Religious schools, tax dollars and the Supreme Court.

A New York Dispute Over Federally Funded Classes At Religious Schools Could Change The Way The Nation's High Court Rules On Church-State Separation

On July 1, 1985, the U.S. Supreme Court issued an important decision striking down federally funded remedial education classes at private religious schools, and then-Secretary of Education William Bennett was livid.

Blasting the Aguilar v. Felton ruling as "crazy," "terrible" and "badly reasoned," Bennett promised to find a way to undermine it. "We're not done," he vowed.

It took 12 years, but Bennett' s goal may finally be in sight. The Supreme Court announced last January that it will reexamine that 1985 decision, an action that raises the possibility of a wholesale revision of the high court's religious school aid policy and possibly a new course for church-state relations as well.

The new case, Agostini v. Felton, presents the justices with another opportunity to speak directly on the issue of taxpayer subsidies for religious schools. Not surprisingly, it is being closely watched by organizations that defend church-state separation as well as groups that would like to lower -- if not demolish -- the wall of separation between religion and government.

The high court's decision to take Agostini comes at a time when religious school voucher subsidies are increasingly the subject of national debate. Voucher proposals routinely appear in the U.S. Congress and state legislatures, and voucher schemes are now facing legal challenges in Wisconsin, Ohio and Vermont.

The new case, scheduled for argument before the justices April 15, is not a direct challenge to vouchers, but what the justices say will certainly affect the question of how far government may go in aiding religious schools. A sweeping decision could open the door to vouchers; a more narrow ruling or a decision that affirms church-state separation could take some steam out of the voucher drive.

"The high court's decision to reopen this issue now is cause for grave concern," says Americans United Legal Director Steven K. Green. "The justices have blocked most forms of taxpayer support for religious schools. We are concerned that some members of the court want to let down their guard."

Until recently, the court relied on a three-part standard to decide tax-aid-to-religion cases and many other church-state controversies. The "Lemon Test" -- named for the 1971 Lemon v. Kurtzman decision -- states that a law violates the Constitution if it does not have a secular legislative purpose, if its primary effect is to advance or inhibit religion or if it fosters "excessive entanglement" between church and state.

Church-state separationists like the Lemon Test because, properly applied, it results in a relatively high wall of separation between religion and government. But the Supreme Court's support for the Lemon standard has clearly waned in recent years, and anti-separationist justices have repeatedly criticized and even ridiculed it.

However, the court appears to lack a consensus on a replacement test, thus putting Lemon on judicial life support. The Agostini case hands the justices an opportunity to fashion a new standard.

How did a 12-year-old controversy that everyone thought was settled get resurrected? The answer stretches back more than three decades to 1965, when Congress passed the Elementary and Secondary Education Act (ESEA). A provision in that legislation -- then known as "Title One" and now called "Chapter One" -- finances remedial education classes for disadvantaged students, including those enrolled in religious and other private schools. (Parochial schools became beneficiaries at the behest of the Roman Catholic bishops, whose allies in Congress blocked the bill until the concession was made.)

Because of its provisions mandating government aid to students at private sectarian schools, Chapter One has been a persistent thorn in the side of church-state separationists, spawning decades of lawsuits in the federal courts. One of those cases, Aguilar v. Felton, reached the high court in 1984. Although the justices did not find the ESEA's Chapter One provisions unconstitutional, they ruled that the manner in which the services were delivered in New York City violated the First Amendment.

New York, like many urban areas, sent public school teachers into parochial and other private institutions to offer remedial instruction. With Catholic students, the lessons took place in buildings decorated with religious symbols in an atmosphere deemed "pervasively sectarian." Further, there were no effective safeguards in place to make certain that the teachers did not offer religious instruction.

Written by Justice William Brennan (now retired), the decision in Aguilar gained the support of a slim majority of five justices who ruled that publicly financed Chapter One teachers could not offer services inside parochial schools. Allowing them to do so in an environment saturated with religion, the court declared, created too much entanglement between church and state.

