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Published in Print: October 6, 1999, as Church-State Issues Could Dominate High Court Term

Church-State Issues Could Dominate High Court Term

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The U.S. Supreme Court term that opens this week could shape up as a pivotal one for issues of separation of church and state.

In one of the most significant cases of the new term, the high court will consider the constitutionality of a federal aid program that reaches religious schools in the form of computers, instructional equipment, and library books. The outcome of the case will have implications for government programs at the local, state, and federal levels that aid students in religious schools.

Meanwhile, the court will have new opportunities to address questions involving private school choice. At some point this fall, the court will consider whether to grant full review to appeals involving Arizona's tuition tax credit for private schools and Maine's refusal to include religious schools in its long-standing "tuitioning" policy, a small-scale voucher program for towns without their own high schools.

Also seeking review are appeals on the constitutionality of student-led prayers before football games and the New York legislature's latest attempt to create a separate school district for the village of Kiryas Joel, a community of Hasidic Jews. The high court in 1994 struck down a Kiryas Joel district as a government establishment of religion.

"Last year was the year for sexual harassment, so it may be that this year is the year for church-state cases," said Julie Underwood, the general counsel of the National School Boards Association.

Without doubt, the case on the court's 1999-2000 docket with the greatest potential impact for public and private schools across the country is Mitchell v. Helms (Case No. 98-1648).

The court will review a federal appeals court ruling that overturned a federal aid program, once known as Chapter 2 and more recently called Title VI, as it is applied in the Jefferson Parish, La., school district.

The U.S. Court of Appeals for the 5th Circuit, based in New Orleans, invalidated the district's use of federal Title VI money to lend computers, instructional equipment, and library books to private schools in the district, a majority of which are Roman Catholic.

Reversal Sought

The Clinton administration has joined Catholic school parents seeking a reversal of that decision. Last spring, the administration told the justices that the 5th Circuit court had "invalidated a form of federal assistance that is highly relevant for private school children, and also central to the effort to bring modern technology to all students."

The administration argues that the high court should, if necessary, reverse two of its precedents from the 1970s that barred the provision of instructional materials other than student textbooks to religious schools.

A majority of justices have been much more sympathetic in recent years to upholding aid programs that benefit children in religious schools. In 1997, the court reversed its own ruling that had barred public school teachers from providing Title I compensatory education to children in religious schools.

The Mitchell case will likely be argued late this fall, with a ruling due by the end of the court's term next June.

As for the rest of its current docket, the court will hear a reargument this week of a nettlesome voting- rights case involving the Bossier Parish, La., school board.

Nearly a decade after the last U.S. Census, the Bossier board is still defending its 1992 electoral districts against efforts by the Department of Justice to force it to create two majority-black voting districts.

The Supreme Court has already issued one ruling in the case, and it heard arguments last spring in a second appeal. The justices ordered the case of Reno v. Bossier Parish School Board (No. 98-405) set for reargument in the new term and asked the parties to file new legal briefs.

In Food and Drug Administration v. Brown and Williamson Tobacco Corp. (No. 98-1152), the court will consider whether the federal agency has the authority to regulate tobacco as a drug. At stake are FDA regulations aimed at curtailing the advertising and sale of cigarettes and smokeless-tobacco products to anyone under 18.

Arizona Tax Credit

The court will continue to add cases to this term's docket for the next several months. Among the appeals awaiting the justices' attention are several contentious education issues, including the Arizona tuition- tax-credit program.

The Arizona program allows taxpayers to take a credit of up to $500 for contributions they make to "school tuition organizations," which provide scholarships for children to attend private schools, including religious schools.

Parents cannot take the credit for donations on their own children's behalf, so the program is something of a cross between the Minnesota tuition tax break upheld by the high court in the 1983 case of Mueller v. Allen and an outright private school voucher given directly to parents.

The Arizona Supreme Court upheld the tax credit last spring against a federal constitutional challenge. In Kotterman v. Killian (No. 98-1716), teachers' unions and other opponents of public aid for private education are asking the justices to strike it down.

Later this fall, the court will decide whether to hear the appeal of religious school parents in Maine who were denied reimbursement for tuition under the state's policy that allows public funding of private school tuition for communities without their own public high schools. In Bagley v. Raymond School Department (No. 99-163), the parents argue that the First Amendment to the U.S. Constitution does not require the exclusion of religious schools from the tuitioning program.

Prayer and Drug Testing

On another question of church and state, a small Texas district is asking the high court to reverse a federal appellate ruling in Santa Fe Independent School District v. Doe (No. 99-62) that struck down student-led prayers before football games.

The ruling by the 5th Circuit court last spring has caused considerable rancor this fall at high school football stadiums throughout Texas, as well as in Louisiana and Mississippi, which are also part of the court's jurisdiction.

Another appeal pending at the court involves mandatory drug testing of teachers by a Kentucky school district. While student drug testing remains a sharply debated issue, the Supreme Court has never specifically addressed the constitutionality of such testing for teachers who are not under suspicion of illegal drug use.

In Knox County Education Association v. Knox County Board of Education (No. 98-1799), the local affiliate of the National Education Association is asking the court to overturn the district's policy of drug testing all new teachers.

The U.S. Court of Appeals for the 6th Circuit, which is based in Cincinnati, upheld the district's policy, saying it was justified under the district's obligation to "ensure the safety and welfare of children."

Vol. 19, Issue 6, Pages 26,32

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