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Supreme Court To Weigh Church-State Issues Anew

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WASHINGTON--The U.S. Supreme Court will hear arguments next week in two important cases involving a subject that has garnered much of the Justices' attention in recent years--religion and the public schools.

In a case from Arizona, the High Court will consider whether it is an unconstitutional government establishment of religion for a public school district to provide a sign-language interpreter for a deaf child attending a Roman Catholic high school.

In the second case, the Court will determine whether a New York State school district violated the free-speech rights of a religious group by denying it permission to use school facilities after hours while allowing all kinds of other community groups to use them.

Both cases--which are being watched closely by school districts nationwide--will be argued before the Court on Feb. 24.

While the issues to be examined in the cases to be argued next week are not as widespread or contentious as those posed in graduation-prayer cases, there is potentially much more at stake in the two new cases than the narrow questions at hand.

Review of Precedents Urged

In the case involving the sign-language interpreter, Zobrest v. Catalina Foothills School District (Case No. 92-94), numerous education associations, church denominations, religious-liberty groups, and others have taken sides and offered arguments in anticipation of a High Court ruling that could reshape major areas of church-state law.

"This case provides the Court with the opportunity to restore commmon sense to the religion clauses of the First Amendment,'' said Steven T. McFarland, the director of the Center for Law and Religious Freedom of the Christian Legal Society.

The center has filed a friend-of-the-court brief calling for a broad re-examination of church-state precedents to allow greater accommodation of religion in civic life.

Religious-liberties groups had hoped that the High Court would use last term's Rhode Island graduation-prayer case to overturn a 1971 precedent that set a strict test for determining whether a law or government program is an unconstitutional government establishment of religion. They were disappointed.

In that case, Lee v. Weisman, the High Court ruled 5 to 4 last June that a school-sponsored prayer at a graduation ceremony was impermissible because it compelled religious conformity among students as "the price for attending their own graduation.''

However, the Court decided the prayer case without invoking the three-part analysis from the 1971 case Lemon v. Kurtzman, and the Justices declined to re-examine that test.

To pass constitutional muster, the so-called Lemon test requires that a challenged law or program must have a secular legislative purpose, must have a primary effect that neither advances nor inhibits religion, and must not create an excessive entanglement between government and religion.

Several Justices and many judges have criticized the Lemon test, which has had an impact on hundreds of federal and state education laws and programs, as confusing and unworkable. At least four Justices are on record as wanting to scrap the test in favor of some other standard that would generally allow a greater accommodation of religion in civic affairs.

Interpreter Case

The Arizona case involves James Zobrest, a deaf student who lives in the Catalina Foothills school district near Tucson. According to his lawyers, Mr. Zobrest attended a state school for deaf children through the elementary grades, then transferred to a public middle school in the Catalina Foothills district.

When it came time for him to attend high school, his parents said their religious convictions required that he attend a Catholic school. Officials of the Catalina Foothills district even helped him apply to Salpointe Catholic High School, a Carmelite-run institution in Tucson.

Under the Individuals with Disabilities Eduation Act, the main federal special-education law, districts are required to provide special-education and related services to private school students with disabilities who live within their boundaries.

Federal regulations say students in private religious schools have the same eligibility for special-education services as those in nonsectarian schools, as long as no federal funds are used for religious "worship, instruction, or proselytization.''

The Zobrests requested that the district continue to provide their son with a sign-language interpreter when he entered the Catholic school in the fall of 1988. The district balked and sought a legal opinion from state officials.

The district said that, under the IDEA, it could provide Mr. Zobrest an interpreter at any public high school in the state or at a nonsectarian private school. But it was uncertain whether it was constitutional to have the interpreter accompany him at Salpointe. Like most Catholic schools, religious instruction pervades the curriculum at Salpointe, and religion classes are required.

Reimbursement Sought

Both a county attorney and the Arizona attorney general's office issued opinions stating that the district could not provide the interpreter at the Catholic school because it would violate the establishment clause of the First Amendment. The Zobrests then sued the district in federal court.

A federal judge dismissed their suit, and the Zobrests appealed to the U.S. Court of Appeals for the Ninth Circuit.

While that court considered the appeal, the Zobrests paid more than $7,000 a year for an interpreter for their son while he attended Salpointe. He also attended speech-therapy sessions provided by the school district.

James Zobrest graduated last May, shortly after the appeals court ruled against him and his parents. (The Zobrests now seek reimbursement of the costs of the interpreter they hired, plus legal fees.)

A divided appeals-court panel said the presence of the interpreter in the religious-school classroom would impermissibly advance religion in violation of the second prong of the Lemon test.

The two-judge majority opinion by Circuit Judge Betty B. Fletcher said the application of the IDEA in this way would create a "symbolic union'' between church and state of the type the Supreme Court found unacceptable in a 1985 case, School District of Grand Rapids v. Ball, which involved public school employees who taught on the grounds of private sectarian schools.

Circuit Judge Thomas Tang dissented, saying that the High Court upheld similar programs for "general educational welfare'' in Mueller v. Allen, which involved a Minnesota tax-deduction program for private education, and Witters v. Washington Department of Services for the Blind, which said that an award of special-education aid to a blind student who sought to use it to study for the ministry did not violate the establishment clause.

