Mitchell v. Helms
530 US 793 (Decided June 28, 2000)
Bill Long
In this contentious Establishment Clause case, the Court held by a 6-3 majority that government distribution of educational materials and equipment both to public and private schools through a school aid program known as "Chapter 2" (of the Education Consolidation and Improvement Act of 1981) did not violate the Establishment Clause. The case expressly overturned two earlier precedents (Meek and Wolman) as Agostini in 1997 had overturned Aguilar and the "Shared Time" program in Grand Rapids. Thus, the Court was either doing one of two things, depending on one's perspective: it was finally bringing some ideological and principled coherence to the Establishment Clause jurisprudence or it was overturningwilly-nilly precedents that had served the Court well in this difficult area.
Background Information
One can sense the utter chaos felt by lower courts on Establishment Clause issues in Justice Thomas' recitation of the procedural history of the case. The lower courts had to pass judgment on the constitutionality of "Chapter 2," which allowed public and private school acquisition of instructional and educational materials as long as the services, materials and equipment provided to the private schools were "secular, neutral, and nonideological." A challenge having been brought, the District Court held in 1990 that this material violated the 2nd prong of the Lemon test because the material loaned to parochial schools constituted direct aid to "pervasively sectarian" schools. Then, after the Judge who so decided had retired, his replacement reopened the issue in 1997 and reversed the decision, pointing to several changes on the legal landscape since 1990. The Circuit Court, however, following a method of deciding cases laid out by the Supreme Court when past decisions of the Court had not been expressly overturned, reversed again. The Supreme Court would reverse once more and, as indicated above, in the process, jettison two of their precedents (Meek and Wolman).
Adding to the chaos is a new test that the Court adopts in this case to determine if the Establishment Clause is violated. Actually, Justice Thomas claimed that this new test, which seems to supersede Lemon, was already present in Agostini in 1997, though Respondent in this case did not refer to the test at all (perhaps out of confusion, you think?) The three "new criteria" are whether a statute or action results in government indoctrination; whether it defines its recipients by reference to religion or whether it creates an excessive entanglement. Actually, in Justice Thomas' opinion, he only pays attention to the first two of the new tests; the third prong (the much-despised-by-conservatives entanglement test that originated in Walz and Lemon) is ignored.
Bringing Order out of Chaos
Justice Thomas isolates two principles that are crucially important for the plurality analysis: neutrality and private
[*Important for this case is the fact that the four-person plurality lays out an extremely broad approach on Establishment Clause issues that the two concurrers--O'Connor and Breyer--disagree with. This approach is found in the following: "If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government...."]
choice.* The first had been around for several decades but came to the fore in Justice Rehnquist's majority opinion in Mueller and provides that if governmental benefits are spread abroad equally to parents of public and private school students alike, then the program probably would not violate the Establishment Clause. The private choice rationale comes out of Witters and Zobrest especially, and provides that if the aid is given to parents/students but they maintain their free ability to choose the forum in which they make use of the aid, then it cannot be said that the state is advancing religion or a religious agenda.
Using these two principles as his tools, Justice Thomas then dissects the statute and concludes that because the benefits of supplies and equipment are made equally available to public and private schools, that it doesn't transgress the Establishment Clause. In addition, the benefits do not necessarily encourage students to enroll in parochial schools, and so the school district cannot be said to be promoting religion.
Other Opinions
As indicated, the concurrence in the judgment sided with the dissenters on the issue of the majority's elevation of the principle of neutrality to central importance. These five claimed that the majority's reading of neutrality "appears to take evenhandedness neutrality and in practical terms promote it to a single and sufficient test for the constitutionality of school aid." The sentence can only be understood in the context of Justice Souter's lengthy dissent in which he pointed out three ways that the Court had used the term "neutrality" since Everson and that the current incarnation of the term in Justice Thomas' opinion was only one of the ways the term had been used. Thus, his approach was not to elevate one interpretation of one term to be a new cornerstone principle of Establishment Clause jurisprudence.
Conclusion
As you read the opinion, however, you become aware that the so-called "culture wars" in our society, at least as it relates to the public role of religion in our country, are being fought out in the seemingly subdued corridors of the Supreme Court. It seems that the conservatives definitely have the upper hand at this moment. Therefore, as of 2000, look for more decisions that support more public educational and financial benefits to parents of private school children as they educate their children.
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