Catholic Schools and the Courts

1. Catholic Schools and the Courts A short history of hard-won existence

2. In the beginning….. • There were no “public” schools. • Schools were begun by churches, operated and staffed by laypersons. • The purpose of schools was both secular and religious. • Few children attended school; fewer beyond the age of 12.

3. In the beginning…. • When “public” schools began, they had a religious component. • They were tax-supported locally; Federal involvement non-existent because of the “reserved powers” • The waves of immigrants of the late 19th and early 20th centuries changed the face of education.

4. Catholic schools... • Came out of the European tradition • Proliferated because of the waves of Catholic immigrants; • Encountered opposition among Church leaders in the US • Although they were almost exclusively tuition-free, never enrolled more than 50% of the Catholic population of children.

5. Catholic schools... • Were tolerated until after WWI • New feelings of xenophobia • New anti-Catholic biases • Subject to state regulations • Came under compulsory education laws

6. Pierce v. Society of Sisters, 1926 • 1922 compulsory ed law: every child between the ages of 8 and 16 in a public school, if they had not completed grade 8 • Society of Sisters was Holy Names in Oregon. • Case decided on 14th amendment rights(saw Catholic schools same as businesses)

7. Meyer v. Nebraska 1923 • Statute that forbade the teaching of German language • Court held that the teacher had the right to teach German • Parents had the right to enroll their children in a private school that taught German language • State had no compelling interest

8. Stephens v. Bongart (NY) 1937 • Is home instruction equivalent to compliance with compulsory attendance? • Parents failed to establish equivalency

9. State v. Massa (NJ 1967) • Is home schooling equivalent? • Does it mean compliance with compulsory attendance? • Parents proved equivalency of instruction

10. Wisconsin v.Yoder 1972 • Also concerned compulsory attendance • Cited Pierce • Sincerity of religious belief • Established grounds for other religious exemptions, e.g. immunization, pledge to the flag, etc.

11. The Biggie: Lemon v.Kurtzman 1971 • Use of vouchers and tax credits • Resulted in the “Lemon Test”: • Primary purpose • Primary effect • Unnecessary entanglement

12. ESEA: 1965 • Federal entanglement • Use of the term “nonpublic” • Legislation included religious schools • Barrera V. Wheeler 1973: should nps services be equal or equivalent?

13. ESEA: Aguilar v. Felton 1985 • Application of on-site service failed “Lemon” test; • Similar PERL suits regarding use of “religious electricity” • Posited on an assumption, not a fact.

14. ESEA: Agostini v.Felton 1997 • On-site services did not violate Establishment Clause provisions • Primary purpose: remediation of poor children • Aguilar had resulted in “excessive entanglement” • Title I has enough safeguards

15. IDEA and Special Education • Zobrest 1993: student could have an interpreter • Russman 1996 reversed Zobrest • IDEA will be under reauthorization in the next Congress

16. Does Kiryas meet the “Lemon Test”? • Established by the Cuomo administration • Has been successfully challenged three times by NYSUT • Continues to be authorized by the NYS legislature; exists today

17. What’s Next? • Zellman-Cleveland voucher case • Reauthorization of IDEA • New programs under NCLB • Spitzer meeting re: AIS