Church-School Challenge

In its efforts to fuel U.S. education with cash, the Great Society has taken a relaxed view of the First Amendment ban on official establishment of religion. Convinced that all Americans will benefit, Congress has included parochial-school students in a $1.3 billion federal program aiding U.S. public schools, and folded church-related campuses into a $1.6 billion plan for aiding higher education. The purpose is surely secular, but is it constitutional?

Last week the Supreme Court ducked the question by refusing to review a key decision from the Maryland Court of Appeals that voided state aid to three church-related colleges and approved it for a fourth. Foes of federal aid to church schools were jubilant. They had sought the Maryland test because there seems to be no way to attack federal programs directly. According to a 1923 Supreme Court decision, federal taxpayers cannot sue, charging misuse of federal taxes, unless they can prove substantial personal injury, which is virtually impossible. Although Congress could probably provide for judicial review by taxpayers' suit, such provisions have been deliberately omitted from federal education legislation.

Sectarian Ambiance. By contrast, Maryland permits state-taxpayer suits --and starting in 1962, the Maryland general assembly created a state college-aid program that parallels the federal setup. Four bills provided $2,500,000 for new facilities at four church-related colleges--Hood (United Church of Christ), Western Maryland (Methodist), Notre Dame and St. Joseph's (Roman Catholic). All of the bills were challenged by 13 Maryland taxpayers and the Horace Mann League, an association of 500 public-school educators. The state court's decision, they hoped, would, by inference, hold the federal programs unconstitutional.

In striking down three of the grants last June, Maryland's top court invoked the Supreme Court's own test when it banned compulsory Bible reading in public schools in 1963: "To withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." It did not matter that the grants were specifically limited to nonreligious purposes--construction of dormitories and science buildings. Instead, the court asked whether each church college was so permeated by religion that a secular grant would automatically aid its sectarian ambiance.

Confused & Vulnerable. How to measure such religiosity? The court devised six criteria, ranging from the degree of church control and the number of compulsory religious courses to the "image of the college in the community." However inviting to subjective judgment, the test clearly barred grants to the two Catholic colleges, one of which planned to put crucifixes in each new, tax-paid science classroom. Western Maryland's Methodism was more elusive, but clear church control barred that grant too. Only Hood (U.C.C.) passed the test, because, among other open-minded policies, it welcomes teachers and students of all faiths--Jews, Catholics, Lutherans, Quakers and agnostics, to name a few.

The Maryland court went out of its way to pose a Supreme Court test, specifically basing its decision on the federal rather than the state constitution. But the Supreme Court did not rise to the challenge, and many educators fear that the Maryland decision will chill or freeze federal programs across the country. As they see it, state taxpayers may try to enjoin state-paid officials from disbursing federal funds to church schools.

In fact, though the federal legislation was carefully drawn to omit state spending, the mere participation of state officials may invite challenge. Many states also have their own vulnerable programs: New York, for example, is being attacked for lending public-school teachers and textbooks to parochial schools. Although the Maryland decision applies only to that state, it is sure to generate confusion and litigation elsewhere until the Supreme Court acts.

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