"Pervasively sectarian"

[Marty Lederman]

I think that Michael McConnell's fundamental objection is not to the
"pervasively sectarian" distinction/characterization, but instead to the "no
direct aid can be used for religious instruction" rule that engendered the
p.s. distinction.  He appears to agree that there are some schools (albeit
perhaps not all those that the Court has characterized as p.s.) in which the
secular and the sectarian are (in the Court's words) "inextricably
intertwined" in the classroom, and in which aid provided to teachers for
secular purposes therefore will "invariably" be used for religious
inculcation, as well.  He simply believes (as he has argued in the Helms
litigation and in many other fora) that the "no direct funding" rule is
mistaken, and that so long as the aid is used for its intended secular
purposes, there should be no constitutional impediment if the aid also
supports religious inculcation.  Indeed, he argues that there is something
fundamentally wrong with an E.C. doctrine that encourages aid recipients to
attempt to segregate the secular and the sectarian.  For example "I do not
think there is any legitimate public purpose in discouraging the integration
of religious thought with the entire curriculum."

As I understand it, however, Jim Dwyer's question was premised on the
assumption that the Court will (in Helms and in potential vouchers cases)
*retain* the "no direct aid" rule.  He wonders whether, assuming the
continued vitality of that rule, O'Connor is likely to abandon the p.s. test.
 In other words:  Will she agree that religious primary and secondary schools
cannot segregate the secular and the sectarian when using state aid -- at
least not without "entangling" state supervision?

I think Prof. Dwyer is right to wonder about that question.  The Court has,
indeed, been split over the years on the "pervasively sectarian" question
(see Tilton, Kendrick); but until recently the Justices *uniformly* embraced
the "no direct aid" rule.  For example, there was no dissent on the question
in either Tilton (every Justice agreed that the state-funded building could
not *ever* be used for religious purposes) or Kendrick.  In Rosenberger and
in Columbia Union College, Thomas has become the first Justice expressly to
reject the rule.  O'Connor, for her part, embraced the "no direct funding"
rule in Kendrick, called it a "bedrock" E.C. principle in Rosenberger, and
indicated in her "split" opinion in Ball that, whereas aid provided directly
to students by public employees was ok, aid that could be put to use by
religious school teachers was not.  On the other hand, her dissent in Aguilar
indicated that she might reject one of the principal rationales of the p.s.
restriction -- i.e., that the oversight that would be necessary to ensure
that aid to p.s. schools is not used for sectarian education would invariably
be too "entangling" (see Lemon, Meek, Marburger, etc.):  "[S]tate efforts to
ensure that public resources are used only for nonsectarian ends should not
in themselves serve to invalidate an otherwise valid statute. . . .  If a
statute lacks a purpose or effect of advancing or endorsing religion, I would
not invalidate it merely because it requires some ongoing cooperation between
church and state or some state supervision to ensure that state funds do not
advance religion."

Prof. McConnell himself has hinted at an equally interesting question --
namely, under the Court's traditional "no direct aid" rule, precisely what
sort of religious "inculcation" may not be supported with public aid:  is it
impermissible merely to "integrate[] . . . religious understandings . . .
into the curriculum," or is the prohibited activity limited to more express
(or "direct") religious instruction or proselytizing?  The Court has never
been very clear on the question; more often, it has used ambiguous phrases
similar to O'Connor's reference above to ensuring that "state funds do not
advance religion."

(Please note:  None of the above is intended to express a view one way or the
other on whether the Court *should* abandon the "no direct funding" or "no
direct aid to p.s. schools" principles!)

Marty Lederman
(in my personal capacity)



Michael McConnell writes:

James Dwyer raises an interesting question about the "pervasively
sectarian" (PS) caetgory. In the past, this distinction has been
interpreted very crudely, to the effect that religious elementary and
secondary schools are PS, and nothing much else (except probably
houses of worship, but that has never come up).  This was a way of
justifying the status quo as of 30 years ago, in which government
funds were provided to all sorts of religiously affiliated
organizations (which are run by Protestants as well as others) and
not to schools (which were predominantly Catholic). The case in which
the distinction crystallized as a constitutional category, Tilton v.
Richardson, was a plurality opinion; a majority of the Court thought
the distinction was malarky. The doctrine did have a certain
functional value, however: since the PS judgment was unrelated to the
actual facts of the case, it could be administered without intrusive
and subjective examinations of degrees of religiosity. No religiously
affiliated elem or secondary school could get funding, no matter how
much it watered down its religious identity.  If the distinction is
to be taken seriously, as Columbia Union College shows, it will be an
entanglement nightmare, and will create an incentive for
secularization.

Catholic schools have not tended to challenge the PS categorization
in most cases, even though, as James Dwyer points out, they might
well succeed. I suspect this is because it would be awkward to admit
(to themselves and their communities) that religion is separate from
the rest of the curriculum, since their ostensible purpose is to
integrate religion into the rest of the curriculum.

I think the distinction is bad law and unsalvageable, since I
do not think there is any legitimate public purpose in discouraging
the integration of religious thought with the entire curriculum. That
is what my wife and I have tried to do in our homeschooling, with
highly satisfactory academic results. If "pervasively sectarian"
means that religious understandings may not be integrated into the
curriculum, it should be scrapped as a constitutional concept. It
promotes a particular view of religion.
-- Michael McConnell (U of Utah)