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Court asked to reverse ban affecting religious schools

WASHINGTON (BP)–The U.S. Supreme Court has been asked to take the unusual step of overturning one of its decisions in basically the same church-state case.

In oral arguments before the justices April 15, the Clinton administration and the New York City Board of Education requested the high court reverse its own 1985 opinion that prevents public school teachers from providing remedial education to needy children in religious schools.

Meanwhile, some organizations, including the Christian Legal Society and Southern Baptist Christian Life Commission, have asked the justices to use the case to adopt a new test, based on government neutrality toward religion, in cases involving the establishment clause of the First Amendment.

The case stems from a 1965 federal education law. In Title I of the act, Congress provided funds for local school boards to supply remedial education for economically and educationally needy children in subjects such as English and math. Eligibility for the program was to be free of religious discrimination and to be distributed equitably to both public school and private school students.

In 1985, the Supreme Court ruled in Aguilar v. Felton the provision of such services at religious schools violated the First Amendment clause prohibiting an establishment of religion. The court based its decision on the 1971 Lemon test, which says a government action must have a secular purpose, a secular effect and not be an excessive entanglement between church and state.

Since the opinion, schools in New York City and other cities have provided Title I services to religious school students in public school classrooms, in buses and other mobile units off religious school property, and by computer. The New York City board says providing Title I services through these alternative methods costs an additional $15 million a year.

When the case, now Agostini v. Velton, was argued before the high court April 15, a majority of the justices had criticized in recent years the Lemon test or, at least, expressed an interest in overturning the Aguilar opinion.

During the arguments, Associate Justice David Souter expressed the greatest skepticism toward the government’s assertion the court should reverse itself, while Associate Justices Antonin Scalia, Sandra Day O’Connor and Anthony Kennedy seemed the most receptive to such arguments. In addition to Scalia, O’Connor and Kennedy, Chief Justice William Rehnquist and Associate Justice Clarence Thomas have shown antipathy toward the Lemon test.

Acting Solicitor General Walter Dellinger, representing the Clinton administration, called on the court to overturn Aguilar “because it is inconsistent with this court’s establishment clause decisions” and because it imposes an undue burden on the Title I program.

Paul Crotty, corporation counsel for New York City, told the justices there has not been a case in the last 30 years in which a public school teacher working with religious school students “has had his or her mind so overwhelmed that they have begun teaching sectarian subjects.” Under Title I, New York City teaches 11,000 religious school students in buses just off site and another 7,000 on computers, Crotty said.

In support of the Aguilar decision, Stanley Geller told Scalia, who challenged him frequently, he did not oppose the inclusion of private secular schools in the Title I program, only religious schools. He also said he had no problem with busing religious school students to public schools for remedial education.

Noting the high court had allowed government to provide such services as books and sign-language interpreters for religious school students, Scalia told Geller it “seems there is not this clear line” he would like to draw.

When Scalia asked why teachers are different than books, Geller said, “Because teachers are uncontrollable and sometimes unprofessional.”

O’Connor scolded Geller for such an argument. Teachers had carried out the Title I program with no reported violations for 19 years “until this court somehow got the notion” it violated the establishment clause, she said.

The reason there were “no violations is because the only ones who could report violations are the violators themselves,” Geller said.

About one-fourth of the hour-long arguments was spent on the appropriateness of the procedure used to return the case to the Supreme Court.

The Christian Legal Society filed a friend-of-the-court brief asking the court to revise the Lemon test. Signers to the brief included the Christian Life Commission, Focus on the Family, Family Research Council, National Association of Evangelicals and Lutheran Church-Missouri Synod. Among others filing briefs in support of overturning the Aguilar decision were the U.S. Catholic Conference and the National Jewish Commission on Law and Public Affairs.

Americans United for Separation of Church and State and the ACLU joined in a brief on the opposite side.

This case “provides a perfect opportunity for the court to restore some predictability and some bright lines and some common sense to the chaos that presently characterizes the First Amendment jurisprudence from this court,” Christian Legal Society staff attorney Steve McFarland told reporters afterward.

“You have the irony that the court was discussing this morning that it apparently doesn’t violate the First Amendment for the government to bus religious school students, for them to take them on field trips, to provide books, but it somehow does violate the First Amendment for those same school teachers (with) those same public funds to provide the ABCs … to at-risk, low-income students.”

Barry Lynn, executive director of Americans United, said outside the court, “This will, if it is decided wrongly, be another breach in the wall of separation between church and state, and another costly expenditure for the taxpayer and, finally, another very serious blow to America’s public schools.”

In a written statement, Brent Walker, general counsel of the Baptist Joint Committee, called it a mistake if the justices used the case “as an opportunity to eliminate or water down the entanglement prong of the Lemon test. Eliminating this prong would thwart, not advance, religious liberty.”

It also would be wrong if the court rejected “the prohibition on using public funds to finance religious enterprises,” Walker said.