July 9, 2004
CAPITAL IMPROVEMENT GRANTS FOR PAROCHIAL SCHOOLS
By: Soncia Coleman, Research Analyst
You wanted to know if state law prohibits parochial schools from receiving grants for capital improvements and if there is any such assistance available on the state or federal level.
Whether providing capital improvements for parochial schools violates constitutional separation of church and state requirements appears to depend on the circumstances. Currently, neither the United States Department of Education or the Connecticut Department of Education offer such funding.
The First Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, prohibits governments from enacting laws respecting the establishment of religion. The Connecticut Constitution contains similar clauses (Conn. Const. Art. VII). Connecticut has not passed legislation concerning the establishment clause and its appellate courts have analyzed this issue under the federal constitution's provisions.
In interpreting the establishment clause, the United States Supreme Court has typically relied on the “Lemon Test.” In Lemon v. Kurtzman (403 U.S. 602 (1971)), the Supreme Court determined that government action relating to religious schools would be constitutional if the law (1) does not have a secular purpose; (2) does not have a primary effect that advances or inhibits religion; and (3) does not produce excessive government entanglement with religion.
In 1973, the Supreme Court applied the test to a New York law that, among other things, would have provided reimbursement directly to parochial schools for maintenance and repair expenses. Ultimately, the court found the law unconstitutional because it had the purpose or effect of advancing religion. (Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973)).
While the Lemon Test has been the standard point of departure in establishment clause cases, members of the Supreme Court have expressed dissatisfaction with, and in some cases, elected not to apply the test. Additionally, in recent years, the court has applied the test in a more flexible manner, allowing, for instance, the “neutral” provision of benefits to parochial schools. See e.g., Mitchell v. Helms, 530 U.S. 793 (2000). Notwithstanding such rulings, courts still point out the importance of insuring the secular use of funds provided. See, Freedom from Religion Foundation Inc. v. Bugher, 249 F.3d 606 (7th Cir. 2001).
The Bush Administration's Faith-Based and Community Initiatives seek to provide federal funds to faith-based groups, including parochial schools, on the same basis as it provides aid to non-sectarian organizations, but within the aforementioned constitutional restraints. In support of these programs, the U.S. Department of Education points to Mitchell, stating that it believes, under current legal precedent, that it may fund all service providers without regard to religion as long as the funds are not used for “inherently religious purposes.”
In fact, the U.S. Department of Education recently rescinded regulations, relating to religious organizations' participation in education department programs, that prohibited the use of grants and subgrants for construction, remodeling, repair, operation, or maintenance of any private educational facility or any part of a private educational facility. (69 Fed. Reg. 31709, 31715 (June 4, 2004.)) It is the department's view, as espoused in comments issued with the regulations, that such a provision does not accurately reflect the current state of the law, which would allow grantees and subgrantees to use funds for those purposes to the extent that such facilities are used for eligible department-funded activities, and not for inherently religious activities such as religious worship, instruction, or proselytization.
In any case, according to the U.S. Department of Education, there is currently no statutory authority for this use of department funds and therefore the department has no programs that fund such capital improvements.
However, in the past certain parochial schools were eligible for federal school renovation grants. Private non-profit elementary or secondary schools were eligible for such grants if they had a population of students in poverty of at least 40 percent and were located within the boundaries of a local education agency (LEA) that received a grant under the program. The federal government stopped obligating funds for this program in September of 2002. States and LEA's were required to obligate their funds by September of 2003. The Connecticut Department of Education does not currently fund capital improvements for parochial schools.