Court To Review Two Church-State Rulings This Term

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WASHINGTON--The U.S. Supreme Court last week agreed to hear two cases that again give the Justices an opportunity to examine issues of separation of church and state in public education.

Just months after its controversial ruling that barred prayers at public school graduation ceremonies, the High Court agreed to review two lower-court rulings that upheld school districts' efforts to avoid what they viewed as impermissible support for religion.

In a case from Arizona, Zobrest v. Catalina Foothills School District (Case No. 92-94), the Court will decide whether it is constitutional for a public school district to pay for a sign-language interpreter to accompany a deaf child attending a Roman Catholic high school.

In Lamb's Chapel v. Center Moriches Union Free School District (No. 91-2024), the Court will determine whether a New York State district may open its facilities for after-school use by civic, social, and recreational groups but deny access to a group that planned to use them for religious purposes.

The two cases accepted by the High Court on Oct. 5, the first day of its new term, could lead to narrow rulings on the specific issues involved, which have surfaced a number of times nationwide in recent years.

But the cases could also become vehicles for re-examining High Court precedents on church-state relations. Several Justices have expressed a desire to redraw the lines laid down by the Court and allow for a greater recognition of the role of religion in public life.

In the Arizona case, the parents of a deaf teenager, James Zobrest, requested that the Catalina Foothills district provide a sign-language interpreter for their son, who was to attend a Catholic high school in Tucson.

The district agreed that under federal and state laws guaranteeing a "free, appropriate education'' to children with disabilities, the boy was entitled to an interpreter. But the district said it could not provide an interpreter in a religious school because that would violate the U.S. Constitution's ban on a government establishment of religion.

The Zobrests sued, contending that their right to free exercise of religion was infringed by the district's decision. They lost in both federal district court and the U.S. Court of Appeals for the Ninth Circuit.

A 'Symbolic Union'

A panel of the appeals court ruled 2-to-1 earlier this year that to provide the sign-language interpreter on the grounds of a Catholic school would impermissibly advance religion by creating a "symbolic union'' of church and state. The majority held that the denial of the interpreter was a burden on the Zobrests' constitutional right to free exercise of their religion, but it said the burden was justified by a compelling state interest to avoid violating the establishment clause.

James Zobrest graduated from Salpointe Catholic High School last May, and his parents are now seeking reimbursement for the $8,500 a year that they paid to hire an interpreter for him.

The Zobrests' appeal to the Supreme Court draws heavily on the dissenting opinion from the appellate court. Among the precedents cited by the dissenting appellate judge, and the Zobrests, is Witters v. Washington Department of Services for the Blind, in which the High Court upheld the provision of aid to a blind student at a religious college because the program was enacted with a secular purpose.

The Zobrests argue that the appeals-court majority misapplied the High Court's test for determining whether a government program or practice violates the establishment clause. Under the so-called Lemon test, from the 1971 case Lemon v. Kurtzman, the government practice must have a secular purpose, must neither advance nor inhibit religion, and must not result in excessive entanglement between government and religion.

A friend-of-the-court brief filed by several religious groups in behalf of the Zobrests argues that the case must be viewed in terms of both the establishment clause of the First Amendment and its companion clause guaranteeing the free exercise of religion.

"The Supreme Court has made discrimination the centerpiece of its religious-liberty case law,'' said Douglas Laycock, a University of Texas law professor who helped write the religious groups' brief. "The school board policy in Zobrest certainly looks like discrimination against religion.''

Access to Facilities

In the New York State case, there is a clash between the school district's desire not to violate the establishment clause and the free-speech rights of a Christian church group, Mr. Laycock said.

In 1988, John Steigerwald, the pastor of an evangelical Christian church on Long Island known as Lamb's Chapel, asked the Center Moriches school district for the use of some of its facilities to present an inspirational-film series featuring James Dobson, the president of the national group Focus on the Family.

The district has regularly allowed its facilities to be used by groups such as the parent-teacher association and the Brownies, but it prohibits the use of school premises by any group for religious purposes. The district denied Lamb's Chapel's request several times, also citing a section of New York State education law that forbids the use of school facilities for religious purposes.

Lamb's Chapel sued the school district, but lost in federal district court and in the U.S. Court of Appeals for the Second Circuit. A unanimous three-judge appellate panel said that the school system's facilities were considered to be a "limited public forum'' and that school authorities thus could limit their after-school use to specified purposes.

Lamb's Chapel contends that the Second Circuit court's ruling was in conflict with related rulings from four other federal circuit courts. Appeals courts for the first, third, fourth, and fifth circuits "have held that school facilities made available for social, civic, and recreational use by outside groups are designated public fora'' and thus school authorities may not exclude after-school speakers based on the content of their speech without a "compelling state interest,'' the group's petition asserts.

The two religion-related cases will probably be set for argument after Jan. 1, with rulings expected by next July.

AIDS-Panel Case

In another establishment-clause case, the High Court last week declined to review a New York State education department regulation requiring that representatives from religious organizations be included on local school districts' advisory councils on acquired immune deficiency syndrome.

Commissioner of Education Thomas Sobol included the requirement in 1987 in regulations on mandatory health education on AIDS. The advisory councils are charged with making recommendations to their school districts on the content and implementation of the áéäó instruction.

The regulations say the advisory councils must include parents, school board members, school district personnel, and "community representatives,'' including some from religious organizations. The New York State School Boards Association sued, arguing that the religious requirement violated the establishment clause.

New York State's highest court upheld the regulations earlier this year. The National School Boards Association joined the New York State association in its appeal to the U.S. Supreme Court, saying the case establishes a "dangerous precedent'' by requiring religious involvement in school-curriculum decisions.

However, the High Court last week declined without comment to review the case, New York State School Boards Association v. Sobol (No. 92-304).

Other Action

In other action last week, the Court:

  • Declined to review a ruling by the U.S. Court of Appeals for the Sixth Circuit upholding a Cincinnati school board policy of using teacher transfers to maintain racial balance among each school's faculty. The appeal was Jacobson v. Cincinnati Board of Education (No. 91-2056).
  • Let stand an Oregon Court of Appeals ruling that the Roman Catholic Archdiocese of Portland is a "subject employer'' under state employment law and thus is subject to paying unemployment taxes for its school employees. The church argued that the designation violates the establishment clause. The appeal was Archdiocese of Portland v. Employment Division (No. 91-1554).

Vol. 12, Issue 06

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