious activities in public schools) was formulated in the landmark 1971 case Lemon v. Kurtzman. Lemon involved challenges to two state laws: a Rhode Island law supplementing the salaries of teachers in parochial schools, who taught secular subjects, relying on material used in public schools, and a Pennsylvania law reimbursing parochial schools for teachers' salaries, textbooks, and "other instructional material," used for secular educational purposes. …