Direct subsidy to parochial schools was ruled unconstitutional by the Seventh Circuit Court of Appeals on April 27.
The appeals court upheld a lower court ruling in favor of the Freedom From Religion Foundation's challenge of a Wisconsin program giving cash grants to religious schools to reimburse them for Internet linkage access costs.
A 3-judge panel of the appeals court in Chicago unanimously upheld Freedom From Religion Foundation Inc. v. Bugher, No. 99-2850, in which a federal judge had ruled the cash grants impermissible.
The grants constitute a "direct subsidy to participating religious schools" that runs afoul of the Establishment clause principles set out by the U.S. Supreme Court in Committee for Public Education v. Nyquist (1973), wrote Judge Harlington Wood, Jr., joined by Judges Michael S. Kanne and Diane P. Wood.
A Wisconsin statute created The Technology for Education Achievement (TEACH) Board to administer an Educational Telecommunications Access program providing assistance to educational institutes for low-cost access to a data line or video link. Taxpayers fund the subsidy through an extra monthly surcharge added to phone bills.
The Freedom From Religion Foundation filed a lawsuit in November, 1998, challenging the constitutionality of the Wisconsin program. Federal Judge John C. Shabaz found internet subsidy to religious schools constitutional, but ruled impermissible cash grants to reimburse sectarian schools that had already installed data lines or video links to access the Internet. The cost to taxpayers to provide a data line to schools, colleges, public libraries, and other eligible institutions is about $640 per month, and $2,300 per month for a video link.
The TEACH program had spent $58,873 to reimburse nine religiously affiliated schools and colleges through the cash grant program prior to the Foundation's challenge.
Justice Harlington Wood, Jr., in concurring that the cash grants are unconstitutional, noted:
"Nothing in the statute, for instance, bars a qualifying school from paying out of state funds the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught, or the cost of heating and lighting those same facilities. Absent appropriate restrictions on expenditures for these and similar purposes, it simply cannot be denied that this section has a primary effect that advances religion in that it subsidizes directly the religious activities of sectarian elementary and secondary schools."
Wood also wrote "there is no evidence of any ability or attempt to monitor the use of the grant money received by the religious schools."
The appeals court found that the direct cash program violated the "Lemon" test used by the U.S. Supreme Court since 1971 to determine the constitutionality of a government practice about religion.
The Lemon test holds that a practice is unconstitutional if it violates any of the following three prongs:
(1) A law must have a secular purpose.
(2) It must have a primary effect that neither advances nor inhibits religion.
3) It must avoid excessive entanglement between church and state.
The Seventh Circuit held that the Wisconsin statute violates the "effects" prong.
The "Lemon" test was invoked by the Supreme Court in Lemon v. Kurtzman, in which the court invalidated a New York program that included direct cash grants from the state to sectarian schools. That case was brought by Alton Lemon, of Pennsylvania, who has recently been named an honorary officer of the Foundation in recognition of his landmark victory for state/church separation.
The Freedom From Religion Foundation, based in Madison, WI, is a national association of freethinkers (atheists and agnostics) working since 1978 to keep church and state separate.
"We are pleased to have stopped this scheme to aid religion," said Foundation president Anne Gaylor.
"Now we shall see if the church schools involved repay Wisconsin taxpayers for the funds illegally sent to them. Under Wisconsin's Catholic governor a substantial number of questionable aids to religion were put in motion."