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Church-State Case Will Be Heard By High Court

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Washington--The U.S. Supreme Court last week added another case involving religion and public education to its docket, this time agreeing to decide whether New York City can use federal compensatory-education aid to finance programs in which public-school teachers conduct courses in private religious schools.

The Court last week also turned down an opportunity to re-examine its decision last year barring the use of sex-based mortality tables in the determination of pension benefits. And, in a 6-3 vote, the Justices declined to review a case in which Michigan courts upheld a state "agency-shop" law that allowed the firing of a non-union teacher who refused to pay a service fee in lieu of union dues.

According to lawyers familiar with the New York case, Secretary of Education v. Felton (Case No. 84-238), the Court is expected to accept the advice of the Reagan Administration and schedule the lawsuit for argument in tandem with School District of the City of Grand Rapids v. Ball (No. 83-990), a case on its docket involving the use of state and local funds for a similar program in the Michigan city's private religious schools.

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Supreme Court Agrees To Weigh Use

of Federal Aid in Private Schools

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The New York dispute arose in 1978 when six parents filed suit in federal district court against the city school board alleging that its provision of Title I compensatory-education aid to private-school students had the potential for the unconstitutional entanglement of church and state.

Under the program, Title I funds were used to pay the salaries of public-school teachers conducting courses in private schools and for materials used during those courses. The teachers were under the supervision of field supervisors employed by the school board, and the teaching materials were kept locked in storage closets when not in use.

U.S. District Judge Edward R. Neaher upheld the constitutionality of the program in October 1983, but the U.S. Court of Appeals for the Second Circuit reversed his decision last July. (See Education Week, Aug. 22, 1984.)

In its opinion, the appeals panel said it did not doubt that the program "has done much good," adding that it most likely represented the best way for the school board to carry out Congressional mandates to provide private-school students with Title I aid. Nonetheless, the panel said it was compelled by Court precedents to rule that such programs necessarily violate the Constitution's prohibition against state establishment of religion.

The Reagan Administration encouraged the Justices to accept the case for review last August, stating that the facts of the case "furnish no basis for concluding that New York City's Title I program fosters a constitutionally impermissible degree of entanglement between church and state."

Public-school teachers who conducted courses in private schools "did not further the religious mission of those schools at any time," the Administration argued. "They taught secular subjects and there is no evidence that they ever injected religious material into their classes."

Sex Bias in Pensions

In other action on Oct. 9, the Court declined for the second time in two years to hear arguments in Teachers Insurance and Annuity Association and College Retirement Equities Fund v. Sprit (No. 84-50), a case concerning the use of sex-based actuarial tables in the determination of pension benefits. At issue this time was the question of the point in time at which the nonprofit insurance firm would be required to discontinue paying benefits based on such tables.

The case has been of interest to educators because employees of more than 3,400 schools, colleges, and education organizations participate in tiaa-cref retirement plans.

In July 1983, the Court held in a related case, Arizona Governing Committee v. Norris, that Arizona's public-employee pension system ran afoul of Title VII of the Civil Rights Act of 1964 because it paid smaller periodic pension benefits to female employees than to male employees. (See Education Week, July 27, 1983.)

Justification for Benefits

The state system, as well as tiaa-cref and most other private retirement systems, had justified the payment of smaller periodic benefits to female retirees because women as a group tend to outlive men. Thus, over the course of a lifetime, men and women would tend to receive equal pension benefits, the retirement systems argued.

In Norris, the Court held that after Aug. 1, 1983, contributions made to pension plans would have to be calculated on a sex-neutral basis. It refused to apply its ruling to benefits paid into pension systems prior to that date because to have done so would have been "both unprecedented and manifestly unjust."

On the same day they decided Norris, the Justices ordered the U.S. Court of Appeals for the Second Circuit to rehear the tiaa-cref case. In September 1982, the appeals panel had upheld a lower court's order requiring the insurance company to begin calculating pension benefits on a sex-neutral basis after May 1, 1980.

Retroactivity Allowed

Last May, the appeals court reaffirmed its 1982 ruling, stating that the Aug. 1, 1983, cutoff date set in Norris was not intended "to bar retroactivity in the circumstances of this case."

tiaa-cref unsuccessfully argued that, if allowed to stand, the appeals court's ruling "would devalue every pre-August 1, 1983, contribution made by hundreds of thousands of male participants in the system."

"Norris squarely rejects retroactivity," the insurance company said in papers asking the Court to accept the case. In failing to comply fully with the Court's decision, the appeals court "failed to apply the fundamental teaching of Norris that retroactive relief will not be imposed where inequitable," it said.

'Agency-Shop' Rule

In Jibson v. White Cloud Education Association (No. 83-1816), a divided Court decided not to review rulings by the Michigan Supreme Court and lower state courts that an affiliate of the National Education Association can force a local school board to fire a tenured teacher who refused on First Amendment grounds to pay the union a service fee equivalent to membership dues.

The teacher claimed that he had no guarantee that his service fee would not be used for activities to which he was philosophically opposed. The union successfully argued that payment of such fees is required under the state's public-employee "agency-shop" law.

Associate Justices Harry A. Blackmun, William H. Rehnquist, and John Paul Stevens disagreed with the Court's majority, saying that they would have noted probable jurisdiction and would have scheduled the case for argument.

Last month, the U.S. Court of Appeals for the Seventh Circuit ruled in Hudson v. Chicago Teachers Union that a similar agency-shop agreement between the union and the Chicago Board of Education violated the First and 14th Amendments because it did not set up a grievance procedure for employees who believed their union dues or service fees were being misused. (See Education Week, Sept. 26, 1984.)

A spokesman for the American Federation of Teachers said the union planned to ask the Court to review the Hudson case.

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