Twenty-six states provide private schools with “auxiliary services” that are “arguably unconstitutional,” a survey released last month by an organization that opposes government aid to church-affiliated schools contended.
“The extent of these programs far exceeds the projections made by the National Council of Churches and other such groups. ... The results are alarming,” stated the survey. Entitled Auxiliary Services to Religious Elementary and Secondary Schools: The State of State Aid, it was conducted for Americans United for the Separation of Church and State, located here.
A spokesman for the church-state organization said the group is preparing to file lawsuits, based on the results of the survey, contesting aid programs in “two or three” states.
The organization has been active in a lawsuit, currently pending in the U.S. Supreme Court, contesting tax deductions for private-school tuition in Minnesota. Americans United also won a lawsuit last summer that struck down a Grand Rapids, Mich., program that permitted public-school teachers to teach secular subjects in private schools.
Lee Boothby, the group’s lawyer, would not disclose which of the state programs identified by the survey would be the subject of the new lawsuits. He said the results of the survey, which was conducted for the organization by a research assistant at the University of Virginia, show that states are providing several types of “possibly unconstitutional” aid.
Types of Aid Included
According to the survey, the aid included: loans of instructional material (13 states); gifts of textbooks (7 states); the provision of health services in private schools by public-school personnel (6 states); and released-time programs for religious instruction that permit religion teachers to use public-school classrooms (7 states).
Two types of programs identified in the survey, involving loans of certain instructional materials and released time for religious instruction, have been held unconstitutional by the U.S. Supreme Court, in Wolman v. Walter and Lemon v. Kurtzman, respectively. But the survey by Albert R. Papa acknowledged that “programs such as textbook grants and the on-ground administration of therapeutic health services have not been expressly ruled unconstitutional.”
The survey also identified other programs that may be unconstitutional, according to the author, who was a doctoral candidate in political science when he conducted the survey last summer.
They are: “building loans for the construction, maintenance, and repair of church-school buildings” in Connecticut; tax deductions for contributions to private schools in Idaho; subsidies for “non-mandated testing and record keeping” in Minnesota and Mississippi; subsidies for field trips by private-school students and “direct institutional grants” to schools in North Dakota; and “unspecified ‘purchase of services’ arrangements” in Arizona and Tennessee.
Constitutional Programs
Constitutionally permissible forms of private-school aid are also common, the survey found. Education officials in all but three of 48 states that responded to the survey said their states provide private-school-aid programs that have been found constitutional by the Supreme Court and other federal courts, the survey said.
Such programs include loans of textbooks (25 states), subsidies for meals (17 states), special-education programs (15 states), driver-education programs (4 states), health services (23 states), administrative services (7 states), and bus transportation (26 states), according to the survey.
Officials in Florida, Georgia, and Oklahoma reported no aid programs. Hawaii and Wisconsin did not respond to the survey.
“The accommodation of auxiliary services to religious elementary and secondary schools has taken a firm foothold in the United States, and it is a growing phenomenon,” Mr. Papa wrote. He argued that the provision of state services grew after the Court’s Wolman decision in 1977.
That and other decisions set out a three-part test for government aid to private schools: “In order to pass muster, a statute must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive government entanglement with religion.”
Using that formula, the Court permitted state-funded guidance and counseling programs, remedial programs, and programs for the handicapped--as long as such classes were not provided in private-school buildings.
But the Court held in the same case that although states could lend textbooks to private-school students, they could not lend other types of instructional materials or equipment--such as maps, charts, and laboratory equipment--to private schools. And although states were allowed to provide bus transportation to and from school for private-school students, the Wolman decision outlawed state-funded bus transportation for field trips by such students.
‘Valid Distinctions’
“One searches in vain to find constitutionally valid distinctions here. The Court’s formula satisfies no one and leaves much confusion in its wake,” Mr. Papa concluded.
The survey also found that states with large Roman Catholic populations tended to provide a large number of private-school-aid programs--which it labeled “programs of accommodation.”
“The average number of programs of accommodation per state is 4.7. However, in the 17 states surveyed with a Roman Catholic population of more than 20 percent, the average is 7.4 programs per state.” By contrast, the survey added, “of the 12 states with less than 10 percent of the population professing the Catholic faith, the average was 2.5 programs.”
Richard E. Duffy, the education-program officer of the United States Catholic Conference, characterized the correlation as “legitimate.”
“Where you have a broad political base and a high concentration of Catholic-school parents, you will find those states providing substantial state aid,” he said.
But Mr. Duffy, whose office collects information about state and federal programs that aid parochial schools, disputed some of the findings of the survey, which he labeled “confusing and misleading.”
Of the 13 states identified by Mr. Papa as lending instructional materials to private schools, Mr. Duffy said his information showed that the survey incorrectly identified eight.
“Colorado, Kansas, Nevada, New Hampshire, New Mexico, North Dakota, Oregon, and Utah--none of them have state loan programs,” Mr. Duffy contended.
“I think [the author] is confusing state and federal aid,” Mr. Duffy said, referring to a federal program--Title IV-B, which was replaced in the current school year by block grants--that provided funds to states for instructional materials for public and private schools.
Mr. Duffy also maintained that no school systems permit religion teachers to teach in public-school classrooms during released-time periods for religious instruction, a practice that the survey said is permissible in seven states.
Robert L. Smith, executive director of the Council for American Private Education, a Washington-based organization that represents numerous private-school associations, characterized the survey as “pretty self-serving.”
“When you read carefully between the lines,” he said, “maybe the charges [made in the survey] are not well founded in law.
‘Test of Our Court System’
“We’ve got to remember that we have a court system in this country, and if indeed illegal things are being done [by the states], they won’t withstand the test of our court system. What is going on has been considered to be legal,” Mr. Smith said.
In a telephone interview from his home in Pittsburgh, Mr. Papa responded that “the answer in each case is that that’s what was reported to me by the state education departments. I have no way of knowing who filled out the questionnaires within each state board of education. It’s possible that a particular state had confused state with federal aid. If there is confusion, it is perhaps on their part.”
“Some of the laws [identified in the survey] could be those that are not funded or are antiquated, but we assume [the states] would not report them unless they are actively being carried out,” added Joseph L. Conn, the managing editor of Church & State, the monthly magazine published by Americans United. The magazine’s October issue carried an article describing the survey.
