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Period of Silence Ruling Unlikely, Justices Indicate

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Washington--Members of the U.S. Supreme Court indicated strongly last week that a technicality would block them from deciding this year whether states can require public schools to begin their day with a moment of silence for private introspection or contemplation.

Well over half of an hour-long hearing in a case testing the constitutionality of New Jersey's 1982 moment-of-silence law focused on the Justices' apparent doubt that two state lawmakers have legal standing to defend the statute in court.

Normally, when the Court decides that it lacks jurisdiction in a suit because it no longer presents a "live" controversy, the lower-court decisions in the case are left intact.

Federal district and appellate courts have ruled that the law--which does not specifically mention prayer--violates the First Amendment's ban on state establishment of religion because the primary motivation of its sponsors was to reinstate prayer in schools.

Educators and state officials have hoped that a ruling by the Court in the New Jersey case, Karcher v. May (Case No. 85-1551), would clarify the status of similarly worded laws in 24 other states.

In a 1985 ruling striking down an Alabama moment-of-silence law that mentioned prayer, a majority of the Justices noted that measures not citing prayer might withstand First Amendment scrutiny.

Rex E. Lee, former U.S. Solicitor General and the lawyer representing the two New Jersey lawmakers, told the Justices that "there's not a nickel's worth of difference" between the state's law and the type of statute that the Court indicated might pass constitutional muster.

But when questioned whether his clients--Assemblyman Alan J. Karcher and Senator Carmen A. Orechio--retained standing to pursue the case, Mr. Lee acknowledged, "That's a close question."

The lawmakers entered the case in the lower courts to defend the law in their respective capacities as speaker of the Assembly and president of the Senate. They both lost their leadership posts shortly before the appeal to the Court was filed, however, and the current leaders have expressed a desire to drop the suit.

Mr. Lee argued that the lawmakers retained their standing in the suit because their professional reputations were on the line. "They have a personal stake in the outcome," he said. "Their reputations, their lives depend upon passing good legislation."

"If there's a way to decide this case, it ought to be done," Mr. Lee continued. "There is something to be said for deciding issues of great national importance when they arise."

Turning to the merits of the case, Mr. Lee contended that the three-part test established by the Court in 1971 for determining the constitutionality of state action regarding religion "squarely vindicates" the New Jersey law.

The act's primary purpose, he said, "is the legitimate pedagogical interest in quieting children down" at the start of the school day. Its secondary purpose, he continued, is to accommodate those students who want to pray.

"It is quite clear that in deciding matters of [legislative] purpose, courts must grant a great deal of deference" to the sponsors of the measure at issue, Mr. Lee added.

Jurisdiction Lacking

Norman L. Cantor, who represented the teachers, parents, and students who challenged the law, argued that the Court "clearly" lacked jurisdiction to decide the matter because "the real party that intervened in this case was the entire legislature" and not the individual lawmakers.

"We urge the Court not to reach out and decide this constitutional issue when the legislature has decided not to contest the court of appeals' decision," he said.

Should the Court decide to retain jurisdiction, he continued, it should overturn the law because there are "considerable indicia" that the sponsors' intent was to return prayer to the schools.

For example, he said, the word "contemplation" in the statute "has clear religious connotations." He also said the decision to mandate that the moment of silence be held at the start of the day was intended "to mimic the traditional time for an opening prayer."

"To tell 3rd graders that they should use their time to meditate or to contemplate means nothing to them," Mr. Cantor said. "What you are really telling them is that it's time for prayer."

In addition, he said there is no need for special legislation to ac4commodate the religious rights of students because there is already "ample opportunity" for private, silent prayer during the school day.

The Justices are expected to hand down their decision in the case by late June.

Transportation Case

In other action in the opening week of its session, the Court agreed to consider whether states can require indigent parents to pay for the cost of their children's transportation to school.

The case, Kadrmas v. Dickinson Public Schools (No. 86-7113), stems from a 1985 North Dakota law that encourages districts in the rural state to close schools and move students to centralized facilities in order to cut costs.

The 263 districts that have "reorganized" since the law was passed are required to provide students with free busing.

The remaining 48 districts are required by law to charge fees for transportation.

The Dickinson district, which chose not to reorganize, requires families to pay their children's transportation fees at the time of registration. The annual fees range from $97 for one student to $315 for a family enrolling five or more children.

Paula Kadrmas, who claimed she could not afford to pay the fee for her one school-age child, filed suit in a county district court charging that the state law and the district's policy denied her daughter equal access to education in violation of the equal-protection clause of the 14th Amendment to the U.S. Constitution. The trial court dismissed her suit, and the state supreme court upheld the ruling in a 2-to-1 decision last March.

Other Action

The High Court also used the first week of its new term to delete hundreds of cases from its docket. Among them:

Jenkins v. Missouri (No. 86-1717) and Kansas City School District v. Missouri (No. 86-1718). The Justices declined requests by the city school board and the parents of black schoolchildren to overturn lower-court rulings relieving 11 suburban districts of liability for segregation in the city district.

Illinois Board of Education v. Board of Education of the City of Peoria (No. 86-2028). The Court declined to review a federal appellate ruling that the state board lacked legal standing under the Illinois education code and the federal Equal Educational Opportunities Act to require the district to remedy alleged racial discrimination in its gifted-and-talented program.

Christ the King Regional High School v. Culvert (No. 86-2058) and Archdiocesan School Office v. Connecticut Commission on Human Rights and Opportunities (No. 87-126). The Court let stand a pair of rulings in cases involving the right of states to enforce fair-labor and anti-discrimination laws against church-affiliated schools. In both cases, lower courts have ruled that the First Amendment does not shield the schools from investigations by state agencies. (See Education Week, Oct. 7, 1987.)

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