c. 1999 Religion News Service

WASHINGTON _ Waiting in early morning darkness 14 years ago for the bus to Roosevelt Middle School in Kenner, La., Amy Helms stood at the beginning of a legal odyssey that will extend Wednesday (Dec. 1) to the Supreme Court.

The 13-year-old girl’s mother, Neva Helms, worried about children being harassed at street corners before dawn, so she asked Jefferson Parish public school officials why the bus came so early. The answer _ the driver also had to fit in rides for students going to Catholic schools _ sent Helms researching just how much support religious schools get from taxpayers.

She found a lot. Special education teachers on the public payroll in Catholic schools, public subsidies for Catholic school lunch workers, public money reimbursing private schools for state-required record keeping, and state and federal programs channeling instructional equipment to private schools.

Joined by another public school parent, Helms filed a lawsuit against the federal government and other defendants in U.S. District Court in New Orleans. She argued public aid to schools of any religious leaning violates the Constitution by breaching the separation of church and state. On Wednesday, the high court will hear one major aspect of their case.

An attorney for Helms and her co-plaintiff, Marie Schneider of Terrytown, La., will attack a federal program providing computers and other instructional tools to religious schools as well as public ones. The court will also hear from a group of Jefferson Parish Catholic school parents who intervened in the case to assert that as taxpayers themselves, they want their children to benefit from the program.

The Helms case reaches to the core of the First Amendment’s establishment clause, which states,”Congress shall make no law respecting an establishment of religion.”The clause has been interpreted in so many ways over the past 208 years that one judge writing on the Helms case called the accumulated jurisprudence a “vast, perplexing desert.”

The Supreme Court’s ruling, expected next summer, could be narrowly focused on the issue of using federal money to buy equipment for religious schools. But several students of the establishment clause say the court could provide an important signal of its developing philosophy on a range of taxpayer subsidies for religious schools, including vouchers that would allow parents to use public money to enroll their children in faith-based institutions.

The case that attorneys for Helms and Schneider will present is financed by the Council on Religious Freedom, another national separation-of-church-and-state group.

On the other side is the federal government, joined by seven Catholic school parents, who were recruited to intervene in the case. They declined requests to be interviewed.

Their effort is financed mostly by the U.S. Catholic Conference, the social policy arm of the nation’s Roman Catholic bishops.

Helms and Schneider’s original lawsuit questioned six types of public aid to religious schools: the federal program providing instructional equipment, a similar state program, busing, special education teachers, salary supplements for lunch workers and reimbursements for religious schools to carry out state-required tasks such as taking attendance.

Two of the issues were resolved before the case came to trial in 1990. The state agreed to audit the bills religious schools submit to be reimbursed for performing required services, and the Archdiocese of New Orleans agreed to establish an independent corporation to distribute public money to cafeteria workers, so its schools would not directly handle the money.

After the trial on the remaining issues, four years elapsed before U.S. District Judge Frederick Heebe began issuing rulings piecemeal. The case was reassigned to Judge Marcel Livaudais Jr., who reversed some of Heebe’s rulings and upheld others, clearing the way for the case to move to the U.S. Fifth Circuit Court of Appeals.

Fifth Circuit Judge John Duhe, in a 1998 ruling, gave Helms and Schneider a victory on the question of using public money _ state and federal _ to provide instructional equipment to religious schools. The Supreme Court had approved the loaning of textbooks in other cases, but the appeals court concluded it is unconstitutional to provide other instructional materials, including computer software, because those items could be diverted from academics to help advance the religious mission of the school.

About half the states allocate money for private schools, including those with religious affiliations, according to the Education Commission of the States, a policy research group in Denver. Much of the money goes toward meals, textbooks and transportation.

The federal government and the Catholic parents who intervened on the side of religious schools appealed the ruling regarding the federal program. Last summer, the Supreme Court agreed to take on the case.

Before the court is a program, now called Title VI, created by Congress in the Elementary and Secondary Education Act of 1965. It provides more than $12 million worth of equipment to all types of private schools around the country.

The Catholic parents argue the program includes suitable safeguards to guarantee the equipment sent to faith-oriented schools will not be used in religious instruction. These include reports on how schools use the supplies and inspections from public school administrators.

“It serves millions of children, including more than a million attending private religious schools, in keeping with the congressional goal of ensuring that all schoolchildren _ regardless of the public or private, religious or secular nature of their educational choices _ have access to instructional materials and equipment appropriate to this technological age,” attorneys for the Catholic school parents wrote in their brief to the Supreme Court.

Striking down Title VI, they argue, would discriminate against children attending religious schools. They say the intent of the First Amendment is not to prohibit all public support for religious institutions but to treat all groups equally without regard to their religious affiliation.

Lee Boothby, the Washington attorney who has been with Helms and Schneider since the beginning, sees a different equality issue at play.

“The intervenors don’t want to be treated equally because they want the same benefits as a public school without the responsibility of being required to accept all students,” he said.

Boothby said the monitoring methods in Title VI do not prevent publicly provided materials from being used to advance church causes. Parochial school officials, for example, could easily use school computers to print church bulletins without being detected. That amounts to a direct subsidy for churches in defiance of the First Amendment, Boothby said.

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As it prepares to take up the Helms case, legal scholars say the Supreme Court could react in three ways.

It could strike down Title VI and further separate church and state, agreeing with Helms and Schneider and returning to the court’s leanings of 20 years ago.

Or it could go to in the opposite direction, blurring the separation of church and state in favor of an “equality” doctrine in which religion in general may not be considered in distributing benefits. As it has become more conservative in recent years, the court has inched toward such a stance, said Akhil Amar, a constitutional law professor at Yale University.

But the most likely result, Amar said, will be a ruling somewhere in the middle, possibly finding Title VI acceptable but stopping short of making broad declarations that would open the way for more public support for religious schools.

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