Court To Weigh Adding Cases to New Term's Docket

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WASHINGTON--After an eventful year that included important rulings on desegregation, graduation prayers, and sexual harassment in the schools, the U.S. Supreme Court opens its new term this week without any major education cases on its docket.

With only about a third of the docket filled, however, the High Court still has the opportunity to add cases involving education issues.

The Justices are expected to announce this week whether they will accept any of the nearly 1,500 petitions for review that piled up over the summer.

Among the several education cases that could be considered are disputes over special-education placements in private schools, New York State's mandate that religious representatives be included on school districts' AIDS-advisory councils, and religious groups' after-hours access to public schools when other community groups are allowed to use such facilities.

Meanwhile, there are several cases scheduled for argument this fall that, while they do not directly involve schools, are being watched closely by educators and child-welfare advocates.

Ritual Killings Banned

The most significant of these is a Florida case involving the constitutional guarantee of free exercise of religion that has attracted the attention of many church groups and religious-liberty advocates.

The immediate question in Church of the Lukumi Babalu Aye v. City of Hialeah (Case No. 91-948) is whether the Florida municipality violated the Free Exercise Clause by enacting ordinances forbidding the ritual killing of animals.

The laws were passed in 1987 in response to plans to open a church in Hialeah by a group of followers of Santeria, a derivative of an ancient African religion that was brought to South Florida by Cuban immigrants. Sacraments of the church call for sacrificing chickens, pigeons, and other animals for rites of birth, marriage, and death.

Upon learning of the church's plans, Hialeah officials adopted laws forbidding the ritual killing of animals "not for the primary purpose of food consumption.'' Killing animals for secular motives, such as hunting, was not outlawed.

Religious groups have seized upon the case to urge the High Court to clarify its controversial 1990 ruling in an Oregon case, Employment Division v. Smith. In that case, the Court upheld an Oregon law that banned the religious use of the drug peyote.

In a novel legal theory offered by Associate Justice Antonin Scalia, a majority of the Court declared that a "neutral, generally applicable law'' could burden a religion without violating the Free Exercise Clause.

Supporters of the Santerian church argue that Hialeah's animal-killing ordinances were blatantly targeted at an unpopular minority religion, and thus violate the standards set forth in Smith. The U.S. Court of Appeals for the 11th Circuit upheld the ordinances as being enacted with compelling government interests, such as reducing harm to animals and public-health risks.

Impact on Religious Schools

Several religious-liberty advocates have argued in briefs filed with the High Court that the Smith decision has weakened local governments' tolerance for the rights of religious minorities.

"If ordinances like these from Hialeah are allowed to stand, it will be open season on unpopular religions,'' says a brief filed on behalf of the Santerians by the American Civil Liberties Union.

Some legal experts believe that if Smith is not altered, religious minorities in public schools could face a host of problems, for example by being denied excusal for their faiths' observances. The experts also warn that states may seek to use the current precedent to impose more stringent regulations on private religious schools.

"Unless Smith is corrected, Roman Catholic children will no longer have a right of excusal from sex-education classes in public schools contrary to their religious teaching,'' says a brief filed by 16 denominations, religious groups, and other advocacy organizations. "No longer will religious schools be able to invoke the Free Exercise Clause to shield themselves from accreditation standards applicable to secular public schools.''

Religious groups have also sought Congress's help in overturning the Smith decision. A bill to negate the ruling passed the House Judiciary Committee last week.

The Hialeah case will be argued before the Court on Nov. 4.

Alien Detentions Challenged

In Barr v. Flores (No. 91-905), child-welfare advocates are challenging the Immigration and Naturalization Service's policy of detaining juveniles alleged to be illegal aliens unless a close relative is available to take custody of them.

The critics argue that the policy violates the youths' constitutional right to due process of law, and the U.S. Court of Appeals for the Ninth Circuit agreed.

Both the American Bar Association and a number of child-welfare organizations have filed briefs on behalf of the alien children. The case will be argued Oct. 13.

In a case to be argued this week, the Court will consider whether federal civil-rights laws authorize the awarding of attorney's fees to civil-rights plaintiffs when they win only nominal damages.

The issue is of interest to school districts and other local and state governmental bodies, which are the frequent targets of civil-rights lawsuits. In many cases, awards of attorney's fees to winning civil-rights plaintiffs can be more costly than the damages awarded. The case, Farrar v. Hobby (No. 91-990), is to be argued Oct. 7.

The High Court also could announce this week whether it will accept appeals dealing with several important education questions, such as:

  • May New York State require that religious representatives be included on local AIDS-education advisory councils? The state's highest court said yes. The case is New York State School Boards Association v. Sobol (No. 92-304).
  • May a New York school district deny use of its facilities after hours solely on the basis of the religious content of the proposed activity? The U.S. Court of Appeals for the Second Circuit said yes in Lamb's Chapel v. Center Moriches Union Free School District (No. 91-2024).
  • Does the constitutional ban on government establishment of religion bar an Arizona school district from providing a sign-language interpreter to a deaf child attending a religious school? The U.S. Court of Appeals for the Ninth Circuit said yes in Zobrest v. Catalina Foothills School District (No. 92-94).

Vol. 12, Issue 05

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