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  • Supreme Court Report

  •   Church-State Divide Narrowed

    By Joan Biskupic and Laurie Goodstein
    Washington Post Staff Writers
    Tuesday, June 24, 1997; Page A01

    In keeping with its recent trend of lowering the wall between church and state, a narrowly divided Supreme Court ruled yesterday that public school teachers may provide remedial education to students in parochial institutions.

    The court reversed a 12-year-old decision forbidding taxpayer-funded teachers to tutor children in religious schools, provoking dissenting justices to declare that important constitutional lines between church and state had been breached and that the majority was too hasty in reversing its own precedent.

    The decision comes as much of the public and many lawmakers around the country are questioning whether the government would be wise to subsidize religious institutions to address a range of social problems – from housing the homeless and teaching inner-city youth to treating alcoholics and drug addicts.

    Many states and municipalities are already challenging constitutional assumptions by channeling taxpayers' money to churches, synagogues and parochial schools to attack some of those issues. But the question is: To what extent are partnerships between government and religion permissible under the Constitution?

    In the area of education, a narrow, more conservative majority of the Supreme Court in recent years has been enhancing the ability of government – nationally and locally – to provide funds to religious schools and academic programs. The current view is a marked departure from the stricter separationist stance of the court in the 1980s.

    "Interaction between church and state is inevitable," Justice Sandra Day O'Connor wrote for the 5 to 4 majority yesterday, "and we have always tolerated some level of involvement between the two." O'Connor said that what had changed over the years was the court's view of whether particular public aid to religion had "an impermissible effect," for example, requiring a government to get excessively involved in the workings of a church institution.

    But while O'Connor emphasized the narrow scope of the court's decision, focused on a federal program that provides funds for remedial education nationwide, some religious leaders immediately declared that it could help their effort to get government to pay for vouchers that could be used by parents to send their children to religious schools.

    "This decision confirms that vouchers can be constitutional," said Mark Chopko, general counsel to the United States Catholic Conference, so long as those programs are carefully designed, religiously neutral and beneficial to all parents. Other religious groups felt the conclusions that would be drawn from the ruling were more limited.

    At issue in yesterday's case is a 1965 federal funding program known as Title I intended to educate all school children who need remedial help, including those in parochial schools.

    The New York City school district's practice was to send public school teachers into parochial schools to offer remedial services during the regular school day. But after six taxpayers challenged the program, the Supreme Court ruled in 1985 that furnishing publicly financed services in religious schools was a violation of the First Amendment's separation of church and state.

    After that 5 to 4 decision, school districts in New York and across the country began fulfilling the requirements of Title I by sending public school teachers to instruct parochial students at alternative sites, usually a van parked outside the religious schools. Federal education officials said that not only was a poor environment for students who needed help but wasted millions of dollars that otherwise could have been spent on more direct academic aid. More than 190,000 parochial school children nationwide receive publicly funded remedial instruction, at a cost of about $40 million a year, much of it spent on the cost of teaching children at an alternative site.

    With the support of the Clinton administration, New York City schools asked the court to free it from the requirements of the court's original 1985 ruling. It noted that a majority of the current justices had in subsequent rulings complained about the 1985 ruling.

    Yesterday, O'Connor said in Agostini v. Felton that it was not enough that the 1985 mandate was costly or that it was criticized by individual justices. What mattered, she said, was that the court had expressly disavowed the notion that the First Amendment absolutely bars the placing of a public employee in a sectarian school. She noted that in a 1993 ruling, the court had allowed a public school teacher to enter a Roman Catholic school as a sign-language interpreter for a deaf student.

    O'Connor said New York City's implementation of Title I "does not result in any governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement" between church and state. Joining her were Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

    In dissent were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Souter, joined by Stevens and Ginsburg, said in a statement, "[C]onstitutional lines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line. But constitutional lines are the price of constitutional government."

    Staff writer Rene Sanchez contributed to this report.

    © Copyright 1997 The Washington Post Company

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