Mitchell, Guy, et al. v. Helms, Mary L., et al. (06/28/2000)

By: Robin I. Mordfin & Erik Gabrielson, Medill News Service

Questions presented

Does a program under Title I of the 1965 Elementary and Secondary Education Act, which provides federal funds to state and local education agencies to purchase and lend neutral, secular, and nonreligious materials such as computers, software, and library books to public and nonpublic schools for use by students attending those schools, and which allocates funds on an equal per-student basis regardless of the religious or secular character of the schools students choose to attend, violate the establishment clause of the 1st Amendment?

Brief

One day, Mary Helms got angry about school buses.

Every day, public school students in Jefferson Parish, La., were being forced to get up early to catch public school buses so that the vehicles could be used to transport private school students to their classes.

Helms was tired of getting her daughter ready early just so that local Catholic school students could use public school buses. She felt that allowing religious schools to use public buses was a violation of the separation of church and state.

In 1984, she and some other public school parents in Jefferson Parish discovered that public funds were being used to supply private schools with more than just buses. Textbooks, overhead projectors, library books and computers were being bought for the parochial schools with public funds.

The items were provided through Title I of the Elementary and Secondary Education Act of 1965 and its Louisiana counterpart. Title I gives financial assistance through block grants to state and local educational agencies to provide ""secular, neutral, and non-ideological services, materials and equipment to students who are enrolled"" in public and private schools.

The parents also discovered that nearly $18 million in Louisiana funds were going to private and parochial schools. They decided to sue the local and state school boards as well as the Department of Education for what they perceived as a violation of the 1st Amendment's Establishment Clause.

Initially, the District Court summarily found that Title I and its Louisiana counterpart violated the separation of church and state by finding that the ""loan of state-owned instructional materials to pervasively sectarian institutions"" violated the Establishment Clause. The trial judge relied on two U.S. Supreme Court cases that found that although it is appropriate for public schools to lend textbooks to parochial schools, the lending of other materials is considered unconstitutional.

Those Supreme Court cases distinguished between textbooks and other materials because textbooks can be completely reviewed for bias and cannot be used to promote religious beliefs. On the other hand, materials like computers and projectors can be used in a number of different ways, and could ultimately be used to promote religious beliefs.

The Supreme Court had also found that by providing the basic elements necessary to run a school, including library books and software, the parochial schools get a financial advantage by not having to equip their schools themselves.

However, when the defendant's request for a review of the case was transferred to a new judge, upon the retirement of the first, he summarily reversed and found that Title I was constitutional. He based his decision on two other Supreme Court cases that he believed overrode the distinction between textbooks and other materials.

Altogether, the case pended for 13 years in District Court before it reached the 5th Circuit Court of Appeals where Title I was again found to be unconstitutional.

Writing for a unanimous 5th Circuit panel, Judge John Duhe', Jr. noted that the case requires courts ""to find our way in the vast, perplexing desert of Establishment Clause jurisprudence,"" and that during the 13 years it sat in the District Court, ""the sand dunes have shifted.""

After reviewing all of the relevant Supreme Court cases, the appeals court found that the distinction between textbooks and other items was still extant, and that providing other items to parochial school does violate the Establishment Clause.

The Supreme Court granted certiorari on June 14, 1999.

On June 28, 2000, a divided Court resolved the doctrinal dispute by overruling the two cases that had caused the confusion. By a 6-3 vote, the Court held that the federal government can lend educational materials, from computers to textbooks, to parochial schools without violating the 1st Amendment's Establishment Clause.

The majority itself split; with Justice Clarence Thomas writing the lead opinion for a plurality of four, composed of Justices Antonin Scalia, Anthony Kennedy and Chief Justice William Rehnquist. Justice Sandra Day O'Connor wrote a concurrence for herself and Justice Stephen Breyer.

""So long as the government aid is not itself 'unsuitable for use in public schools because of religious content'É and eligibility for aid is determined in a constitutionally permissible manner, and use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern,"" the government program is constitutionally permissible, Thomas wrote. ""Where the aid would be suitable for use in a public school, it is also suitable for use in any private school.""

The opinion failed to distinguish textbooks from other materials, as earlier Supreme Court cases had attempted to do, because ""it is hard to imagine any book that could not, in even moderately skilled hands, serve to illustrate a religious message.""

Though O'Connor and Breyer concurred in the result, O'Connor wrote that the ""expansive scope of the plurality's rule is troubling."" She particularly disagreed with two issues: the importance the plurality placed on the issue of neutrality in government school-aid programs, and the plurality's ""approval of actual diversion of government aid to religious indoctrination,"" which she said was in tension with the Court's precedents and unnecessary in deciding the case.

Justices David Souter, John Paul Stevens and Ruth Bader Ginsburg dissented.

""As a break with consistent doctrine the plurality's new criterion is unequaled in the history of Establishment Clause interpretationÉThe plurality's mistaken assumptions explain and underscore its sharp break with the Framers' understanding of establishment and this Court's consistent interpretive course,"" wrote Souter for the minority.

According to an ACLU press release, the decision ""further blurred the line of separation between church and state by permitting federal funds to be used to purchase computer (and other) equipment for parochial school students even though the equipment purchased with public money could just as easily be used for religious instruction as for secular teaching."" The ACLU filed an amicus brief along with the American Federation of Teachers, the Anti-Defamation League and many other organizations.

""The good news is that there is still an Establishment Clause and a wall between church and state, but several bricks got removed from that wall today,"" said Lee Fox Boothby, Helms' attorney.""But the decision does not really give us the ultimate answer in the Establishment Clause that we all were looking for.""