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Decision Imminent on Public Aid to Church-Affliliated Schools

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Washington--When the U.S. Supreme Court interprets the First Amendment's admonition against state "establishment of religion," it usually does so in cases involving schools, and those cases generally fall into one of two categories.

This month, the Court decided a case from the first group, holding that an Alabama statute unconstitutionally encouraged public-school students to pray during a state-sanctioned moment of silence at the start of the school day.

Before the month is over, the Justices are expected to decide a pair of lawsuits from the second, and equally controversial, category of cases--those involving public assistance to private schools with a religious orientation.

NEWS ANALYSIS

The Court has been struggling for almost 40 years to determine what forms of public aid to sectarian schools are permissible and has ended up making rather intricate dis-tinctions. Given that record, legal experts and lawyers involved in the cases now before the Court hesitated last week to predict how the Justices would decide the two lawsuits.

"The Court has been splitting hairs rather finely, and it knows it,'' noted Patricia M. Lines, former director of the Law and Education Center at the Education Commission of the States and now a legal consultant to the group. "For example, they've ruled that prerecorded tapes are a permissible form of aid but blank ones are not. Why? Because the blank ones conceivably could be used for religious purposes but the prerecorded ones could not."

In a 1980 opinion in a New York case, Associate Justice Byron R. White candidly acknowledged that such cases "are not easy," stirred "deep feelings" among the Court's members, and typically resulted in interpretations that sacrificed "clarity and predictability for flexibility."

Issues Before Court

The cases before the Court involve the manner in which New York City officials have provided federal aid to educationally disadvantaged private-school students, and a similar program in Grand Rapids, Mich., that is financed from state and local sources.

In the first set of cases--Aguilar v. Felton (Case No. 84-237), Bennett v. Felton (No. 83-238), and Chancellor of the Board of Education of the City of New York v. Felton (No. 83-239)--a federal appeals court ruled last July that the New York City school district's method of distributing federal Chapter 1 aid to students in church-affiliated schools ran afoul of the First Amendment. (See Education Week, Aug. 22, 1984.)

Under the system, public-school teachers offered instruction to private-school students in the students' own school buildings. Rooms in which such classes were held were stripped of religious items, instructional materials were kept separate from those of the schools, and teachers were admonished not to discuss religious matters.

The second case, School District of Grand Rapids v. Ball (No. 83-990), involved similar remedial and enrichment courses for private-school students in the Michigan school district. The so-called shared-time classes, also ruled unconstitutional by a federal appeals court, were taught by public-school teachers in classrooms leased by the school district from the private schools. (See Education Week, Aug. 25, 1982.)

Three-Part Test

In both cases, the appeals courts' decisions were based on applications of a three-part test outlined by the Court in its 1971 decision in Lemon v. Kurtzman. Under the test, government activity concerning religion is permissible if it has a "clearly" secular legislative purpose; if its primary effect neither advances nor inhibits religion; and if it does not foster "excessive entanglement" with religion.

Decisions in recent years suggested that the Court was prepared to abandon the so-called Lemon test in favor of a new standard that would shift the balance in such cases toward greater government accommodation of religion. But in their ruling in the Alabama moment-of-silence case, Wallace v. Jaffree, five of the nine Justices gave the test their strong endorsement and a sixth, Sandra Day O'Connor, said she was not prepared to "abandon" it. (See Education Week, June 12, 1985.)

In a concurring opinion in the case, Associate Justice Lewis F. Powell Jr. said the Lemon test has "proven useful in analyzing case after case," adding that it is "the only coherent test a majority of the Court has ever adopted."

Associate Justice O'Connor noted in a separate concurring opinion that although the test has proven to be "problematic," it should not be abandoned but rather "re-examined and refined."

She suggested that in the future the Court should apply the test with an eye toward determining whether the government activity in question is motivated by a desire to "endorse" a particular religious belief over others or over nonbelief.

Decision Applauded

Lawyers representing the citizens who challenged the constitutionality of the New York and Michigan funding schemes said they saw the Justices' reaffirmation of the Lemon test as a good sign.

"Lawyers are always frightened when courts change their interpretations of the law or methods by which they arrive at decisions," noted Albert Dilley, a lawyer for the parties challenging the Grand Rapids shared-time program. "It would have been difficult for lawyers in this field to predict court decisions if the test had been rejected. So for them to retain it now and all the precedents supporting it is good."

As might be expected, the decision was criticized by legal experts who support a reading of the First Amendment more favorable to religious practice.

"My only reaction is that a majority of the Court has held tenaciously to a view of the establishment clause that is historically incorrect," said William B. Ball, an authority on constitutional law who has argued several cases before the Court on behalf of religious groups.

Mr. Ball, a senior partner in a Harrisburg, Pa., law firm, said the majority's position in the Alabama case "would seem to cast doubt on whether the programs in question will be upheld."

"However, in spite of what I just said, I don't think you'll have a unanimous opinion on the part of the six Justices who voted against the prayer practice," he continued. "I'd say there's a fair chance that the New York program will be upheld, and probably also the Grand Rapids program."

Swing Votes

There has been much speculation among court observers as to how the individual Justices will vote to decide the two cases.

Judging by their past records in such cases and their recent votes in the Alabama case, most observers anticipate that three of the Justices--Chief Justice Warren E. Burger and Associate Justices White and William H. Rehnquist--will vote to uphold the funding schemes.

Analyses of the voting records of Associate Justices Harry A. Blackmun, William J. Brennan Jr., Thurgood Marshall, and John Paul Stevens point to virtually certain votes against the practices.

Thus, according to this line of analysis, the deciding votes very likely belong to Associate Justices O'Connor and Powell.

O'Connor and Powell

Justice O'Connor, the Court's junior member, has written little in the area. She joined with the majority in the Court's 5-4 decision in 1983 upholding the Minnesota law that provides tax deductions to parents for private- and public-school expenses. But she also joined with the majority earlier this month in striking down the Alabama moment-of-silence statute.

In her concurring opinion in the prayer case, she noted: "A statute that ostensibly promotes a secular interest often has an incidental or even a primary effect of helping or hindering a sectarian belief. Chaos would ensue if every such statute were invalid under the establishment clause."

In 1973, Justice Powell wrote the majority opinion in a case striking down a New York law that provided state reimbursement for private-school tuition. On the other hand, he joined with the majority in subsequent decisions permitting state textbook loans to private-school students and state reimbursement to private schools for certain testing and recordkeeping expenses.

Two terms ago, Justice Powell provided the crucial fifth vote to uphold the Minnesota tuition tax-deduction law. But earlier this month, he joined with the majority in the Alabama case.

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