Catholic Schools and the Supreme Court
On January 21, 1935, a mother from Rogers City, Michigan, wrote to the National Catholic Welfare Conference (today’s USCCB) complaining about the school bus situation for her six-year-old daughter. She explains: “We live 9 miles from the city and the School Bus calls for the children out here. All of the children are of Catholic families but we are the only ones who send our child to the Parochial School.” She goes on to say, “We have had quite a time about the Bus calling for our child.” Evidently the school board had denied transportation to the little girl on the grounds that it was “not compelled to transport a child attending the Parochial Schools.” Only “after earnestly pleading with them” was the mother able to get the school board to agree to take her daughter into town. However, the little girl was still “compelled to walk from the Public School to the Catholic school which is a distance of about one mile.” Writing near the end of January, the mother points out “The winters are very severe here,” adding, “The child is cold when she gets off the Bus and has to start on her long walk. Then again she walks to the Public School at night and she is cold when she starts on her long drive.” Unfortunately, the sad story of the little girl from Rogers City, Michigan, is very characteristic of the kinds of issues that Catholic schools brought before the courts throughout the twentieth century.
The contentious history of American Catholic education is perhaps nowhere more evident than in the lengthy list of related lawsuits—many of which have risen all the way to the Supreme Court. Among these, the 1925 Oregon school case is the most infamous. In 1922, the Ku Klux Klan backed a bill that required most school-age children to attend public schools; the Oregon School Law, as it became known, was an affront to Catholics who fought to keep their children in Catholic schools; in 1925, the Supreme Court unanimously declared the Oregon School Law unconstitutional in a decision that Neil McCluskey, S.J., has called “The great modern charter of parental rights in education.”  For more about the Oregon school case, please visit our sister-site.
Meanwhile, the most commonly cited ideas to come before the Supreme Court in the context of Catholic schools have been the doctrine of separation of church and state and the Establishment Clause of the First Amendment, which states: “Congress shall make no law respecting an establishment of religion.” The 1947 Supreme Court case Everson v. Board of Education is a prime example; the case was brought by a New Jersey man who objected to a program extending bus transportation to parochial school students on the grounds that such a program violated the Establishment Clause. The Court ultimately disagreed with him, upholding the program. Unlike the unanimous decision in the Oregon school case, however, the victory for Catholic schools in Everson was narrow (5–4). The Court sided with the Board of Education, reasoning that the New Jersey program did not directly support Catholic schools. Rather, it “assist[ed] parents of all religions with getting their children to school.” 
In 1971, Lemon v. Kurtzman built upon the Establishment Clause by introducing what came to be known as “the Lemon test,” which predicated the constitutionality of school aid programs on the satisfaction of three conditions:
- The purpose of the aid must be primarily secular.
- The aid can neither advance nor inhibit a particular religion.
- The aid must not result in the excessive entanglement of the church and the state.
Of course, the third condition begs the question: what might be considered “excessive entanglement”? As Timothy Walch has noted, “In retrospect it is clear that the Court was not willing to go much farther [sic] than schoolbooks and bus transportation.” 
On June 25, 1973, the Supreme Court delivered a devastating blow to proponents of Catholic education. Recognizing that Catholic schools were experiencing a financial crisis and that the maintenance of old school buildings was a particularly burdensome expense, New York's Education and Tax Laws had attempted to assume some responsibility for the health and welfare of nonpublic school students through maintenance and repair grants. The state also had reason to want nonpublic school students to remain in nonpublic schools; it worried that “any sharp decline in nonpublic school pupils would massively increase public school enrollment and costs, seriously jeopardizing quality education for all children.”  However, in Committee for Public Education v. Nyquist, the Supreme Court found that the “maintenance and repair provisions of the New York statute violate the Establishment Clause because their inevitable effect is to subsidize and advance the religious mission of sectarian schools.”  Likewise, the Court ruled that various other financial aid programs for nonpublic elementary and secondary schools in New York—including tuition reimbursement grants and income tax benefits—were also in violation of the Establishment Clause because such programs had “the impermissible effect of advancing the sectarian activities of religious schools.” 
