BRIA 13 4 c Should Government Aid Students Attending Parochial Schools?

Because the First Amendment forbids "an establishment of religion," courts have ruled that federal and state governments may not directly aid religion. But court interpretations have not always been consistent when it comes to indirect aid. Today, the law remains unclear about the constitutionality of some government aid to students attending religious schools.

Government Aid and Parochial Schools

In 1947, the U.S. Supreme Court ruled that the First Amendment's establishment of religion clause did not allow federal and state governments to "pass laws which aid one religion, aid all religions, or prefer one religion over another."  [Everson v. Board of Education.] But the Supreme Court has gone on to rule that some forms of government aid to religious schools do not violate the establishment clause. These include government-funded bus transportation and non-religious textbooks for students enrolled in parochial (religious) schools.

In 1971, the Supreme Court decided that it violated the establishment clause for a state to help pay salaries of Catholic school instructors who taught secular (non-religious) subjects like math and science.  In this case, Lemon v. Kurtzman, the court reasoned that, when the state paid the salaries, the Catholic Church could use the savings to pay for its purely religious purposes.  Thus, the state ended up aiding a religion.

In the Lemon case, the Supreme Court formulated guidelines for determining when an act of government violated the establishment clause. According to the so-called "Lemon test," any government act involving religion must meet all three of the following requirements to be constitutional under the First Amendment:

1. The government act must have a legitimate secular purpose.

2. The main effect of the government act must neither advance nor inhibit religion.

3. The result of the government act must not excessively entangle government with the affairs of religion.

Using the Lemon test in 1973, the Supreme Court decided that a state could not reimburse parents for their tuition payments to parochial schools. The court held that the reimbursements violated the establishment clause since they aided the primary purpose of parochial schools, which is to advance religion. Consequently, the reimbursements failed to satisfy the second part of the Lemon test. [Committee for Public Education and Religious Liberty v. Regan.]

Public Teachers in Parochial Schools

Title I of the 1965 Elementary and Secondary Education Act provided federal funds for remedial teaching of educationally deprived children from low-income families. This funding was made available to help students in both public and private schools, including those operated by religions. To satisfy the First Amendment's establishment clause, Congress required that all funds go to public school systems, which would then be responsible for remedial instruction in both public and parochial schools.
Starting in 1966, New York City set up remedial reading, math, and other services at parochial schools. About 20,000 disadvantaged students, most enrolled in Catholic schools, were served by the federal Title I program.

All Title I teachers and other educational professionals worked for public schools and volunteered for extra duty and pay at parochial schools. Teachers were told not to include any religious instruction in their teaching even though they would be working in parochial schools. They were to avoid all unnecessary contact with the regular parochial school staff. The public school system supplied all teaching materials. Even religious symbols were removed from Title I classrooms. Finally, Title I teachers were monitored by public school supervisors, who conducted at least one unannounced classroom visit per month. The purpose of this monitoring was to ensure that the federally funded remedial teaching did not aid religion.

Twelve years after the Title I program began in New York City parochial schools, a group of taxpayers filed a lawsuit in federal court claiming that the use of tax money for this purpose violated the First Amendment's establishment clause. The case, Aguilar v. Felton, reached the Supreme Court in 1985.  The court ruled, 5–4, that New York's Title I remedial program in parochial schools failed to pass the third part of the Lemon test and therefore was an establishment of religion.

Writing for the majority, Justice William Brennan stated that the need to monitor public school remedial teachers to make sure no religious instruction was taking place "inevitably results in the excessive entanglement of church and state. . . ."  He concluded that the required teacher monitoring resulted in a continuing governmental intrusion into the operation of religious schools. Writing in dissent, Justice Sandra Day O'Connor argued that there was no reason to even have such a monitoring system. In her opinion, professional public school teachers would hardly start teaching religion simply because they were working for an hour or so in parochial school classrooms.

To try to satisfy the Supreme Court's decision in the Aguilar case, the New York City Board of Education provided remedial instruction to parochial students in classrooms separated from their schools.  Most often, this involved marching students to a mobile instructional vehicle parked outside the school. Aside from the inconvenience of moving students (especially small children in bad weather), the price of leasing classrooms cost New York about $15 million per year ($100 million for all school districts in the nation). This money was deducted from the city's Title I funds, which were earmarked for remedial teaching.

Since 1985 when the Aguilar case was decided, several Supreme Court decisions put into question the basic assumptions that Justice Brennan used in writing his majority opinion. One case decided in 1993 concluded that a sign-language interpreter paid with public funds could assist a deaf student in his classes at a religious school. The court ruled that in this situation there was no need to monitor the interpreter.  [Zobrest v. Cataline Foothills School District.]

In 1995, 10 years after the Aguilar decision, the New York Board of Education, parents of parochial students, and others tried to reopen the case. These petitioners contended that the Aguilar decision made remedial education for parochial students too costly. They also argued that in light of recent Supreme Court decisions, the 1985 Aguilar ruling was "no longer good law." The taxpayer opponents, however, argued that placing Title I teachers back into parochial schools would likely result in them aiding the religious mission of those schools.

The Supreme Court followed an unusual procedure to reconsider the Aguilar decision and in June 1997 overturned it. Writing for the 5–4 majority, Justice Sandra Day O'Connor agreed with the New York School Board and parents that recent Supreme Court decisions made it clear that there was no need for the state to closely monitor Title I teachers working in parochial schools. Without this state intrusion going on, the issue of "excessive entanglement of church and state," on which the Aguilar case was based, almost disappeared.

In a dissenting opinion, Justice David Souter argued that the government-funded remedial instructors, whether teaching inside or outside parochial schools, enabled those schools to use more of their funds for religious purposes. This was, in his opinion, government aid to advance religion and a violation of the First Amendment's establishment clause. [Agostini v. Felton.] 

The closeness of the Aguilar and Agostini cases indicates that the issue of government aid to parochial school students remains far from settled.

For Discussion and Writing

  1. What two concerns did the framers of the First Amendment have in mind when they prohibited laws "respecting an establishment of religion"?

  2. What is the Lemon test? Do you think it should be used? Why or why not?

  3. Why did Justice Brennan conclude that New York City's Title I program in the parochial schools was an "excessive entanglement of church and state" in violation of the First Amendment? Do you agree? Explain.

  4. Do you agree or disagree with the dissenting opinion of Justice Souter in the Agostini decision? Why?

  5. Do you think it is a good idea for tax dollars to be spent at parochial schools? Why or why not?

For Further Reading

Freedom Forum First Amendment Center. [for Supreme Court decisions and articles analyzing First Amendment issues.]

Kasindorf, Martin. "Church Schools, Public Teachers." Newsday. April 13, 1997: A06.

ACTIVITY: The Lemon Test

Divide the class into five groups, each representing the U.S. Supreme Court. Each court will discuss a different question concerning aid to parochial school students and rule on its constitutionality.

1. The justices of each court should first review the Lemon test.

2. Each court should use the Lemon test to discuss and decide on an answer to one of the following constitutional questions:

a. May parochial school field trips to art museums,
    businesses, and government agencies be funded with
    public tax money?
b. May a blind student use a federal vocational education
    grant to attend a religious college to become a pastor?
c. May parents be granted a government voucher to help
    pay tuition for their children at the school of their
    choice including any religious school?
d. May parents of parochial school students be allowed
    to claim a tax deduction for the cost of Bibles and
    other religious educational materials?
e. May federal education funds be used to pay parochial
    school instructors to teach after-school remedial
3. After reaching a majority decision on their question, justices of each court should explain to the rest of the class their ruling in terms of the three requirements of the Lemon test.



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