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High Court Rejects School-Prayer Case, Declares Florida Sex-Equity Suit Moot

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Washington--The U.S. Supreme Court last week declined, without comment, to hear a challenge to a lower federal court's ban on the enforcement of a 1981 New Mexico "minute-of-silence" law.

However, the Supreme Court, in refusing to hear the case, did not pass judgment on the New Mexico law.

The New Mexico law authorized school systems to order one minute of silence at the beginning of each school day to be used for "contemplation, meditation, or prayer."

Similar to those enacted in some 20 other states in response to Supreme Court decisions prohibiting organized prayer in public schools, it was declared unconstitutional last February by U.S. District Judge Juan G. Burciaga in the case of Duffy v. Las Cruces Public Schools.

The Las Cruces Board of Education, the defendant in the suit brought by a parent of a student in the school system, declined to appeal the ruling.

But Jean Walsh, a local resident who is active in the pro-prayer cam-paign but was not a party to the suit, took the case to the U.S. Court of Appeals for the 10th Circuit. She contended that as a taxpayer, she had "standing"--or the legal right--to make the appeal.

She renamed the case State of New Mexico v. Juan G. Burciaga (Case No. 83-9), but the state was not a party to the suit.

In June, the 10th Circuit Court rejected that argument, dismissing Ms. Walsh's appeal for lack of standing. It was the question of standing that Ms. Walsh appealed to the Supreme Court.

The New Mexico law had been modeled on a similar minute-of-silence law in Massachusetts. That law has been upheld in federal appellate court, but another law in New Jersey, which did not use the word "prayer," has been voided by the federal courts. (See Education Week, Nov. 2, 1983.)

Several hours after the Court declined to hear the moment-of-silence case, it was asked to re-evaluate its opposition to officially sanctioned school prayer.

Dan C. Alexander, president of the Mobile County School Board in Alabama last Monday hand-delivered to the Court a request that the Justices review a lower-court ruling that struck down Mobile teachers' longstanding, informal practice of leading their students in prayer.

The practice, not mandated by state or local laws or school-board policy, according to briefs filed by the school board, was challenged by the father of three Mobile students and upheld by U.S. District Judge W. Brevard Hand. In February, however, Associate Justice Lewis F. Powell Jr. of the Supreme Court temporarily blocked the practice, and in May, the U.S. Court of Appeals for the 11th Circuit ruled it unconstitutional.

Mr. Alexander is also president of Save Our Schools, a pro-prayer organization claiming 130,000 members that will file a friend-of-the-court brief in support of the Mobile school board's position in the case, Board of School Commissioners of Mobile County v. Jaffree.

The U.S. Justice Department is also weighing the possibility of filing a brief in support of the Mobile board's position. Last May, in a letter responding to a request from Paul M. Weyrich, president of the conservative Free Congress Research and Education Foundation Attorney General William French Smith wrote: "I am glad that you understand the reasons for our decision not to intervene at the appellate- court level in Jaffree. However, now that this case would be before the Supreme Court, we have begun reviewing the situation anew as to possible participation."

A Justice Department spokesman last week said only that "the department has not yet announced a decision" on whether to file a brief in the case.

The State of Alabama, which is not a party to the Jaffree case, also has asked the Supreme Court to review two May rulings by the 11th Circuit Court concerning a separate school-prayer dispute.

The appellate court struck down a 1982 Alabama law authorizing public-school teachers to lead voluntary recitations of a prayer composed by the son of Forrest H. (Fob) James, a former Alabama governor. It also voided a state law authorizing a period of silence of up to a minute for prayer or meditation. The Supreme Court has not yet announced whether it will hear the case.

On another issue, the Court last week voted 5 to 4 to dismiss as moot a suit seeking to limit the scope of Title IX of the Education Amendments of 1972, which prohibits sex discrimination by recipients of federal funds.

In 1976, the existence of an all-male honor society at the University of Miami in Florida provoked the federal government to threaten a cutoff of all of the university's federal funds.

In response, the university told the Iron Arrow Honor Society that it could no longer conduct functions on campus if it did not admit women. The society sued the government, arguing that Title IX did not require a cutoff of funds to an entire university on the basis of an all-male group that itself did not receive federal funds.

The society lost its suit in lower federal courts and appealed to the Supreme Court. The university, however, told the society that it would not allow the all-male group back on campus, regardless of the outcome of the case. The Court accepted the argument of government lawyers, who contended that the university's move made the case moot because the society would not improve its situation even if it won the case. The case was Iron Arrow v. Bell (No. 83-118).

Soon after the Court returns from its Thanksgiving recess, it will hear oral arguments in another, widely publicized, Title IX case, Grove City College v. Bell (No. 82-792). The Justice Department has filed a friend-of-the-court brief in the case, arguing that Title IX applies only to specific programs that receive federal funds, not to entire institutions.

The Court last week also agreed to hear a case that could affect the number of suits brought against state officials under a widely used federal civil-rights statute.

The Civil Rights Act of 1871, which permits suits for damages against state officials for violations of constitutional rights, does not contain a specific statute of limitations. As a result, federal courts, in deciding if a case has been filed on time, apply the statute of limitations of the analagous law of the state in which officals are being sued. The case accepted by the Court, Burnett v. Grattan (No. 83-264), challenges that practice.

Statute of Limitations

Two white staff members of Coppin State College in Maryland who had been dismissed from their jobs five years earlier sued under Section 1983 of the 1871 civil-rights law for race discrimination. A U.S. district court in Maryland dismissed the suit in 1981 on the grounds that it failed to comply with the state's six-month statute of limitations.

However, the U.S. Court of Appeals for the Fourth Circuit last June reversed the decision, ruling that six months is an insufficient period of time to prepare such a lawsuit.

It set a three-year statute of limitations. The State of Maryland appealed the case to the Supreme Court.

Also last week, the Buffalo Teachers Federation, an affiliate of the National Education Association, filed a request with the Court to review a ruling by the U.S. Court of Appeals for the Second Circuit that the Buffalo schools lay off teachers by race, instead of seniority.

The appellate court this summer said in the case of Arthur v. Nyquist that seniority-based layoffs, though called for in the teachers' contract, "would constitute a serious setback for desegregation of the school system." However, the court also ordered the Buffalo school board to rehire on the basis of seniority.

In challenging the layoff provision of the appellate-court decision, the union in its petition to the Supreme Court writes that the Court should uphold "the seniority and statutory rights of majority teachers who are victims of unconstitutional reverse discrimination and totally innocent of any wrongdoing."

Similar cases are moving through the federal court system. Last May, for example, another appellate court upheld a seniority-based hiring and firing policy for teachers in Kalamazoo in the case of Oliver v. Kalamazoo Board of Education.

Next month, the Supreme Court will hear oral arguments in a case that raises similar issues. In Firefighters Local Union No. 1784 v. Stotts (No 82-206), the Court will consider the authority of a lower federal court to overturn a "last-hired, first-fired" layoff system in Memphis in order to preserve improvements in the racial balance of the city's fire department.

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