Nursing Favoritism

Combest pointed out this morning that the Post-Dispatch has run an article about the state auditor’s concern about the city of St. Louis paying for a set of nurses to serve three dozen Catholic and Lutheran schools. The audit revealed that this practice has been going on for about 20 years, and that it is part of a “‘memorandum of understanding’ between the Archdiocese of St. Louis and the Lutheran Elementary School Association.” It appears that this sort of public support is not being offered to any of the other private schools, and that the public schools have to pay for nursing services out of their own operating budgets. While it might be helpful to have some additional information regarding this program, it appears to be a plain violation of the Missouri Constitution as well as a potential violation of the First Amendment’s Establishment Clause.

Article I, section 7, of the Missouri Constitution reads:

[N]o money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion […] and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Article IX, section 8, says:

Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church, or sectarian denomination whatever[.]

To be perfectly clear, these constitutional provisions are problematic in their design, because they were initially intended to discriminate against Catholics who, unhappy that their tax dollars were being devoted to public schools that promoted Protestantism and denigrated Catholicism, claimed it was only fair that they should get to use public funds to create their own schools. Incensed at the prospect of publicly funded Catholic schools, many states — including Missouri — adopted constitutional measures that would prohibit such a possibility. Thus, the basis for these provisions was religious discrimination, and one of the open questions in constitutional law is whether a state constitutional provision rooted in religious discrimination might itself be invalidated under the First Amendment.

But, as time has passed (and particularly as public schools abandoned the prayer, hymn-singing, and Bible readings that had previously been common), Missouri’s constitutional requirements have come to stand first for a more general principle that religious groups (and particularly religious schools) should never be given any special favors. Some Missouri Supreme Court cases suggest that the constitutional problem might evaporate if the city were to adopt a more general program that provided nursing services to all schools and their students, although Missouri courts have previously been willing to use these constitutional sections to eliminate even aid programs that made no distinction between public and private schools.

But, if the city of St. Louis has forged a special deal to provide Catholic and Lutheran schools — and only Catholic and Lutheran schools — with nursing support, as the auditor’s report suggests, the city would certainly seem to be impermissibly playing favorites among religious groups.