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  •   Justices Mull Church-State Teacher Dispute

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, April 16, 1997; Page A06


    The Justice Department, joining New York City school officials, told the Supreme Court yesterday that it should reverse a 1985 ruling barring public school teachers from entering religious schools to give remedial help to needy children.

    While it appeared that a majority of the justices might be sympathetic to the merits of that argument, some expressed skepticism that they could use the New York case that prompted the original ruling – up again before the court – to reverse the controversial decision. The case, which could help define the boundaries of state involvement in parochial schools, has been closely watched by educators and religious groups nationwide.

    Solicitor General Walter E. Dellinger said the 12-year-old ruling "imposes burdens that critically impair" a federal program that provides remedial aid to all needy students, including those who go to church-sponsored schools. Because of that decision, known as Aguilar v. Felton, parochial students must attend federally financed remedial classes in buses and other mobile units parked on public streets near their private school property.

    Paul A. Crotty, corporation counsel for New York City, told the justices that "schoolchildren who are poor and disadvantaged are not getting the educational help they need." He said the buses to which they have been relegated are noisy, cramped and have no bathrooms.

    In the original ruling, the court said the "symbolic union of church and state inherent" in allowing public school teachers in religious school buildings "threatens to convey a message of state support for religion."

    Dellinger acknowledged that the high court has forbidden public school teachers from providing broad-scale remedial classes to students in parochial schools. But in the current case, he said, the services offered are provided to a discrete group of disadvantaged students, do not supplant any regular daily education and are completely secular.

    "I don't see how we draw the line," asserted Justice David H. Souter. In response, Dellinger said the program at issue, known as Title I of federal education law, specifically serves low-income, educationally deprived students.

    Justice Ruth Bader Ginsburg observed that the court might not even be able to assess the merits of the government's case. "You have to get your foot properly in the door," she said.

    This was a reference to the request by New York officials that the justices use a seldom-invoked federal rule allowing them to reconsider their own prior ruling. The city wants to be freed of orders that prevent public teachers from entering parochial schools.

    Five of the current justices have criticized the 1985 ruling, suggesting it is much stricter than necessary to protect religious liberty: Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

    But the tradition-bound high court seemed uncomfortable yesterday with the idea of using a rare procedure to reverse itself.

    Stanley Geller, representing New York taxpayers, argued that Aguilar is still good law and said the legitimacy of the court stems from its adherence to past rules. The new case is Agostini v. Felton.

    © Copyright 1997 The Washington Post Company

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