Schoolyard fights

A lawsuit was filed on Aug. 27 by the American Civil Liberties Union of Nevada for five Nevadans seeking to overturn the newly enacted grant program for parents who send their children to private schools. In Nevada, most of the best private schools are religious institutions, and the Nevada Constitution reads in part, “No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.”

The lawsuit comes on the heels of a lawsuit filed by the Thomas More Society for West Career and Technical Academy student Angelique Clark, who wanted to start a political club at the Las Vegas public high school and was denied permission.

In the financial grants case, the ACLU’s filing drafted by Amy Rose reads, “Recognizing that the voucher program would allow public money to be used for sectarian purposes, the Nevada Legislature specifically exempted the funding scheme from the restrictions of [Nevada Revised Statute] 387.045, which states, “[n]o portion of the public school funds shall in any way be segregated, divided, or set apart for the use of an sectarian or secular society or association,” the lawsuit filing reads. “But lawmakers cannot exempt the voucher program from the Nevada Constitution. The program establishes a system whereby, instead of enrolling their children in public schools, parents may obtain and use public money to pay for enrollment in private religious institutions. This is exactly what the Nevada Constitution forbids.”

In her filing, Rose said religious schools dominate the private school industry, including three Nevada counties where religious schools are the only private schools. She cited several whose schools and ministries were essentially the same, and quoted documents issues by others citing the religious nature of their instruction.

The language quoted in the first paragraph above was adopted by Nevada voters in 1880. It likely was directed at Catholicism. And, indeed, just two years after its adoption it prompted a lawsuit by a Catholic orphanage in Virginia City—previously funded by the state—against the State of Nevada. In Nevada ex rel. Nevada Orphan Asylum v. Hallock, the Nevada Supreme Court barred the use of public funds for the orphanage.

Though anti-Catholic feeling probably motivated the original language in the Constitution, the language covered all religions, and feelings against the Church of Jesus Christ of Latter-day Saints in Nevada were probably also involved. What is now Nevada was originally the part of Utah, and statehood was driven in part by dissatisfaction in the Washoe country with the distant Mormon government in Salt Lake City.

In addition to the 1880 language Nevadans also added this in 1938:

“The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.”

After Hallock, the 1880 constitutional language appears never to have been in court again, but it was interpreted several times by state attorneys general, and as the original enactment became more distant in time, the attorneys general found ways to soften the relatively unequivocal language.

An opinion by a public counsel like the attorney general does not have the force of law, but most officials and agencies followed the advice they were given. Currently, it is a brave official who ignores public counsel because they could incur liability.

A 1941 opinion found that the prohibition against public funds for sectarian purposes cannot, in the case of what the attorney general called “crippled” children, be construed to prevent necessary hospitalization in sectarian institutes where no instruction of any kind is imparted.”

In 1954 an attorney general found that school buildings cannot be used for church services. The next year his successor refined that opinion a bit, saying that churches may present “an exhibition or show, open to the general public, which in no way attempted to impart, promulgate or disseminate religious teachings or doctrines.”

In 1956, an AG was asked if a public school district is responsible for interim education of a parochial school child while ill at home—and, if not, whether it would be if the student registered in public school for the duration of the illness. The attorney general found that “the student is not, by reason of his illness, transformed from a parochial student to a public school student.” But the attorney general also said it is not within the province of school enrolling officials to presuppose that a child enrolled during disability” would return to parochial school upon recovery.

The 1965 opinion barely touched on the sectarian question, merely dealing with whether federal school funds should be kept separate from state funds.

In 1977, the attorney general said a school board can allow release a student “from school for limited periods of time for sectarian instruction or devotional exercises at a religious center off school property” if the timing is convenient for the school.

How the case will be defended is not known. The attorney general’s office declined to comment. One supporter of the law, Sen. Ben Kieckhefer, did not address the legal merits, instead attacking the ACLU: “Instead of empowering parents to help their children find an educational environment that meets their needs, the ACLU wants to go back to a system of hard zoning, forcing poor and minority students into chronically failing schools and furthering cycles of generational poverty.”

Some news reports said the case was filed by the ACLU of Nevada and Americans United for the Separation of Church and State, but Americans United is not mentioned in the filing.

Initial news reports on the Angelique Clark case did not make clear whether the club she sought to start was anti-abortion or anti-death penalty, describing it only as “pro-life.” The lawsuit she filed cleared it up: “Clark … wishes to exercise her free speech rights, protected by federal and state law, to create a pro-life club in order to educate her fellow students on the issue of abortion and to offer hope and resources to help in the cases of crisis pregnancies.”

At one time, federal courts were protective of the free expression rights of high school students. In Tinker vs. Des Moines in 1969, the U.S. Supreme Court ruled, “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”

But with the addition of more conservative justices, the court in cases like Bethel School District. No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988) found that perhaps they did stop at the schoolhouse gate.

Some states moved to reinstate student rights, particularly after Hazelwood. In Nevada, Washoe County Sen. Sue Wagner introduced legislation to combat the effect of Hazelwood, but it failed after the Church of Jesus Christ of Latter-day Saints opposed it.