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Published online by Cambridge University Press: 31 July 2008
The aim of this paper is to make a comparison between the legal status of religiously affiliated schools in America and those in Italy, taking into account the difference between the two legal systems in which these institutions operate, and the different understanding of Church-State relations (separatism in the USA, Church-State Agreements in Italy). First, the study examines the different juridical legal structures offered by the two legal systems to religious organisations to manage secular works and protect their property. Secondly it examines the problem of the access of religiously affiliated schools to the public funding necessary for these institutions to continue to develop their mission: in both legal systems religiously affiliated schools are constitutionally denied direct access to public funding, but some forms of indirect access have been gradually admitted. Thirdly, the article examines new perspectives opened by recent statutes (in Italy) and decisions (in the USA) that are altering the traditional relationship between public/private and religious/secular which are going to offer a new, more equal role to religiously affiliated schools in both systems, preserving their spiritual identity and ethos.
1 Torre, G Dalla, La questione scolastica nei rapporti fra Stato e Chiesa (Bologna: Patron Editore, 1989) p 11.Google Scholar
2 Congregation for Catholic Education, La scuola cattolica alle soglie del terzo millennio (Rome 28–12–1997).Google Scholar
3 Chopko, M, Control of and administration for separately incorporated works of the diocesan Church, in Acts of the Colloquium, Public ecclesiastical juridic persons and their civilly incorporated apostolates in the Catholic Church in the U.S.A.: canonical-civil aspects (Rome: Pontifical University St Thomas Aquinas, 1998) p 94.Google Scholar
4 Moreover, the Codex luris Canonici 1983 gives specific norms about schools (Canons 706–806).Google Scholar
5 Berlingò, S, Seuole confessionali, in Enc. Dir. (Milan, 1989) p 925ff.Google Scholar
6 These expressions are used by Berlingò, S, Scuole confessionali, p 923.Google Scholar See also Berlingò, S, Promozione culturale e pluralismo scolastico (Milan: Giuffrè, 1983) p 1ff.Google Scholar
7 Article 10 of the Agreement 18 February 1984, enforced in Italy through law n. 121/1985: ‘universities, seminaries, academies, colleges and other institutions for clergymen and religious figures or for education in ecclesiastical subjects depend exclusively on ecclesiastical authority’.Google Scholar
8 Article 9 of the Agreement: ‘The Italian Republic, in conformity with the principle of freedom of school and tuition and in the terms provided by the Constitution, guarantees to the Catholic Church the right freely to institute schools of every grade and level and educational institutions. Complete freedom is assured to schools that obtain equality, and to their students a school treatment equal to public schools and other local bodies, also about State examinations’.Google Scholar
9 Pietro, M Di, Organizational overview, in Who do you say we are? Perspectives on Catholic Identity in Catholic Charities (Alexandria: Catholic Charities USA, 1997) p 26 ff. The factors on which this distinction is based are the purpose, forms of funding, beneficiaries of the activity and constitutional protection. The purpose of religious corporations is to hold and administer the property of the canonical juridical person (diocese, religious institute) and promote the proper purposes of the Church; the purpose of charitable corporations is to develop a charitable purpose in the framework of the mission of the Church (e.g. education, healthcare). About funding, a religious corporation receives money only from donations of the faithful as it is strictly connected with the canonical person; the charitable corporation can receive different forms of contributions, as it is a secular structure. The only beneficiaries of the activities of a religious corporation are its members; the beneficiary of a charitable corporation is the public. Religious corporations are protected under the First Amendment, so they are not subject to some federal and State laws (e.g. involuntary bankruptcy).Google Scholar
