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