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High Court Declines To Review Ruling Striking District's Pre-Game Prayers

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Washington--The U.S. Supreme Court last week passed up its first opportunity in three years to rule squarely on the issue of prayer in public schools.

Without comment--and without recorded dissent--the Justices declined to review a January appellate ruling that a Georgia school district's tradition of holding prayers before high-school football games violates the establishment clause of the First Amendment.

The decision not to review Douglas County School District v. Jager (Case No. 88-1610) is significant because the case presented the Court with its first chance to reassess its position on school prayer since the addition of Associate Justice Anthony M. Kennedy to the bench in 1988.

Justice Kennedy, who is considered a conservative jurist, replaced Lewis F. Powell Jr., a moderate who frequently cast the swing vote in the Court's church-state cases. Legal scholars have suggested that Justice Kennedy and Associate Justice Antonin Scalia, who joined the Court in 1986, might tip the balance on the bench in favor of relaxing legal restrictions on prayer and other religious observances in public schools.

The Court is expected to rule shortly in a case involving the placement of Christian and Jewish religious symbols in the Pittsburgh city hall and airport during the Christmas holiday season. The decision in that lawsuit could possibly affect church-state relations in schools.

Other Recent Cases

The last time the Justices revisited the school-prayer issue was in 1986, when they heard arguments in a case involving a "moment of silence" law in New Jersey. The Court dismissed that suit on a technicality.

A year earlier, it declined to review an appellate court's decision striking down an Alabama law that authorized organized, spoken prayers in schools.

None of the Court's members indicated that they disagreed with the decision not to hear the Jager case. It takes four votes to accept a case for argument.

Occasionally, justices who disagree with a decision not to hear a case either simply note their dissent or write brief opinions outlining their arguments on why the suit should have been accepted.

The decision not to upset the appellate ruling in Jager also is timely because it comes as school administrators may be considering whether to include prayers in their upcoming graduation events. From a legal viewpoint, the prayers held before games in Douglas County roughly parallel the practice of including invocations or benedictions in commencement ceremonies.

Case Background

The Jager case began in 1985 when Doug Jager, a high-school band member of Native American descent, wrote to his principal objecting to the school district's decades-old practice of inviting Protestant ministers to deliver invocations prior to football games.

After a series of meetings involving lawyers, school officials, and clergy, district officials adopted an "equal access" plan that allowed the student government to select people to give invocations from a pool of nominees suggested by students, parents, and staff members. The Jagers objected to this alternative and filed suit in federal court.

A federal district judge ruled that the district's original practice violated the First Amendment, but also held that the equal-access plan was constitutional on its face. Last January, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit held that both practices were unconstitutional.

In papers filed with the Court, the Douglas County district argued that its prayer practice was permissible under a High Court ruling in 1983 that upheld the Nebraska legislature's hiring of a chaplain who opens each day's session with a prayer.

School-Lands Case

In other action last week, the Court ruled that the state of Arizona must change the way it calculates the price of leases for the extraction of minerals from certain school lands, a decision that could pump additional funding into the state's school-aid budget. The suit, Asarco Inc. v. Kadish (No. 87-1661), was filed by the Arizona Education Association and a group of individual taxpayers.

The Congress granted Arizona millions of acres of school lands when it passed the New Mexico-Arizona Enabling Act of 1910. Under the terms of the act, the state could lease or sell its school lands only if it complied with conditions regarding appraisal, advertising, and competitive bidding.

After the Congress amended the enabling act in 1927, the Arizona legislature passed measures setting a uniform royalty of 5 percent of net value for minerals extracted from school lands.

The union and the taxpayers argued that the royalty procedure did not comply with the original terms of the enabling act. Companies that were allowed to intervene in the case after the state dropped out of it argued unsuccessfully that the 1927 amendment allowed the state tothe lands without complying with the original restrictions.

Associate Justice Sandra Day O'Connor, a former Arizona state legislator and judge, did not participate in the case.

David S. Baron, a lawyer for the aea and the taxpayers, said in a statement that the ruling "will mean millions of additional dollars each year for Arizona schools."

Mr. Baron said that under the current leasing procedure, some firms have paid no royalties to the state even though they have mined millions of dollars worth of copper and other minerals from school lands.

"This decision tells the legislature in no uncertain terms that it can no longer give away our school-trust lands and minerals to special interests," he said. "The state must obtain the highest and best price so as to maximize the benefits for our public schools."

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