10 Bassett, W W, Religious organizations and the Law (St. Paul: West Group, 2003) p 3.24.Google Scholar
11 Bassett, W W, Religious organizations and the Law, p 3.71.Google Scholar
12 Waltz v Tax Commission, 397 US 664 (1970).Google Scholar
13 Bowen v Kendrick, 487 US 589 (1988). This case was about the validity of public funding for sexual counselling (Adolescent Family Life Act), also by religiously affiliated structures. Here the Supreme Court for the first time introduced the distinctions between those institutions that are pervasively sectarian and those that are not.Google Scholar
14 See Bradfield v Roberts, 175 US 291 (1899), about public funding to religious hospitals. The Supreme Court also distinguished between religiously affiliated schools and universities; the latter can have access to public funding.Google Scholar See Tilton v Richardson, 403 US 672 (1971):Google ScholarRoemer v Board of Public Works, 426 US 736 (1976);Google ScholarHunt v McNair, 413 US 734 (1973).Google Scholar
15 Meek v Pittenger, 421 US 349 (1975).Google Scholar
16 Folliero, M C, ‘Finanziamenti alla scuola privata: le scorciatoie delle regioni e la via maestra del Parlamento. La Corte dice ni all'esperimento della Regione Emilia Romagna’, [1998] Dir. Eccl. II, p 500.Google Scholar
17 Article 33.2 of the Constitution: ‘The Republic issues general norms on education and institutes State schools for every order and level’. See Cimbalo, G, La scuola tra servizio pubblico e principio di sussidiarietà. Legge sulla parità scolastica e libertà delle scuole private confessionali (Turin: Giappichelli, 1999) p 122ff.Google Scholar
18 Rimoli, F, Scuole private e pubblici finanziamenti: la Corte prende tempo, [1998] Giur. Cost., p 708.Google Scholar
19 Article 9.1 Agreement.Google Scholar
20 Berlingò, S, Promozione culturale, p 60.Google Scholar
21 Berlingò, S., Libertà d'istruzione e fattore religioso (Milan: Giuffré, 1987) p 17ff.Google Scholar
22 Pierce v Society of Sisters, 268 US 510 (1925).Google Scholar
23 ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws’.Google Scholar
24 Zorach v Clauson, 343 US 306 (1952) at 393. In Everson v Board of Education, 330 US 1 (1947), a State programme to reimburse parents for public transport costs of students of private schools was declared valid.Google Scholar
25 Cochran v Louisiana State Board of Education, 281 US 370 (1930).Google Scholar
26 Lemon v Kurtzman, 403 US 602 (1971) at 612–613.Google Scholar For a study of the Supreme Court cases, see Lally-Green, M E, Constitutional and statutory considerations respecting challenges to the use of religious criteria by religiously-affiliated institutions in employment decision-making, in Acts of the Colloquium, Public ecclesiastical juridic persons and their civilly incorporated apostolates in the Catholic Church in the U.S.A.: canonical–civil aspects (Rome: Pontifical University St Thomas Aquinas, 1998) p 270 and following.Google Scholar
27 Everson v Board of Education, 330 US 1 (1947) at 18.Google Scholar
28 Lemon v Kurtzman, 403 US 602 (1971) at 615.Google Scholar
29 Board of Education v Allen. 392 US 236 (1968), where it was declared constitutionally valid to make loans to buy secular handbooks for students of parochial schools. See also Meek v Pettinger, 421 US 349 (1975). Direct reimbursement and tax deductions to parents for educational expenses are declared constitutionally invalid in Committee for Public Education and Religious Liberty v Nyquist, 413 US 756 (1973); also reimbursement for administration costs for tests are declared valid in Levitt v Committee for Public Education and Religious Liberty, 413 US 472 (1973), but then are declared invalid in Committee for Public Education and Religious Liberty v Regan, 444 US 646 (1980). Some auxiliary, diagnostic and therapeutic services are declared valid in Wolman v Walter, 433 US 229 (1977), previously declared invalid in Meek v Pettinger. In Mueller v Allen, 463 US 388 (1983) tax deductions for educational expenses, including educational costs in private schools, are considered valid.Google Scholar
