High court broadens aid to parochial schools

Free loan allowed of government-paid computers, software

June 29, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - Lacking just one vote to free the government to provide a wide array of aid to parochial schools, the Supreme Court settled yesterday for approving the no-fee loan of taxpayer-financed computers and software to those religious institutions.

Expressing its views in a scattered group of long opinions, the justices voted 6-3 to uphold a 19-year-old federal program that is designed to promote "innovative" educational programs, at both private and public schools.

The six justices in the majority took differing approaches, but they did agree to uphold the program. They also agreed to strike down two rulings - one in 1975 and one in 1977 - barring the lending of instructional aids to parochial schools.

The new decision had been much awaited for signs of the court's attitude toward school vouchers - government subsidies for parochial school students' tuition. The court has passed up several test cases on the constitutionality of vouchers.

Education Secretary Richard W. Riley, while praising the ruling upholding the lending program, said the "decision is not about vouchers." He said the program at issue provided no money, as such, to any private school, and remains under government control.

He added: "I do not believe vouchers are the answer to providing a high quality education for all our nation's children."

But the Institute for Justice, a conservative legal advocacy group that strongly favors vouchers, said the court opinion was a "positive harbinger" for programs like vouchers, which support parents' choice of where to send their children to school.

The Institute's litigation director, Clint Bolick, said the ruling was the court's sixth in a row upholding aid to students in religious schools or activities. School choice programs, like vouchers, "will make it a lucky seven," he said.

The program upheld yesterday involves government purchase of computers, computer software, library books and other instructional aids, then lending them - at no charge - to students in public and private schools, including those affiliated with churches, synagogues or other religious bodies.

Four members of the court supported an opinion by Justice Clarence Thomas that would have relaxed almost all of the court's earlier limitations on aid to parochial schools. They would permit virtually any government program -materials, equipment or money - that involved neutral aid: that is, available to all types of schools and their students.

The key would be neutrality: once it was clear that materials or money were provided widely, the program would almost always be constitutional, Thomas said.

Widely available, nonreligious materials or money earmarked for nonreligious studies would not be considered a promotion of religion, under the Thomas approach.

Moreover, the parochial schools would be free to divert the money or materials to religious instruction, if they wished, and the funds could be paid directly to the schools and not channeled through parents or students.

But because that view had only four votes, not a majority, the constitutional reasoning that prevailed yesterday had to be found in a narrower, separate opinion, written by Justice Sandra Day O'Connor, supported by Justice Stephen G. Breyer.

That opinion took a middle ground between the Thomas view, with four votes behind it, and a dissent that had three votes behind it, so her views controlled.

She and Breyer, along with the Thomas group of four, made a majority of six to uphold the program, but not a majority behind the Thomas opinion.

It was apparent that Thomas had set out to make the decision a sweeping revision of constitutional doctrine on aid to parochial education, but lost a majority along the way, as his opinion circulated among his colleagues.

The case had been under consideration for six months.

O'Connor said the Thomas approach would support aid to parochial education at levels of "unprecedented breadth."

Taking a far less expansive position, she concluded that aid to parochial schools would be constitutional if it involved nonreligious materials kept under government control and barred from diversion into religious uses.

She also said that, if the aid were in the form of money, it could not go directly to the schools, but only to parents or students.

The aid would be unconstitutional, she added, if there were actual proof that parochial school teachers used it to aid in teaching religion. The court, she said, would not assume that the teachers would automatically divert it in that way.

Thomas' opinion had the support of Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Antonin Scalia.

In dissent were Justice David H. Souter, joined by Justices Ruth Bader Ginsburg and John Paul Stevens.

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