June 24, 1997 in Nation/World

Supreme Court Backs Off Church-State Separation Required Public Instruction For Needy Can Be Given Inside Parochial Schools

David G. Savage Los Angeles Times
 

Backing away from an earlier, rigid insistence on a separation of church and state, the U.S. Supreme Court ruled Monday that public school tutors can again enter parochial schools to provide remedial teaching to low-income children.

The 5-4 ruling will save public school systems - mainly those in big cities - a nationwide total of $15 million a year. Since 1985, the schools have spent that money on mobile vans that were placed outside parochial schools. The schools resorted to the vans to comply with an earlier Supreme Court ruling that said public teachers could not work on the premises of a religious school.

In the wake of that ruling, school officials joked that the line separating church and state had become the curb. It was legal if children walked into a mobile van parked on a city street for reading and math lessons, but it was illegal if the teacher walked into a parochial school classroom for the instruction.

The Supreme Court rarely agrees to reconsider one of its own precedents, but the justices did so in this instance.

“A federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid” under the First Amendment simply because the “instruction is given on the premises” of church schools by public school employees, said Justice Sandra Day O’Connor, speaking for the court.

She added she saw no use in “forcing (a school district) to spend millions of dollars on mobile instructional units and leased sites when it could instead be spending that money to give economically disadvantaged children a better chance at success in life.”

The dilemma arose from the federal government’s landmark Aid to Education Act of 1965. The measure, passed during the Johnson administration’s War on Poverty, supplied money for extra tutoring for low-income children, but it required the school districts that received the money serve children on an equal basis, regardless of whether they attended a public or private school.

For the 20 years, public and parochial schools worked to achieve this goal. But in 1985, the high court on a 5-4 vote ruled these cooperative arrangements were unconstitutional because they amounted to “an excessive entanglement between church and state.”

Teachers and school officials were not the only ones to chafe at the ruling. Several of the court’s conservatives justices said it was wrongly decided and should be reversed.

That opportunity came this year when New York school officials, joined by the Clinton administration, filed an appeal urging the matter be reconsidered.

In her opinion, O’Connor admitted that nothing much had changed since 1985 except the court itself.

Staunch liberals such as William J. Brennan, Thurgood Marshall and Harry Blackmun who championed a strict separation of church and state have been replaced since the ‘85 ruling, and the reconfigured court contains a great number of more conservative justices who favor greater accommodation between church and state.

O’Connor’s opinion in Agostini vs. Felton, was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

In dissent, Justice David H. Souter said the ruling authorizes “direct state to religious institutions on an unparalleled scale.”

Predictably, the outcome spurred a new debate over the constitutionally of state or federal efforts to provide payments to students - so-called vouchers - that would give them the option of attending private schools.

Clint Bolick of the Institute for Justice in Washington said the ruling “bolsters school-choice advocates” and should clear away legal doubts about voucher plans in Milwaukee, Cleveland and in Vermont.

Disagreeing, Americans United for Separation of Church and State said the ruling does not give “blanket approval for government aid to religious schools.”


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