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  • Supreme Court Report

  •   Church and State: A Moving Line

    The Washington Post
    Tuesday, June 24, 1997; Page A14


    For 12 years the New York City Board of Education has been bound by a federal court injunction prohibiting the sending of teachers into parochial schools to provide guidance and remedial instruction to low-income, at-risk children. Federal funds are authorized by statute for this purpose, but in 1985 the Supreme Court ruled that providing the service inside a religious school violates the First Amendment's establishment clause. After the ruling, city officials continued to assign teachers to this work, but they have had to work through computers or operate out of public schools, leased property or mobile units such as vans. Since the 1986-87 school year, the restriction has cost the city more than $100 million, which comes out of the available education act funds.

    Yesterday the Supreme Court lifted the injunction and acknowledged that the 1985 ruling was no longer good law. The rationale given for this break with precedent is that the law, in the form of intervening Supreme Court decisions, had changed and that the standard for assessing the constitutionality of church-state arrangements of this kind is not the same as it was 12 years ago. Justice O'Connor, writing for herself and four colleagues, cited recent cases approving, for example, the use of state funds to provide a sign language interpreter for a deaf parochial school student, and another allowing a vocational tuition grant to a blind student studying for the ministry. From this, the leap to funding the teaching of general subjects on the premises of religious schools was made.

    This new standard is exceptionally broad and leaves open the possibility that public funds could be used to teach any number of subjects in church-affiliated schools just as long as religion isn't one of them. There's no doubt that this would be a substantial subsidy for churches wishing to segregate their children and provide religious training while relying on the taxpayers to fund the lion's share of the educational programs. It is just the kind of church-state connection that infringes the rights of dissenters and nonbelievers, and at the same time threatens the independence of the church.

    There is no doubt that the injunction had caused problems in administering this federal education program. The cost and inconvenience of moving students from one locale to another for remedial instruction was considerable, and the hassle reduced the attractiveness of the program to students and city officials alike. Justice Souter, writing for the majority, said as much, acknowledging that "the object . . . is worthy without doubt, and the cost of compliance is high. In the short run," he continued, "there is much that is genuinely unfortunate about the administration of the scheme under [the injunction]. But constitutional 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." Nevertheless, those lines have been drawn to provide permanent protection for people of all faiths and none, and for every church in this remarkably diverse society. The strength of those lines was weakened and their clarity blurred by yesterday's ruling.

    © Copyright 1997 The Washington Post Company

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