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Equal-Access Suit, Desegregation Cases Top Court Calendar

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Washington--The U.S. Supreme Court opens its 1989-90 session this week with a docket featuring a case that could open schoolhouse doors to religiously oriented student groups, and two cases that test the limits of federal courts' authority to enforce desegregation orders.

But most public attention during the term is expected to focus on a series of abortion cases, including two that offer conflicting rulings on the constitutionality of state laws requiring parental notification before abortions can be performed on minors.

States affected by the Court's ruling this spring mandating equal tax treatment for federal, state, and local pensioners will be closely watching two cases that could determine whether they must provide retroactive tax refunds to federal retirees. An adverse decision could cost the states billions of dollars and pressure them to trim their education budgets.

The most widely watched education case before the Court, Board of Education of the Westside Community Schools v. Mergens (Case No. 88-1957), challenges the constitutionality of the federal Equal Access Act. The 1984 law prohibits federally funded secondary schools from discriminating against student groups on the basis of the content of their speech, including religion.

The lawsuit was filed by students at a Nebraska high school who were denied permission to form a nondenominational Christian Bible club at the school.

School officials who denied the request cited a district policy barring clubs that advocate a particular religious or political viewpoint.

A federal district judge upheld the policy, but the U.S. Court of Appeals for the Eighth Circuit reversed that decision last February. The appellate court held that because the school district had created a "limited public forum" by allowing groups such as a chess club to meet on school grounds, it was required to allow similar access to the Bible group.

Lawyers for district argue in papers filed with the High Court that the Equal Access Act is unconstitutional because it was enacted with an intent to promote religion and creates an appearance of state-sanctioned religious activity.

The district also argues that the Eighth Circuit judges erred in ruling that clubs such as the chess club are sufficently "noncurricular-related" to trigger the provisions of equal-access law.

In a brief filed in support of the district, the National School Boards Association contends that the law "removes the discretion of school districts to make decisions about the types of clubs they wish to sponsor."

Legal experts say the Court may decide to hear arguments in Mergens in tandem with a similar case, Garnett v. Renton School District No. 63, in which the U.S. Court of Appeals for the Ninth Circuit ruled that school officials need not provide access to a student religious group. The Justices have yet to decide whether to accept the Garnett case.

On another issue that could affect school officials, the Justices were scheduled to hear arguments Oct. 3 in three cases that challenge a federal judge's authority to levy fines against elected officials who refused to enact legislation to comply with a court-ordered desegregation plan.

The cases, Spallone v. United States (No. 88-854), Chema v. United States (No. 88-856), and Longo v. United States (No. 88-870), involve claims by four Yonkers, N.Y., city councilmen that a federal judge violated their First Amendment right of free speech when he cited them with contempt for refusing to adopt zoning changes necessary to implement a court-ordered housing integration plan. The judge levied fines of $500 a day against the councilmen until they obeyed the order.

The councilmen also argue that "legislative immunity" prevents8them from being held personally responsible for actions taken in their official capacity.

The citations arose in the only lawsuit to date to prove illegal discrimination in both housing and education. The Yonkers school board began implementing a court-ordered desegregation plan in 1985, but the city council resisted implementing a housing-desegregation plan until 1987, when the contempt citations were issued.

Lawyers for the United States argue in papers filed with the Court that the citations and fines were necessary to force the city council to remedy a constitutional violation.

Another case that tests the federal judiciary's ability to enforce desegregation orders will be heard on Oct. 30. In Missouri v. Jenkins (No. 88-1150), the Justices have been asked to consider whether a federal judge can order a tax increase to fund a school-desegregation plan.

Lawyers for the state of Missouri and a group of taxpayers that has intervened in the case argue that a federal judge overstepped his powers when he ordered a 1.95-mill property-tax increase in Kansas City to fund the district's share of a comprehensive desegregation plan.

Federal courts have "no influence over either the sword or the purse," lawyers for the state, quoting from the Federalist Papers, argue in their brief in the case.

The National Governors' Association, the National Conference of State Legislatures, the National League of Cities, and the National Association of Counties have filed a friend-of-the-court brief urging that the tax increase be struck down.

U.S. District Judge Russell G. Clark ordered the property-tax increase and imposition of an income tax in 1987 after Kansas City voters repeatedly rejected requests for tax hikes to help implement the plan. The U.S. Court of Appeals for the Eighth Circuit upheld the property-tax increase, but struck down the income-tax mandate.

Kansas City school officials and black plaintiffs, while nominally on opposite sides of the case, have filed a joint brief arguing that the tax increase was ordered only after the lower courts had exhausted all available means of funding the desegregation plan.

The Court will also consider whether states must provide taxpayers with refunds for taxes later found to be unconstitutional. The question has been posed in two cases, McKesson Corporation v. Division of Alcoholic Beverages (No. 88-192) and American Trucking Association v. Smith (No. 88-325).

An adverse ruling could add considerably to the budget difficulties faced by 19 states that are affected by the Court's March 28 ruling in another case, Davis v. Michigan Department of Treasury.

In Davis, the Court struck down a Michigan law that exempted retired state and local employees from paying state income tax on their pension benefits, without offering a similar exemption to federal workers. (See Education Week, April 26, 1989.)

States that are struggling to cope with the loss of revenue caused by the Davis ruling could find their budget situations considerably worsened if the Court indicates in McKesson and American Trucking Association that they are required to refund the estimated $2.5 billion in taxes collected from federal retirees who were unfairly taxed.

On one of the thorniest issues to be heard this term, the Court faces conflicting appeals-court rulings in two cases that test the constitutionality of laws that require doctors to notify parents before performing abortions on teenagers.

In Ohio v. Akron Center for Reproductive Health (No. 88-805), state officials are challenging a ruling by the U.S. Court of Appeals for the Sixth Circuit that found Ohio's 1985 parental-notification statute unconstitutional.

The U.S. Court of Appeals for the Eighth Circuit upheld a similar law in Minnesota, a decision that is being appealed by health professionals and the American Civil Liberites Union in Hodgson v. Minnesota (No. 88-1125).

The Minnesota law requires that both parents of a pregnant minor be notified at least 48 hours before an abortion is performed, but allows minors to seek a judicial bypass of the notification requirement in individual cases.

A separate provision of the law that required notification but did not provide for a "judicial bypass" was struck down by the Eighth Circuit.

The state of Minnesota has filed a separate appeal, Minnesota v. Hodgson (No. 88-1309), asking the court to uphold the original notification law, which did not include the judicial-bypass provision.

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