30 Aguilar v Felton, 473 US 402 (1985);Google ScholarSchool District of Grand Rapids v Ball, 473 US 373 (1985).Google Scholar
31 Meek v Pettinger 421 US 349 (1975) at 371 was about a Pennsylvania statute that anticipated the use of public employees in auxiliary services, such as remedial courses and counselling for students of private schools, to be held in the school premises: Wolman v Walter, 433 US 229 (1977) at 248 was about a programme of remedial courses and counselling held by public employees to students of private schools, in facilities different from school premises.Google Scholar
32 School District of Grand Rapids v Ball, 473 US 373 (1985) at 385.Google Scholar
33 Lally-Green, M E, Constitutional and statutory considerations, p 274.Google Scholar
34 Zobrest v Catalina Foothills School District. 509 US 1 (1993) at 12–13. This case was about the presence of a public teacher for a deaf student in a religiously affiliated school.Google Scholar
35 Witters v Washington Department of Services for the Blind, 474 US 481 (1986) at 489. This case was about constitutional validity of a scholarship for a blind student who wished to use this support to attend a catholic college and become a priest.Google Scholar
36 Zobrest v Catalina Foothills School District, 509 US 1 (1993) at 12; Committee for Public Education and Religious Liberty v Regan, 444 US 646 (1980) at 658.Google Scholar
37 Bassett, W W, Religious organizations and the Law, p 9–107.Google Scholar
38 Agostini v Felton, 521 US 203 (1997) at 231. The case was about public teachers in parochial schools to give remedial courses to disadvantaged children on the basis of the Elementary and Secondary Education Act, Title 1.Google Scholar
39 Agostini v Felton at 233–234.Google Scholar
40 Mitchell v Helms, 530 US 793 (2000).Google Scholar
41 Meek v Pettinger, 421 US 349 (1975); Woman v Walter, 433 US 229 (1977); and also Board of Education of Central School District No 1 v Allen, 392 US 236.Google Scholar
42 Mitchell v Helms, 530 US 793 (2000) at 795.Google Scholar
43 Mitchell v Helms at 816.Google Scholar
44 Zelman v Simmons-Harris, 122 SC 2460 (2002).Google Scholar
45 Bassett, W W, Religious Organizations and the Law, p 2–44.2, notes that in this decision the disputed word ‘voucher’ is never used and it is replaced by the word ‘scholarship’. At State level we can remember, in Wisconsin, Jackson v Benson, 578 NW 2d 602 (1998), where the vouchers provided by the Milwaukee Parental Choice Program are considered constitutionally valid. On the other hand the Supreme Court of Maine considered exclusion of religiously affiliated schools from a State programme that foresaw public funding for scholarships constitutionally valid in Bagley v Raymond School Department, 728 A 2d 127 (Me 1999).Google Scholar
46 Lupu, I C, ‘Government messages and government money: Santa Fe, Mitchell v. Helms, and the arc of the Establishment Clause’, (March 2001) William and Mary L. Rev. 819.Google Scholar
47 Zelman v Simmons-Harris, 122 SC 2460 (2002).Google Scholar See also Bassett, W W, Religious Organizations and the Law, pp 9–114–7 ff.Google Scholar
48 Berlingò, S, Promozione culturale, p 38.Google Scholar
49 Constitutional Court, 30 December 1994, decision n. 454, [1996] Dir Fam, p 445.Google Scholar
50 Article 42 of the Presidential Decree 24 July 1977, n. 616.Google Scholar
51 For a study of regional legislation, see Cimbalo, G, II finanziamento alla scuola privata tra leggi statali e regionali, [1998] Quad Dir e Pol Eccl, 1, 145.Google Scholar
52 Cavana, P, Contributi alle scuole non statali e nuovi poteri delle Regioni (D lgs n. 112/1998), [1998] Dir Fame e Pers 1340. This author thinks that nursery schools are a service of school assistance, and that their direct funding is constitutionally valid.Google Scholar
53 TAR Emilia Romagna, sez II, ordinance 28 July 1997. n. 574. [1997] Quad Dir e Pol Eccl, 3. 710.Google Scholar
54 Constitutional Court, ordinance 17 March 1998, n. 67. [1998] Quad Dir e Pol Eccl, 3, 759.Google Scholar
