The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition

Civil Rights Monitor

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The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives

Volume 11 No 4

Public Funds Used to Purchase Instructional Equiptment for Private and Religious Schools

Mitchell v. Helms

On June 28, 2000, in the case of Mitchell v. Helms, the Supreme Court ruled 6-3 to allow a Louisiana school district to use public funds (Federal Chapter 2 education funds) to purchase computers and other "instructional equipment" for private and religious schools. Mitchell v. Helms was brought 14 years ago by Louisiana parents who challenged several state and federal programs benefiting parochial schools. They argued that the school district's use of federal funds to lend computers, instruction equipment, and library books to parochial and other private schools in the district was unconstitutional. The Fifth Circuit Court of Appeals ruled that this public aid to religious schools violated the First Amendment's prohibition against government establishment of religion ("Congress shall make no law respecting an establishment of religion") in its allocation of public funds for religious purposes. The Supreme Court reversed the lower court's ruling.


Mitchell v. Helms involved a challenge to the federal Chapter 2 program that provides education equipment and materials, such as library books and computer software and hardware, to public and private elementary and secondary schools. The challenge asserted that providing such materials to parochial schools violates the Establishment Clause, in that the materials could be used for religious purposes. The trial court upheld the program as applied, but was reversed by the Fifth Circuit Court of Appeals based on earlier Supreme Court holdings. The Supreme Court then granted review and reversed the Court of Appeals in a 6-3 decision. There was no majority opinion, however, with two of the justices concurring in the result only. Although one should read all three opinions to appreciate the significance of the case, Justice O'Conner's concurring opinion, which announces the narrowest rule, must be seen as controlling.


In the plurality opinion, written by Justice Thomas for himself, Chief Justice Rehnquist, and Justices Scalia and Kennedy, Thomas proposed "neutrality" as the constitutional standard for reviewing funding issues. So long as aid is "allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis," then it is constitutional even if it flows to a religious institution. Thus, provided the program is broad-based and the aid itself does not have an impermissible religious content, the ultimate use of the public aid becomes irrelevant the four asserted.

Justice O'Connor wrote a concurring opinion that was joined by Justice Breyer in which she approved the Chapter 2 program, but did so under much narrower reasoning than that employed by the plurality. Initially, the concurrence criticized the plurality's reliance on the neutrality of a program as presenting "a rule of unprecedented breadth for the evaluation of Establishment Clause challenges." The plurality opinion, Justice O'Connor wrote, "foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their objectives." As an alternative, Justice O'Connor held that if government aid is given to a religious institution directly, rather than as a result of "true private choice," it must comply with the following safeguards: it must be allocated on the basis of neutral, secular criteria; it must be supplemental to the aid that would otherwise be available to the institution; no funds must reach the coffers of the institution; the aid must be secular; the program must include adequate safeguards to ensure that the aid is not put to a religious use; and the aid must in actuality not be put to religious use.

Three dissenters, Justices Souter, Stevens and Ginsburg, agreed with the limitations endorsed by the concurrence, but added the requirements that the aid must, by its nature, not be divertible to religious use, must not supplant services that the religious institution would have otherwise undertaken, and must not amount to a "substantial" amount of assistance.


Perhaps the most important feature of the three opinions is that the two concurring justices, together with the dissenters, made up a majority of the Court. These justices agreed that neutrality is not the sole factor in analyzing whether government aid may be given to religious institutions. Rather, after the holding in Mitchell, a program in which aid is given directly to religious institutions, pervasively sectarian or otherwise, will gain the approval of a majority of the Court only if it complies with the principles enunciated in Justice O'Connor's concurring opinion. Furthermore, neither the concurring nor the dissenting justice joined in the plurality's view that the pervasively sectarian standard is no longer good law; rather these five justices agreed that monetary benefits pose even greater constitutional concerns than non-monetary benefits, and indicated that the pervasively sectarian standard remains applicable to monetary benefits that are given directly to religious institutions. Finally, only four justices indicated their support for vouchers. While Justices O'Connor and Breyer appear open to the concept, they would require several conditions that are not present in any current voucher program.

"The Court's ruling only further blurs the church/state line, adding to the confusion already experienced by school districts and taxpayers," said Ralph G. Neas, president of People For the American Way Foundation. "This ruling increases the risk that citizens will be forced to subsidize a school's religious mission, violating the First Amendment's prohibition against government establishment of religion."

To view the Court's opinion on the web visit: http://supct.law.cornell.edu/supct/html/98-1648.ZC.html

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