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Published in Print: October 13, 1999, as High Court Leaves Tuition-Tax-Credit Ruling in Place

High Court Leaves Tuition-Tax-Credit Ruling in Place

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The U.S. Supreme Court declined last week to take up appeals involving two important education issues: tax credits for religious school tuition and drug testing of teachers. Its denials left two such programs in place.

Acting on more than 1,600 cases on the first day of its new term, the court on Oct. 4 refused to hear a closely watched appeal involving Arizona's private school tax credit. The program allows taxpayers credits on up to $500 in contributions to private tuition funds that provide scholarships for children to attend private and religious schools.

Although the Arizona program is not identical to a direct government voucher for use at private schools, advocates on both sides of the private-school-choice debate had hoped the court would use the case to clarify the legal status of government aid for religious schools.

"The conflict over the constitutionality of parental choice begs resolution by this court," said a brief filed on behalf of private school parents in Arizona by the Institute for Justice, a Washington organization that supports vouchers and tuition tax credits for private schools.

Teachers' unions and other opponents of the tax credit urged the high court to review the ruling of the Arizona Supreme Court, which held in January that the program does not violate federal or state constitutional prohibitions against government aid to religion. ("Tax Credits Pass Muster in Arizona," Feb. 3, 1999.)

The tax credit is a "thinly disguised use of the tax code as a means of transferring public funds to the coffers of private--mostly sectarian--schools," said the brief by Arizona Education Association, the Arizona Federation of Teachers, and other advocates of strict separation of church and state.

But the justices declined without comment to hear the appeal in Kotterman v. Killian (Case No. 98-1716). It was the second time in as many years that the court passed up the chance to review a state school choice program that includes religious schools. Last fall, the court let stand a Wisconsin Supreme Court decision upholding the Milwaukee voucher program.

Legal experts believe the justices will eventually take a case involving religious school vouchers or some other form of private school choice.

Within the next few weeks, the court will consider whether to grant review of two appeals involving a small-scale program in Maine that pays private school tuition for students in districts that lack public high schools.

Drug Testing

Also last week, the court refused to hear the appeal of a National Education Association affiliate in Tennessee that sued over the Knox County district's policy of testing new teachers for illicit drug use.

The 52,000-student district, which includes Knoxville, adopted the policy in 1994. The district requires drug testing of all hires for what it deems "safety sensitive" jobs, including teachers, teaching aides, school secretaries, assistant principals, and principals.

Any job candidate testing positive for drug use is not hired. The district does not conduct any random tests of the covered employees after the initial screening.

The Knox County Education Association challenged the program as a violation of the Fourth Amendment's prohibition against unreasonable searches. A federal district court struck down the program, but a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, sided with the school system.

The appeals panel unanimously held that teachers and other covered employees could be construed to fit the safety-sensitive category in which the Supreme Court has upheld drug-testing for such positions as train engineers and drug-interdiction agents.

"A local school district has a strong and abiding interest in requiring that teachers and other school officials be drug-free so that they can satisfy their statutory obligation to ensure the safety and welfare of the children," the 6th Circuit court said.

In its appeal in Knox County Education Association v. Knox County Board of Education (No. 98-1799), the teachers' union argued that the program should be dismantled based on the Supreme Court's 1997 ruling in Chandler v. Miller. In that case, the court struck down a Georgia law that required drug testing for candidates for high state offices.

The court said the testing requirement was adopted for symbolism's sake and did not meet the standards for an exception to the Fourth Amendment's general requirement of an individualized suspicion of wrongdoing.

The union argued that the reasoning of the 6th Circuit court in the Knox County case "stands for the proposition that public school teaching positions are inherently 'safety sensitive,' and that it therefore is constitutionally permissible to subject public school teachers in school systems throughout the nation to suspicionless drug testing."

The justices declined without comment to hear the appeal.

Experts on school law say drug testing of teachers is not currently widespread.

Mike Cohen, the communications director for the Knox County district, said officials there had been inundated with requests for copies of the drug- testing policy since the 6th Circuit court upheld it. "We've tested 1,064" candidates in the covered category, he said. Fewer than 10 tested positive for drug use, he added.

Religion and Band

In other action last week, the high court:

  • Rejected the appeal of a New York state teacher who was ordered not to use religious references in his instruction to socially and emotionally disturbed high school students.

Dan Marchi got into trouble with his superiors at a cooperative education district in the Albany, N.Y., area for making classroom references to his Christian faith and sometimes praying privately with students on school grounds. Mr. Marchi sued the district, claiming that orders not to make religious references violated his First Amendment right to free speech. Lower federal courts ruled against him.

His Supreme Court appeal was Marchi v. Board of Cooperative Educational Services (No. 99-36).

  • Declined to revive a lawsuit filed by a Virginia high school band director against a sheriff who arrested him during a parade for refusing to make his band speed up.

Robert F. Spiers was leading the Lancaster High School Red Devils marching band in the Warsaw, Va., harvest parade in 1997 when Richmond County Sheriff Gene Sydnor told him to "pick up the pace or you're out of the parade."

The band leader resisted the sheriff's efforts to direct the marching band out of the parade, so the sheriff detained Mr. Spiers in handcuffs and made him sit on a curb. No charges were filed.

Mr. Spiers sued the sheriff for unlawful arrest and other claims, but the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Va., ruled that the sheriff had immunity from the suit.

The appeal was Spiers v. Sydnor (No. 98-1984)

Vol. 19, Issue 7, Pages 23,28

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