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Published in Print: October 1, 2003, as Key Religion Case Tops High Court Docket

Key Religion Case Tops High Court Docket

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In the coming months, the U.S. Supreme Court will undoubtedly add plenty more cases to its to-do list for the court term that opens next week. But the 2003-04 session already is shaping up as another one of potentially major importance to the education community.

School-related cases have yielded some of the court's highest-profile rulings in recent years, notably the landmark 2002 ruling upholding the Cleveland school voucher program and the decisions last June on the University of Michigan's affirmative action programs. That trend may well continue this year, with a case involving another twist on the volatile issue of public money for religious schooling already accepted for review, and a hot-button appeal involving the recitation of the Pledge of Allegiance in public schools widely expected to be among the school-related cases that the high court agrees to add to its docket.

In the education case the justices have already accepted, a college student named Joshua Davey challenged a Washington state policy of denying state scholarship aid for college to students who major in theology. Mr. Davey, now a student at the Harvard Law School, was denied aid from a scholarship program for which he qualified after he declared a major in theology at Northwest College in Kirkland, Wash.

A federal appeals court held that Washington state's policy was tantamount to religious discrimination, and the state appealed to the Supreme Court in Locke v. Davey (Case No. 02-1315).

Proponents of private school vouchers see the case as a direct descendent of the high court's ruling last year in Zelman v. Simmons-Harris, which held that the inclusion of private religious schools in the Cleveland voucher program was constitutional as long as parents made the choice to direct their state-financed voucher aid to such schools.

The Washington state case targets the kind of state constitutional ban on public funding of religion that activists on both sides of the voucher issue see as potentially blocking further expansion of voucher programs that include religious schools. ("Court Takes Case Seen as Voucher Sequel," May 28, 2003.)

"For the future of public education, it's a very important case," said Charles C. Haynes, a senior scholar at the First Amendment Center of the Freedom Forum, an Arlington, Va.-based foundation that studies constitutional issues.

'Under God'

Another closely watched church-state case that the court is being asked to decide centers on whether public schools are violating the U.S. Constitution's prohibition on a government establishment of religion when they lead children in reciting the Pledge of Allegiance, because of the inclusion of the phrase "one nation under God."

The justices formally open their new term on Oct. 6, but they were to meet this week to consider some of the hundreds of appeals that have piled up over the summer. Among those are appeals by the Bush administration and the 55,000-student Elk Grove Unified School District in California of a controversial 2002 federal appeals court ruling that public schools violate the First Amendment by leading the pledge.

"It's going to be a hugely controversial case," predicted Elliot Mincberg, the vice president and legal director of People For the American Way, a Washington-based advocacy organization that favors strict separation of church and state.

Many court observers expect the justices to take some action in the pledge case, known as U.S. v. Newdow (No. 02-1574). But the case also presents some complexities involving a custody dispute between the unmarried parents of the anonymous girl whose father brought the lawsuit, and it is possible the justices could dispose of the appeal on procedural grounds.

A number of other education cases are pending review by the high court.

On the perennially contentious issue of school funding, some school groups are hoping that the justices will take a long-fought case over Ohio's education finance system.

Last May, the Ohio Supreme Court declared that it was closing the books on DeRolph v. Ohio, following earlier rulings directing the state to overhaul its funding system. The Columbus-based Ohio Coalition for Equity and Adequacy in School Funding, which spearheaded the case, has asked the U.S. Supreme Court essentially to reopen the courthouse door, a move strongly opposed by the state.

Among the groups supporting the coalition's bid is the National School Boards Association, which nonetheless predicts that the chances of the high court's wading into the school finance arena are slim, given its history of leaving that matter to states.

"It's a long shot that the court will take it, but there are cases like it all across the United States," Julie Underwood, the general counsel of the NSBA, said of the appeal in DeRolph v. Ohio (No. 03-245).

Among the other education-related appeals pending possible review by the high court is a case involving a challenge to a district's censorship of a salutatorian's speech because it involved religious proselytizing; several cases involving the use of dues that teachers' unions get from employees who are not members but are covered by collective bargaining agreements negotiated by those unions; and the case of a student who was not allowed to have a lawyer present at a hearing over his long-term suspension from school.

Several nonschool cases that have been granted review by the high court are being followed by education groups, including General Dynamics Land Systems Inc. v. Cline (No. 02-1080), a reverse age-discrimination case brought by younger employees of a defense contractor who were shut out of certain benefits available to older workers. The National Education Association has filed a friend-of-the-court brief in the case out of concern that its outcome could affect early-retirement programs in school districts.

Vol. 23, Issue 5, Pages 21,23

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