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.
2 Congregation for Catholic Education, La scuola cattolica alle soglie del terzo millennio (Rome 28–12–1997).
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.
4 Moreover, the Codex luris Canonici 1983 gives specific norms about schools (Canons 706–806).
5 Berlingò, S, Seuole confessionali, in Enc. Dir. (Milan, 1989) p 925ff.
6 These expressions are used by Berlingò, S, Scuole confessionali, p 923. See also Berlingò, S, Promozione culturale e pluralismo scolastico (Milan: Giuffrè, 1983) p 1ff.
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’.
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’.
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).
10 Bassett, W W, Religious organizations and the Law (St. Paul: West Group, 2003) p 3.24.
11 Bassett, W W, Religious organizations and the Law, p 3.71.
12 Waltz v Tax Commission, 397 US 664 (1970).
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.
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. See Tilton v Richardson, 403 US 672 (1971):Roemer v Board of Public Works, 426 US 736 (1976);Hunt v McNair, 413 US 734 (1973).
15 Meek v Pittenger, 421 US 349 (1975).
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’,  Dir. Eccl. II, p 500.
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.
18 Rimoli, F, Scuole private e pubblici finanziamenti: la Corte prende tempo,  Giur. Cost., p 708.
19 Article 9.1 Agreement.
20 Berlingò, S, Promozione culturale, p 60.
21 Berlingò, S., Libertà d'istruzione e fattore religioso (Milan: Giuffré, 1987) p 17ff.
22 Pierce v Society of Sisters, 268 US 510 (1925).
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’.
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.
25 Cochran v Louisiana State Board of Education, 281 US 370 (1930).
26 Lemon v Kurtzman, 403 US 602 (1971) at 612–613. 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.
27 Everson v Board of Education, 330 US 1 (1947) at 18.
28 Lemon v Kurtzman, 403 US 602 (1971) at 615.
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.
30 Aguilar v Felton, 473 US 402 (1985);School District of Grand Rapids v Ball, 473 US 373 (1985).
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.
32 School District of Grand Rapids v Ball, 473 US 373 (1985) at 385.
33 Lally-Green, M E, Constitutional and statutory considerations, p 274.
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.
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.
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.
37 Bassett, W W, Religious organizations and the Law, p 9–107.
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.
39 Agostini v Felton at 233–234.
40 Mitchell v Helms, 530 US 793 (2000).
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.
42 Mitchell v Helms, 530 US 793 (2000) at 795.
43 Mitchell v Helms at 816.
44 Zelman v Simmons-Harris, 122 SC 2460 (2002).
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).
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.
47 Zelman v Simmons-Harris, 122 SC 2460 (2002). See also Bassett, W W, Religious Organizations and the Law, pp 9–114–7 ff.
48 Berlingò, S, Promozione culturale, p 38.
49 Constitutional Court, 30 December 1994, decision n. 454,  Dir Fam, p 445.
50 Article 42 of the Presidential Decree 24 July 1977, n. 616.
51 For a study of regional legislation, see Cimbalo, G, II finanziamento alla scuola privata tra leggi statali e regionali,  Quad Dir e Pol Eccl, 1, 145.
52 Cavana, P, Contributi alle scuole non statali e nuovi poteri delle Regioni (D lgs n. 112/1998),  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.
53 TAR Emilia Romagna, sez II, ordinance 28 July 1997. n. 574.  Quad Dir e Pol Eccl, 3. 710.
54 Constitutional Court, ordinance 17 March 1998, n. 67.  Quad Dir e Pol Eccl, 3, 759.
55 TAR Emilia Romagna, sez II, with ordinance 21 April 2000, n. 491,  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,  Quad Dir e Pol Eccl, 3, 721.
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.
57 Law 10 March 2000, n. 62, in G U 21 March 2000, n. 67.
58 Torre, G Dalla, ‘Il disegno di legge governativo sulla parità scolastica nel quadro dei principi constituzionali,  Dir Fam e Per, 182.
59 Berlingò, S., ‘Il pendolo dell'istruzione’,  Quad Dir e Pol Eccl, 3, 804.
60 Freni, F, ‘La legge sulla parità scolastica e la “piena” libertà delle scuole confessionali’,  Quad Dir e Pol Eccl, 2, 467.
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.
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.
63 Burtchaell, J T, The dying of the light, the disengagement of colleges and universities from their Christian Churches (Grand Rapids: Eerdmans, 1998).
64 Agostini v Felton, 521 US 203 (1997); Mitchell v Helms, 530 US 793 (2000); Zelman v Simmons-Harris 122 SC 2460 (2002).
65 Monsma, S V, ‘The “pervasively sectarian” standard in theory and practice’,  Notre Dame Journal of Law, Ethics and Public Policy, 321.
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.
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.
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.it
69 ‘Buono scuola e diritto allo studio: Stato e Regioni, in Libero insegnamento’, 9–10 November–December 2002, p. 76.
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).
71 Berlingò, S, Pluralismo scolastico, p 91, where the author proposed staff exchange between public and private/religious schools.
72 For example, Law n. 52 del 1995 that foresaw an integrated system with some no-profit organisations (Ipab).
73 Donati, F, ‘Pubblico e privato nel sistema di istruzione scolastica’,  Le Regioni, 3, 556.
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’.
75 For example, vouchers have been already introduced in Veneto by a regional statute.
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