RELIGION & THE COURT : Between expression & establishment.

The Supreme Court has opened its doors for another term and has on its docket an important case involving the First Amendment's religion clause. Mitchell v. Helms will be heard on December 1, and the Court will rule on it next spring. The case involves a popular federal program providing assistance to state and local educational agencies to purchase and lend nonideological materials such as computers to public and nonpublic schools. A group of taxpayers has challenged the program as impermissible because it advances religion in violation of the prohibition of an establishment of religion.

If all the Court had to do was to reach back to clear precedents to resolve Mitchell, it would be easy to predict the outcome. Alas, the Court's First Amendment precedents touching on religion have, until fairly recently, been in disarray. Berkeley law professor Jesse Choper calls this area of the Court's work "ad hoc judgments which are incapable of being reconciled on any principled basis." For example, the Court ruled that it is permissible for the government to provide books to students attending religious schools. However, in another case the Court ruled that it is impermissible to lend instructional items such as tape recorders and maps. The drawing of a constitutional line between books and maps led Senator Daniel Patrick Moynihan (D-N.Y.) to wonder famously what the Court might opine about an atlas.

In recent decisions, though, the Court has been inching toward greater clarity and consistency. In the latest effort to speak to this issue, Justice Sandra Day O'Connor explained in 1997 that there is no impermissible financial incentive to advance religion when "aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis." The Mitchell case affords the Court an opportunity to apply the nondiscrimination principle to the specific question of providing computers to all students, in public and private schools, including religious schools.

Educators in religious schools have filed a brief offering three reasons to uphold the federal program. First, computers are an effective tool to enable students to undertake research and to write more cogently and effectively. Second, computers and books are functionally equivalent as alternative means of transmitting texts. Third, important long-term economic benefits flow from training in computer skills. The denial of a nonideological benefit like computers could thus be viewed as a penalty on the exercise of parental liberty to choose a religious school for their children, which the Court protected as early as 1925.

But little seems to be straightforward about this area of the law. At its first session this year the Court announced that it would not grant review in a case from Arizona that sustained a state program allowing a $500 tax credit for tuition payments to religious schools. Last year the Court left standing a lower-court decision sustaining the Milwaukee parental-choice program, which gives low-income parents an opportunity to have their children educated outside that city's embattled public schools. Both of these programs will continue to function, and both will provide data enabling legislators around the country to determine which approach to funding education, if either, seems appropriate.

The Court has not yet decided whether to hear another case in which the Maine Supreme Court ruled that parents are not entitled to state reimbursement of tuition for educating their children in religious schools. The mere fact that the Court denied review in the Arizona case is no guarantee that it will not decide to hear the Maine case. In the past, the Court has often taken cases in which the lower courts have denied a benefit to persons attending religious schools. Recent examples touching on this problem also include payment for tuition at a Bible college for a blind student to become a youth minister, provision of a sign language interpreter at a Catholic high school for a student with severe hearing impairment, and inclusion of a religious newspaper within a student-fee fund at a state university. In all three instances the lower courts denied the benefit, and the Supreme Court reversed those judgments and allowed the benefit. In all three instances, moreover, the aid was available to a broad class of beneficiaries. The vocational rehabilitation funding was available to all blind persons. Sign language interpreters were available not just to students attending religious schools, but to students in public schools as well. And the state university allowed the use of student-fee funds for a variety of religious and cultural activities, making its denial of the funds for a Christian newspaper seem discriminatory. Still, the very fact that the lower courts denied a benefit to a party seeking it can also be read as evidence that there is no favoritism toward a particular religion or-to use the legal term of art that Justice O'Connor coined-no "endorsement" of religion by the lower courts.

Another major issue the Court has wrestled with over the past half- century is the role of religion in the public schools. In 1948 the Court invalidated an interfaith program in which parents opted to have their children take religious instruction for an hour a week from a priest, minister, or rabbi inside the public school. Four years later, stating, "We are a religious people whose institutions presuppose a Supreme Being," the Court upheld a program in which parents could opt to send their children for religious instruction off the premises of the school. In the 1960s the Court invalidated the recitation of a government- composed prayer, as well as the devotional reading of the Bible or recitation of the Lord's Prayer. No cases from the Warren Court-not even the school desegregation case-caused more public furor and open resistance by school boards all over the country. Repeated efforts to amend the Constitution on this point failed, but only just barely.

A compromise was reached in 1984 with the federal Equal Access Act, which allowed students to meet voluntarily for prayer on the premises of public schools on the same basis as other noncurricular groups such as chess clubs. The Court sustained that legislation, but the squabbling over prayer in public schools did not go away. In 1992 the Court ruled that the First Amendment was violated when a public school official invited a rabbi to offer a benediction at a public school commencement. The Court has declined to decide whether student-led prayer at graduation exercises is likewise impermissible.

In a case from Texas, the Court has again been asked to rule on the constitutionality of student-led prayer at public school graduations and football games. The lower court ruled that student-led "nonsectarian and nonproselytizing" prayer at graduations is permissible, but that prayers at football games are not. Knowing how seriously Texans regard both Friday-night high-school football and earnest prayer for the avoidance of personal injury in these contests, Texas Governor George W. Bush has signed an amicus brief urging the Court to grant review in the case.

The chance that the Court may take the Texas case was improved by a ruling in July by an appellate court that Alabama public schools not only may but must permit student-led prayers with explicitly religious content at football games. To forbid student-led religious speech on such occasions, that court ruled, would be "the most egregious form of content-based censorship."

Both the Texas school speech case-if the Court decides to review it-and the computer-aid case afford the Court an opportunity to shed some light on what it means by the nondiscrimination principle. A benefit provided evenhandedly to all children, whether attending public schools or religious schools, does not seem to violate the First Amendment. The Court may use the same rationale to allow speech by students on public school campuses on a variety of themes, provided that no government official influences the content or viewpoint of the student speakers.

Edward McGlynn Gaffney, Jr., a frequent contributor, is professor of law at Valparaiso University.