Copyright 1999 The New York Times Company
The New
York Times
June 6, 1999, Sunday, Late Edition - Final
SECTION: Section 1; Page 28; Column
3; National Desk
LENGTH: 1085 words
HEADLINE: White House Seeks Ruling on Private School
Aid
BYLINE: By LINDA GREENHOUSE
DATELINE: WASHINGTON, June 5
BODY:
Raising the stakes in the debate over public
aid to parochial schools, the Clinton Administration is asking the Supreme Court
to review a Federal court's finding that it is unconstitutional for public
schools to provide computers and other "instructional equipment" for use in
religious school classrooms.
The Administration has proposed spending
$800 million on an educational technology program that would, among other
things, help connect every classroom and school library in the country to the
Internet. But the little-noticed ruling last August by the United States Court
of Appeals for the Fifth Circuit, in New Orleans, poses a formidable
constitutional obstacle to that goal, as the Administration told the Supreme
Court in a brief it filed last month.
The Administration's brief
supports a group of parochial school parents from the New Orleans area who are
appealing the decision.
The implications of the case reach far beyond
classroom computers to the highly charged question of where -- and how -- to
draw the line between permissible and prohibited Government assistance to
religious schools. Although the question of publicly financed vouchers for
religious school tuition is not directly at issue, the stakes are high for that
constitutional debate as well.
The Court is likely to announce later
this month whether it will hear the appeal, a prospect significantly enhanced by
the Administration's intervention. The fact that another Federal appeals court,
the Ninth Circuit in San Francisco, reached an opposite conclusion three years
earlier also adds to the likelihood that the Justices will add the case to their
docket for the next term.
The Fifth Circuit case began as a challenge to
a provision of the Elementary and Secondary Education Act of
1965 under which public schools receive Federal aid for special services and
equipment, including computers, and must share the material on a "secular,
neutral, and nonideological" basis with students enrolled in private schools
within their boundaries. Several taxpayers in Jefferson Parish, La., where 41
out of 46 private schools were religious, objected that this aspect of the
program was unconstitutional and filed a lawsuit in 1985.
The case had a
tangled history before finally reaching the appeals court last year. Writing for
a three-judge panel, Judge John M. Duhe Jr. opened his opinion by commenting
that "this case requires us to find our way in the vast, perplexing desert of
Establishment Clause jurisprudence." He then went on to find that a series of
Supreme Court decisions on parochial school aid, dating from the 1970's, had
drawn a fairly clear line between the permissible and the prohibited, based on
the "character of the aid itself."
Textbooks in secular subjects were on
the permissible side of the line, Judge Duhe said, because in the Supreme
Court's view, the public school district could screen the books in advance to
make sure that they would not be used as part of a parochial school's religious
mission. But he said the precedents made clear that other material, with less
easily confined and ascertainable content, more subject to diversion to
religious purposes, was off-limits.
Whether the Fifth Circuit's view of
the current state of the law is accurate is obviously open to debate, given the
Ninth Circuit's conflicting opinion in a similar case. So the real question in
this case, Mitchell v. Helms, No. 98-1648, is where the Justices think their
precedents place the line, and whether they are prepared to adjust or jettison
those precedents to make room for technology that was not even on the horizon a
quarter-century ago.
Two years ago, in a case from New York that
concerned another provision of the same 1965 Federal education law, the Court
explicitly overturned an earlier decision and ruled that the Constitution
permitted public school teachers to offer remedial courses in parochial school
classrooms. Justice Sandra Day O'Connor's opinion for a 5-to-4 majority in that
case, Agostini v. Felton, said the Court's "understanding of the criteria used
to assess whether aid to religion has an impermissible effect" had changed and
that a 1985 decision barring public school teachers from parochial classrooms
was accordingly no longer good law.
In his brief for the Administration
in the current case, Solicitor General Seth P. Waxman cited the Agostini
decision as an indication that the "broad categorical rule" the Fifth Circuit
derived from the Supreme Court's precedents, with textbooks on one side of the
line and everything else on the other, is no longer an accurate statement of the
majority's view. The brief invites the Justices to re-examine the precedents and
adopt "a more nuanced rule" that would permit public schools to provide
computers and other instructional equipment to parochial schools as long as
safeguards were in place to make sure the material would not be diverted to
religious use and would not "supplant resources that the school itself would
otherwise provide or obtain."
Although cases in the lower courts seeking
or challenging tuition vouchers for parochial schools have been receiving
headlines, this case has been the focus of intense interest among lawyers and
others who monitor church-state developments. The parochial school parents
bringing the appeal are represented by Michael W. McConnell, a law professor at
the University of Utah whose articles and advocacy for the view that religious
and secular institutions are constitutionally entitled to equal treatment have
been highly influential over the last decade.
In his brief, Mr.
McConnell maintained that the Fifth Circuit's decision "consigns those who
attend religiously affiliated schools to the use of textbooks under the program,
while children of other taxpayers are using graphing calculators to solve
polynomial equations and reading about the latest in Mesopotamian archeological
discoveries on CD-ROM's."
Lee Boothby, a Washington lawyer and
well-known advocate of strict church-state separation, has represented the
plaintiffs in this case since they filed their lawsuit 14 years ago. "What's
really at stake," he said in an interview this week, "is whether we will abandon
the concept the Court has historically followed of not providing any direct aid"
to parochial schools. "The Court is being asked to reject some pretty bedrock
no-direct-aid principles," he said, adding that if the Justices accepted that
invitation, "I don't know where you draw the line."
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