Case Appealed to High Court

The Zobrests appealed their case to the Supreme Court, which granted review last fall.

They argue not only that the establishment clause should not bar the sign-language interpreter, but that their right to a free exercise of religion was burdened by the denial of the services.

The presence of the interpreter should not be construed as the public school district placing an educator in a religious classroom, the Zobrests argue, since the interpreter should have no role as a teacher or editor of the ideas he or she is interpreting. The interpreter is virtually the human equivalent of a hearing aid, the supporters of the Zobrests argue.

But the school district argues that the interpreter is akin to a benefit, like a tape recorder or a film projector, that a religious school could easily convert to sectarian use. The High Court has banned such benefits, but upheld the public provision of secular textbooks to religious-school students.

"From our perspective, the interpreter is provided specifically and solely for religious educational purposes, and that doesn't square with the establishment clause,'' John Richardson, the lawyer for the district, said.

Neither the Zobrests nor the U.S. Education Department, which is backing their side before the High Court, seems interested in seeing the case used to make major modifications in church-state precedents.

William Bentley Ball, a lawyer from Harrisburg, Pa., who is representing the Zobrests, said the case can be decided "well within the confines of Lemon.''

The federal government's brief, signed by the Education and Justice departments and submitted while President Bush was still in office, only suggests briefly in a footnote that the Lemon precedent be re-examined.

That is in sharp contrast to the Bush Administration's stance in last year's graduation-prayer case, in which it directly asked the High Court to reconsider Lemon.

'A Foot in the Door?'

Other interested groups, however, are seeking a more sweeping ruling, and they have expressed their views through numerous friend-of-the-court briefs.

A brief filed by the Christian Legal Society and other groups asks the Court to reconsider Lemon "to produce an approach to the establishment clause that is not at war with the free-exercise clause.''

Other groups supporting the Zobrests include the U.S. Catholic Conference and the Institute for Justice, a Washington-based organization that has pushed for vouchers for private education.

"The implications of this case go far beyond education for disabled children and encompass almost any kind of school-choice program,'' said Clint Bolick, the vice president of the institute. "A court ruling upholding the aid in this case would clear the way for vouchers and other types of aid that would extend to religious-school students.''

That is the fear of such other groups as the American Civil Liberties Union, the American Jewish Congress, Americans United for Separation of Church and State, the National School Boards Association, and the National Association of Secondary School Principals that have filed or joined briefs in support of the Catalina Foothills school district.

"We are concerned that this could be a foot in the door for broad-based public aid for religious schools,'' Joseph Conn, a spokesman for Americans United, said.

Rental of School Space

The case from Long Island, N.Y., over the rental of school facilities has drawn less attention, but is seen as possibly yielding a significant ruling.

"I think this is a much more important case than Zobrest, more as a free-speech case than a church-state issue,'' Douglas Laycock, a law professor at the University of Texas and an expert on church-state law, said of Lamb's Chapel v. Center Moriches Union Free School District (No. 91-2024).

"They could use the case to try to get agreement on public-forum doctrine,'' he added.

The case began in 1988 when John Steigerwald, the pastor of an evangelical Christian church known as Lamb's Chapel, applied to use a school auditorium in the Center Moriches district to show a film series called "Turn Your Heart Toward Home,'' featuring James Dobson, the president of Focus on the Family.

The film series was to be shown free to the public one evening a week for five weeks. (The case does not involve any proposed religious uses of school facilities during regular school hours or when students would be present.)

The district's business manager replied to Mr. Steigerwald that the film series "does appear to be church-related and, therefore, your request must be refused.''

The district relied on its own rules that forbid use of school facilities for religious purposes as well as a state law that prescribes only limited after-hours uses for schools and does not mention religious purposes.

The district did open up its facilities to a wide variety of other uses, including rentals by the local humane society, a Cub Scout pack, the parent-teachers association, the Veterans of Foreign Wars, and even some groups with apparent religious overtones, such as the Salvation Army and the Southern Harmonize Gospel Singers.

Free-Speech Issues Argued

The church sued the district in federal court in 1990, seeking an injunction to use school facilities. A judge granted summary judgment in favor of the district, saying the district had created a "limited public forum'' and that it could legitimately exclude religious uses from the forum.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously affirmed the judge. Lamb's Chapel appealed to the Supreme Court, which granted review of the case in October.

Since then, not only have numerous religious groups sided with Lamb's Chapel, but so have many groups that frequently call for strict separation of church and state.

"From a free-speech perspective, we are convinced that the decision ... is seriously flawed and should be reversed,'' says a brief filed by the A.C.L.U.., Americans United, People for the American Way, and other groups on behalf of Lamb's Chapel.

The Justice Department has also sided with the group, saying that the case should be controlled by a 1981 ruling in Widmar v. Vincent, in which the High Court struck down a state university's rule barring the religious use of facilities that were otherwise widely available to student groups.

"Having opened its doors as wide as it has, [the Center Moriches district] may not close them just far enough to keep out 'religious' speech,'' the Justice Department's brief states.

A brief by New York State defending its statute contends that the result urged by Lamb's Chapel "would strip the state and localities of control over their public school facilities and allow them but a single choice: prohibit all nonschool use of public school property ... or open those facilities to all applicants, regardless of their intended uses, on a first-come, first-served basis.''

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