The Legislature’s Education Committee, which held public hearings on the proposal across the state in October, heard from a number of Catholic-school teachers about the discriminatory effect of the proposal. The Committee chair’s response was that including religiously-affiliated private school teachers in the proposal would be unconstitutional. NFCSP support staff responded with a lengthy letter analyzing the Supreme Court’s First Amendment decisions and arguing for inclusion. That letter pointed out that the U.S. Supreme Court most recently restated its First Amendment philosophy in the Mitchell v. Helms case as follows:

"If the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, see Allen, 392 U.S., at 245-247 (discussing dual secular and religious purposes of religious schools), then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients."

The letter to the Committee argued that a teaching incentive paid to a private-school teacher on the same basis as that paid to a public school teacher clearly passes the Court’s test as summarized above. The state’s legitimate secular purpose of ensuring quality education for all students by encouraging teachers to remain teachers in Nebraska is fulfilled by offering salary incentives on the same terms to all who adequately further that purpose.

At this time, it is unclear what the future holds for the Task Force recommendations. The Governor has indicated that he would not support a tax increase to fund the plan, a state Chamber of Commerce survey indicates that the business community does not support the proposal, and a number of senators have expressed reservations about the proposal. The Federation’s position is that, if the Professional Teacher Incentive Program is to become law, it should include ALL of Nebraska’s certificated teachers, including those in private schools who educate one out of every eight children. You can let the Education Committee know your thoughts by contacting its chairwoman, Sen. Ardyce Bohlke, District 33, State Capitol, P.O. Box 94604, Lincoln, NE 68509-4604.

The other senators on the Education Committee and their legislative districts are, Deb Suttle #10, Kermit Brashear #4, Ron Raikes #25, Bob Wickersham #49, Marian Price #26, Elaine Stuhr #24, and George Coordsen #32. These senators can all be reached at the same mailing address as Senator Bohlke.

On June 28, by a 6-3 vote, the United States Supreme Court upheld the use of federal funds for computer hardware and software, library books and media materials that are loaned to private schools, including religiously affiliated schools. The decision in the case, titled Mitchell v. Helms, addressed the constitutionality of Chapter 2 of the Education Consolidation and Improvement Act of 1981, also known as the Title VI program. This program, which also provides federal aid to public schools, was challenged on the grounds that the loaning of educational resources to religiously affiliated private schools violated the Establishment Clause of the First Amendment of the U. S. Constitution.

Writing for the court, Justice Clarence Thomas rejected the argument that Chapter 2 is a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid are religiously affiliated. Rather, Justice Thomas wrote, the key factor to determining whether governmental aid to religious schools results in religious indoctrination ultimately depends on whether any indoctrination that occurs could reasonably be attributed to governmental action. In distinguishing between indoctrination that is attributable to the state and indoctrination that is not, the court has consistently turned to the neutrality principle, upholding aid that is offered to a broad range of groups or persons without regard to their religion.

Of particular interest is the Court’s response to the argument that a federal aid recipient’s religious nature is relevant for constitutional analysis purposes. The court ruled that the religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose. "If a program offers permissible aid to the religious, the areligious, and the irreligious, it is a mystery which view of religion the government has established, and thus a mystery of what the constitutional violation would be."

The Court further found the inquiry into a recipient’s religious views to be not only unnecessary, but offensive. "Opposition to aid to ‘sectarian’ schools acquired prominence in the 1870’s with Congress’s consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that ‘sectarian’ was code for ‘Catholic.’…In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now."

In conclusion, the court ruled that "Chapter 2 does not result in governmental indoctrination, because it determines eligibility for aid neutrally, allocates that aid based on the private choices of the parents of school children, and does not provide aid that has an impermissible content. Nor does Chapter 2 define its recipients by reference to religion"

In Nebraska, Chapter 2 has provided significant aid to Catholic-school children in the form of loaned computer hardware and software, audio-visual equipment, and library resource materials that the children might not otherwise have had access to. The Court’s favorable decision upholding religious school participation in this federal education aid program is cause for great celebration.

Choice Tidbits

FAQ's (Frequently Asked Questions ) About Parental Choice Legislation

Our society, through enactment of various federal and state laws, has decided that special-needs, disabled children are to receive a "free appropriate public education" regardless of the cost. The costs of providing this education, which often includes para-educator assistance or expensive, health-related costs such as around-the-clock nursing services, are then spread throughout a broad base of taxpayers within the school district and the state, including the taxpayers who send their children to nonpublic schools for their regular education.

If the legislature’s goal is to have nonpublic schools operate as the functional equivalent of public schools for high needs, high-cost, special education purposes, then the nonpublic schools must be provided with the same level of special education funding provided to the public schools. Otherwise, the nonpublic schools will incur yet another unfunded mandate from the state to be paid for by the parents and other parishioners who fund the operations of the school. However, under Article VII, Section 11 of the Nebraska constitution, the legislature is prohibited from appropriating funds to nonpublic schools; a provision known as a Blaine Amendment adopted in 1875 during a period of extreme anti-Catholic sentiment.

expense tax relief or other support for their children’s regular education by linking such educational assistance to a requirement that private schools must provide unfunded special education services.

The Legislature needs to be reminded that their inquiry into school choice funding proposals should focus on the issue of adequate support for all children regardless of school attended. In the absence of broad-based, public-funding, like that provided to the public schools, the decision whether a particular nonpublic school can serve a particular student is, in our view, best left to the school administration and the parents of that child.