[1993/oagheade.htm]

OAG 93-80

November 24, 1993

Sharon N. Berger

6001 Fox Creek Court

Louisville, Kentucky 40222

Dear Mrs. Berger:

This opinion responds to your letter to this office in which you stated:

Enclosed materials show that Trinity High School is a parochial, pervasively religious institution and governmental financing for it would clearly violate separation of church and state.

There can, of course, be no objection to the school's principles and goals, but they should not be entitled to government support.

I would appreciate your investigation of the situation and seeing that Constitutional requirements are upheld.

You have provided materials indicating that the City of St. Matthews approved a bond issue to help finance renovation and expansion of the campus of Trinity High School, which is operated by the Archdiocese of Louisville. The bonds are authorized by KRS 103.200, which makes the financing available to “any nonprofit educational institution . . . .”

We begin with the observation that the financing arrangement described to us does not support your suggestion that government funds are being expended to support Trinity High School. On the contrary, our understanding of the financing arrangement indicates that the public nature of the bond issue provides nothing more than a tax and interest advantage for the bondholders. No taxpayer funds are involved at all and the city is not liable on the bonds. This is apparently not a case of government support of a parochial institution, as your letter indicates.

As is often the case in working with constitutional provisions, the interpretations established by the courts may differ from those of the layman. The expression “separation of church and state” does not appear in the Bill of Rights; rather the first amendment says that “Congress shall make no law respecting an establishment of religion . . . .” This provision, known as the establishment clause, extends to the states by way of the fourteenth amendment, and it has been the subject of numerous decisions of the U.S. Supreme Court.

The Supreme Court decisions, although plentiful in number, do not provide a clear and simple test by which to judge the validity of government involvement in parochial schools. The generally accepted rule is that state aid to sectarian schools is permissible if (1) the aid has a secular purpose, (2) the effect of the aid neither advances nor inhibits religion, and (3) the aid does not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d 745, 91 S.Ct. 2105 (1971). Although the test has been applied in dozens of cases, there is some justification for the conclusion that the Court in practice applies only the first two criteria in cases dealing with noncategorical grants to sectarian schools. See Board of Education v. Allen, 392 U.S. 236, 20 L.Ed.2d 1060, 88 S.Ct. 1923 (1968); Roemer v. Board of Public Works, 426 U.S. 736, 49 L.Ed.2d 179, 96 S.Ct. 2337 (1976).

The one constant running through all the Supreme Court cases is the understanding that application of the establishment clause in reference to aid to parochial schools is a fact-intensive exercise that defies the prescription of simple rules. In Wheeler v. Barrera, 417 U.S. 402, 41 L.Ed.2d 159, 95 S.Ct. 2625 (1974), the Court said that the task of deciding when the establishment clause is implicated in the context of parochial school aid is a delicate one and usually requires a careful evaluation of the facts of the particular case. In Wolman v. Walter, 433 U.S. 229, 53 L.Ed.2d 714, 97 S.Ct. 2593 (1977), the Court said that the establishment clause should not be seen as foreclosing a practical response to the logistical difficulties of extending needed and desired aid to all children of the community, including children attending sectarian schools.

In Committee For Public Education & Religious Liberty v. Regan, 444 U.S. 646, 63 L.Ed.2d 94, 100 S.Ct. 840 (1980), the Court stated that for purposes of the establishment clause, there are no broad rules whereby any aid to a sectarian school will be viewed as suspect on the theory that its religious teaching is pervasively intermixed with its activities, or whereby any aid to even secular educational functions of a sectarian school will be forbidden. The Court concluded the opinion by stating,

This is not to say that this case, any more than past cases, will furnish a litmus-paper test to distinguish permissible from impermissible aid to religiously oriented schools. But Establishment Clause cases are not easy; they stir deep feelings; and we are divided among ourselves, perhaps reflecting the different views on this subject of the people of this country. What is certain is that our decisions have tended to avoid categorical imperatives and absolutist approaches at either end of the range of possible outcomes. This course sacrifices clarity and predictability for flexibility, but this promises to be the case until the continuing interaction between the courts and the States—the former charged with interpreting and upholding the Constitution and the latter seeking to provide education for their youth—produces a single, more encompassing construction of the Establishment Clause.

Id. at 444 U.S. 665. For a more thorough discussion of this subject, see Annotation, “Supreme Court's Views Regarding State Aid To Sectarian Schools Under The Establishment Clause And Freedom Of Religion Clauses Of United States Constitution,” 63 L.Ed.2d 804.

From these authorities it is apparent that the Trinity High School financing arrangement cannot be challenged based on the simple assertion that the school is pervasively sectarian. Based on the information and authorities before us, we find no reason to question or investigate the bond issue by the City of St. Matthews.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General