We filed an amicus curiae brief in the Supreme Court asking it to overturn the Fifth Circuit's decision in Helms v. Picard, 151 F.3d 347, 374 (5th Cir. 1998), which held portions of a Louisiana program under Chapter 2 of Title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. § 7301) unconstitutional.
The case, now entitled Mitchell v. Helms, provided us with an opportunity to call the Court's attention to the historical origins of the use of the word "sectarian" in cases such as these. To the policymakers of the mid-19th century, "sectarian" did not mean the same thing as "religious." It was instead an epithet applied to those who did not share the "common" religion taught in the publicly funded "common schools."
We argued that the modern notion of prohibiting funding for children attending "sectarian" schools is in fact a remnant of widespread Nineteenth Century anti-Catholicism. In response to Catholic immigration and rising political power, many States in the late Nineteenth and early Twentieth Centuries instituted laws prohibiting funding for children attending Catholic schools, while maintaining the Protestant public school system (reading the King James Bible was permissible in most states, while even bus transportation and textbook loans for students at parochial schools was attacked). The outcome of this case may have great ramifications for our school choice lawsuit in Massachusetts, Wirzburger v. Galvin.