55 TAR Emilia Romagna, sez II, with ordinance 21 April 2000, n. 491, [2000] Quad Dir e Pol Eccl, 3, 782, proposed again the question of constitutional validity of 1. n. 52/1995. The question has been declared not admissible by Constitutional Court, ordinance 5–6 November 2001, n. 346, [2001] Quad Dir e Pol Eccl, 3, 721.Google Scholar
56 Article 138 Legislative Decree n. 112 del 31 March 1998 published in Gazzetta Ufficiale (Official Bulletin) (hereafter referred to as G U), 21 April 1998 n. 77/L, ordinary supplement G U of 21 April 1998, general series, n. 92.Google Scholar
57 Law 10 March 2000, n. 62, in G U 21 March 2000, n. 67.Google Scholar
58 Torre, G Dalla, ‘Il disegno di legge governativo sulla parità scolastica nel quadro dei principi constituzionali, [1998] Dir Fam e Per, 182.Google Scholar
59 Berlingò, S., ‘Il pendolo dell'istruzione’, [1995] Quad Dir e Pol Eccl, 3, 804.Google Scholar
60 Freni, F, ‘La legge sulla parità scolastica e la “piena” libertà delle scuole confessionali’, [2000] Quad Dir e Pol Eccl, 2, 467.Google Scholar
61 See also in this direction Law 27 December 2002, n. 289, ‘Norms to form annual and pluriennal budget’ (financial law 2003), in G U 31 December 2002, n. 305, ordinary supplement, n. 240.Google Scholar
62 Constitutional Law 18 October 2001, n. 3, ‘Changes to Title V of second part of the Constitution’, in G U n. 248, 24 October 2001.Google Scholar
63 Burtchaell, J T, The dying of the light, the disengagement of colleges and universities from their Christian Churches (Grand Rapids: Eerdmans, 1998).Google Scholar
64 Agostini v Felton, 521 US 203 (1997); Mitchell v Helms, 530 US 793 (2000); Zelman v Simmons-Harris 122 SC 2460 (2002).Google Scholar
65 Monsma, S V, ‘The “pervasively sectarian” standard in theory and practice’, [1999] Notre Dame Journal of Law, Ethics and Public Policy, 321.Google Scholar
66 Lupu, I C, ‘Government messages and government money’, 817. The author quotes Santa Fe Independent School District v Doe, 120 S Ct 2266 (2000), where the tradition of a prayer before football matches in a public school was declared constitutionally invalid.Google Scholar
67 Good News Club v. Milford Central School, 533 US 98, 121 S Ct 2093 (2001), concerning access to school premises by a religious group to do extra school activities. See previously Rosenberger v Rector of University of Virginia, 515 US 819 (1995), where refusal of a school to offer to a religious magazine of students the same support given to secular ones is declared in contradiction with freedom of speech.Google Scholar
68 The Government will enforce legislative decrees to define educational system so as to promote ‘moral and spiritual education’ (art 2.1 b). About nursery schools, the law ensures that a nursery school, for a three-year term, must provide for the education and the effective, psychophysical, moral, religious and social growth of children (art 2.1 e). This law was approved but is not published yet and can be found at the website www.senato.itGoogle Scholar
69 ‘Buono scuola e diritto allo studio: Stato e Regioni, in Libero insegnamento’, 9–10 November–December 2002, p. 76.Google Scholar
70 Article 7.2 of the Presidential Decree n. 275/1999, provides the possibility of forms of co-operation between schools, through agreements concerning didactic, research, experimentation, development education update, administration, accountancy, purchase of goods and services, organisation and other activities coherent with institutional activities, and even “temporary exchange of teachers” (art 7.3).Google Scholar
71 Berlingò, S, Pluralismo scolastico, p 91, where the author proposed staff exchange between public and private/religious schools.Google Scholar
72 For example, Law n. 52 del 1995 that foresaw an integrated system with some no-profit organisations (Ipab).Google Scholar
73 Donati, F, ‘Pubblico e privato nel sistema di istruzione scolastica’, [1999] Le Regioni, 3, 556.Google Scholar
74 See drafts of law n. 377 e n. 2546 at the website www.senato.it See also draft of law n. 3461-A, in discussion, that would give Regions exclusive authority on ‘school organisation and management, maintaining autonomy of schools’.Google Scholar
75 For example, vouchers have been already introduced in Veneto by a regional statute.Google Scholar
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