In the 1990s, the Establishment Clause was again at the center of a Supreme Court case involving Catholic schools: Zobrest v. Catalina Foothills School District (1993). The case was the ninth and last that William Bentley Ball argued before the Supreme Court; he had previously argued two landmark Supreme Court cases on Catholic education—Lemon v. Kurtzman (1971) and Meek v. Pittenger (1975)—with mixed results. In Lemon, the Court ruled that supplementing the income of underpaid parochial school teachers excessively entangled the state in the affairs of the church, therefore failing to meet the third condition of the Lemon test. In Meek, meanwhile, the Court approved the use of public funds to provide children in private schools with “auxiliary services” (e.g., counseling and testing) and “instructional materials” such as periodicals, photographs, maps, charts, recordings, and films, but forbade the supply of “instructional equipment” such as projectors and recorders, which, they reasoned, could become vehicles for the delivery of explicitly religious content.
On February 24, 1993, the Court heard Ball’s oral argument (click to listen to the audio!) on behalf of the Zobrest family, whose son Jim was deaf and required the services of a sign-language interpreter. When Jim began attending Catholic instead of public schools, the local school district refused to continue providing him with sign-language interpretation on the grounds that it would violate the Establishment Clause; in essence, the school district alleged that “the interpreter would act as a conduit for the child’s religious inculcation, thereby promoting his religious development at government expense in violation of the Establishment Clause.”  Ball, however, successfully persuaded the Court that such relief in no way violated the Establishment Clause; furthermore, not to provide such relief, he argued, violated the Individuals with Disabilities Education Act (IDEA) and the Free Exercise Clause of the First Amendment—harkening back to the concept of parental choice and the government’s responsibility to distribute aid neutrally (i.e., withouting advancing or inhibiting a religion).
Taking a step back, we can appreciate one of the central ironies of the longstanding dispute over governmental aid to Catholic schools; while some balk at the idea of tax dollars being spent on private—especially religious—schools, the parents of children enrolled in Catholic schools have historically been obligated to support both school systems simultaneously. As McCluskey put it in 1959: “the state taxes all citizens alike to form a common pool for the support of education but uses this money exclusively for a type of school which, for reasons of conscience, Catholic parents are unwilling to patronize; these parents, because of religious convictions, are forced to pay twice for the education of their children.”  In his 1980 election campaign, Ronald Reagan won the hearts of Catholic school advocates by endorsing the notion of tuition tax credits.  The 1983 Supreme Court case Mueller v. Allen approved the use of state income tax deductions for school expenses incurred at religious, private, and public schools alike.
In closing, it is instructive to bear in mind that separation was never intended to be an end in itself. After all, “‘the basic American principle of Church–state relations is not separation but religious liberty.’”  Likewise, the Establishment Clause should always be understood in connection with the Free Exercise Clause, which adds: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
 Neil G. McCluskey, Catholic Viewpoint on Education (New York: Hanover House / Doubleday & Co., 1959), 129.
 “Everson v. Board of Education of the Township of Ewing,” Oyez, accessed October 5, 2020, https://www.oyez.org/cases/1940-1955/330us1.
 Timothy Walch, Parish School: American Catholic Parochial Education from Colonial Times to the Present (Washington, D.C.: National Catholic Educational Association, 2003), 216.
 “Committee for Public Education v. Nyquist, 413 U.S. 756 (1973),” Justia, accessed January 11, 2021, https://supreme.justia.com/cases/federal/us/413/756/.
 and  Ibid.
 “Zobrest v. Catalina Foothills School District,” Oyez, accessed January 11, 2021, https://www.oyez.org/cases/1992/92-94.
 McCluskey, Catholic Viewpoint on Education, 167.
 Walch, Parish School, 227.
 McCluskey, Catholic Viewpoint on Education, 150.