In light of the MCC’s 40th anniversary, we look back to some of the issues shaped by the MCC over its history.

By the late 1960s financial strains on the Catholic school system were evident. In 1970 The St. Louis Globe Democrat reported that in the previous nine years 25 Catholic schools had closed or consolidated. Decreasing vocations, escalating costs and the lack of state aid made it increasingly difficult to keep Catholic schools financially viable. Msgr. James Curtin, superintendent of the St. Louis Catholic schools, told the paper “The private schools must stay in existence” and noted that he remained confident that state assistance would become available. Enrollment may have been dropping but for school year 1968-69 there were 173, 980 nonpublic students statewide, 70,000 more than today. This represented a sizable constituency that could take up Msgr. Curtin’s call for fair treatment of nonpublic school children.

The MCC responded to the needs of Catholic schools and families. In 1972, the MCC obtained passage of SB 638, sponsored by State Senator Lawrence Lee (D-St. Louis County), authorizing the lending of secular textbooks to private school students. Passing the bill required some wily and tough lobbying. Initially, the bill was referred to the Senate Education Committee, a sure death warrant for any bill proposing help for private school students. But the MCC managed to have the bill re-referred to a friendlier committee, which promptly reported it to the full Senate. The legislature eventually passed the textbook measure and on May 18, 1972 Governor Warren Hearnes signed it.

Catholic school students began receiving their textbooks in the fall of 1972, but already the new law was being contested in court. Frank Sussman, who would later represent Planned Parenthood in various abortion cases, argued on behalf of the St. Louis Ethical Society that the textbook law violated the Missouri Constitution. The MCC’s Louis C. DeFeo defended the law in the St. Louis Circuit Court. He had sought to craft the legislation so that it would withstand constitutional objections. The circuit court upheld the law but in 1974 the Missouri Supreme Court struck the statute down. The decision in Paster v. Tussey, 512 S.W.2nd 97 (Mo.1974) appeared to foreclose the possibility of fashioning any measure that would ensure just treatment of private school students.

The decision was devastating to the friends of private education, but the MCC refused to accept defeat. In 1976 the MCC launched the Fairness in Education campaign – an effort to amend the state constitution so that private school children could receive secular textbooks and transportation. Special education services were also proposed for children with disabilities attending private schools. Realizing there would be strong opposition in rural areas not familiar with private education, the MCC convinced Governor Christopher “Kit” Bond to place the proposal on the August primary ballot rather than the ballot for the November general election.
The campaign was a bruising affair, which some of the news media characterized as a religious conflict between Catholics and Protestants. Baptist churches spent $50,000 to defeat the measure. Dr. Arthur C. Fullbright, minister of First Methodist Church in Sikeston, Missouri, urged Scottish Rite Masons to defeat the proposal. He reminded the Masons, “The Roman Catholic Church schools, representing 90 percent of children enrolled in such schools, exist for the dominant purpose of church indoctrination.” The proposed constitutional amendment went down to crushing defeat on August 3. Fifty-seven percent of the voters rejected it. Post-election analysis centered on the big rural voter turnout, driven largely by the strong support for the candidacy of Jerry Litton for the U.S. Senate, whose plane crashed election night, killing him and all aboard. It seemed that any hopes for private school children were also buried for the conceivable future.

Happier results occurred through successful MCC litigation on behalf of the rights of private school children in federal education programs. Following the passage of the Elementary and Secondary Education Act in 1965, the Missouri Department of Elementary and Secondary Education (DESE) refused to offer private school children the services they were entitled to under federal law. DeFeo teamed up with diocesan attorney Tom Sullivan from the Diocese of Kansas City-St. Joseph to contest this issue all the way to the U.S. Supreme Court. This legal effort met with resistance all along the way. Cardinal John Kroll, Archbishop of Philadelphia, tried to dissuade Bishop McAuliffe from pursuing the matter. The federal district court ruled against the private school children. When Sullivan and DeFeo dined with several Washington D.C. attorneys the night before the scheduled oral arguments in the United States Supreme Court, they were treated like country hicks and reminded not to refer to the men in black as “your honor” but “Mister Justice.”

On June 10, 1974 the U.S. Supreme Court handed down their decision in Wheeler v. Barrera, 417 U.S.402 (1974). The court ruled that the state of Missouri would have to provide private school children with services that were comparable to those already provided to public school children. The rights of the Barrera children, along with Mexican and black children attending Catholic schools in Kansas City and eligible nonpublic school students throughout Missouri, had finally been upheld by the highest court in the land. Tom Sullivan took special satisfaction in the ruling. In his law office he framed the opening lines of Justice William Douglas’s dissent to the Court’s majority opinion: “The case comes to us in attractive posture…and I fear the judiciary has been seduced.”

But Missouri’s Commissioner of Education, Dr. Arthur Mallory, had one more card to play. The U.S. Supreme Court had refused to overturn any of the Missouri constitution’s restrictions on aiding religious schools and had left to the state of Missouri the details of how to implement comparable services. Mallory sought and won a declaratory judgment from the Missouri Supreme Court that once federal education funds entered the state treasury they became “state funds” subject to all of the state constitutional restrictions concerning church and state relations. The Missouri Supreme Court then concluded that the Title I services could not be provided on the premises of private schools. It seemed that the victory at the U.S. Supreme Court had little meaning.

But while these legal battles were going on, the MCC joined with the United States Catholic Conference in seeking a federal bypass whereby the federal government would hire a private contractor to deliver the ESEA services to private school students. The MCC documented inequities experienced by private school children and in 1976 the acting U.S. Commissioner of Education, William Pierce, invoked a bypass in four public school districts in Missouri – St. Louis, Kansas City, Jefferson City and St. Joseph. This marked the first bypass invoked in the nation. Over the next few years more bypasses would be invoked until most of Missouri’s larger public school districts were relieved of their duty to provide Title I services to private school children in favor of a private contractor hired by the federal government. For a number of years the federal contractor, Blue Hills Home Corporation of Kansas City, had to deliver the services to private school children in vans parked off the premises of private schools. But the U.S. Supreme Court decision in Agostini v. Felton finally permitted the teachers to enter the private schools and provide remedial services to eligible students.

The above is excerpted from A Short History of the Missouri Catholic Conference: 1967 - 2007 by Mike Hoey. Mr. Hoey is the Assistant Director of the Missouri Catholic Conference and has been with the MCC since 1979. He is the author of “Missouri Education at the Crossroads: The Phelan Miscalculation and the Education Amendment of 1870,” Missouri Historical Review, Volume XCV, Number 4 (July 2001).