Coming down in the middle of the Reagan years, Aguilar raised the hackles of the pro-voucher ideologues who dominated the U.S. Department of Education. Bennett, a Catholic school enthusiast who often criticized public education, soon began working on his vow to find ways around the ruling. Not long after the decision was handed down, he attacked the wall of separation in an interview with Education Week. According to Bennett, there really is no wall, only "a pile of stones here and a pile of stones there."

Bennett's primary scheme for circumventing Aguilar called for providing expensive "mobile sites" (vans and mobile classroom units) at taxpayer expense to parochial schools, where remedial education classes could technically occur "off site." Bennett also ordered states to pay for vans and parochial school Chapter One services before allocating any money to public schools, the so-called "off the top" funding mechanism.

Americans United filed lawsuits against this set-up in three states, arguing that it was a transparent ploy to avoid the high court's decision. After years of litigation, the cases resulted in some initial victories, but these rulings were later over. turned at the appellate level by Reagan-era judges, many of whom were lax on upholding church-state separation.

Bennett's refusal to abide by Aguilar also sparked a new round of court action in New York City. The National Committee for Public Education and Religious Liberty (PEARL), a coalition of public education and religious liberty organizations (including Americans United), had brought the Aguilar case challenging Chapter One, and in 1987 the group filed a new lawsuit, asserting that New York City's plan to circumvent Aguilar was equally unconstitutional.

These days New York City uses a variety of methods to deliver Chapter One services to parochial schools -- "mobile classroom" vans, so-called "passive" computers in class, take-home portable computers and the creation of "neutral sites" -- rooms near Catholic schools that have been stripped of sectarian symbols where public school teachers offer instruction.

Taking its cue from Bennett's dodge, the city still relies heavily on vans. The arrangement is extremely expensive; 126 vans are leased at an annual cost of more than $106,000 apiece, which includes salaries for security personnel and drivers.

The end result is that New York's Catholic schools are being bombarded with federal dollars. In court PEARL argued that religious school authorities were essentially dictating the circumstances under which they would accept federal money -- a luxury recipients of other government aid programs rarely enjoy. The organization pointed out that the best solution would be to offer remedial instruction for parochial school students in nearby public schools. Parochial school officials, however, have flatly ruled out this option.

Lisa H. Thurau, PEARL executive director, points out that under New York's current arrangement, 100 percent of parochial school students who are eligible for Chapter One aid receive it, while only 55 to 60 percent of eligible public school students do. With the take-home computer scheme, for instance, parochial school students receive access to advanced technology at a time when many of the city's public schools students never even see a computer, let alone get one to use at home.

"What we're doing is subsidizing the existence of religious schools by providing this aid," Thurau told Church & State. "To add insult to injury, they [religious schools] have been able to demand how this aid will be provided. That's an outrage. At the same time, religious schools kick the belly of public schools and say they are better."

Asks Thurau, "Why has this school board decided to put the interests of the religious schools first? That is exactly what they have done, and that is exactly what Secretary Bennett did. I don't see how this is justifiable."

Despite the important issues PEARL's case raised, the group's challenge languished in a federal court for nine years. In the interim period, the composition of the federal court system began to change. Hundreds of Reagan appointees were seated, including three new Supreme Court justices. In other church-state cases, these new appointees never hesitated to go out of their way to criticize the Aguilar decision, maintaining that it had been "wrongly decided."

The high court's anti-separationist wing has been especially critical of the '85 ruling. Justice Antonin Scalia has called Aguilar "hostile" to religion and once opined that it should be "overruled at the earliest opportunity." Joining Scalia are church-state swing voters like Sandra Day O'Connor, who dissented in the original case and has since criticized Aguilar (but in terms less harsh than Scalia). Over the years, a majority of five justices has criticized Aguilar in one case or another.

Seizing on this criticism, education officials in New York are arguing that they should no longer have to comply with the Aguilar decision and have petitioned the high court to in effect declare it null and void.

Religious groups that operate private schools and oppose a high wall of separation between church and state were quick to latch onto the current controversy.

"We feel that since the original case, many, many students in non-public religiously affiliated schools have suffered," the Rev. Thomas McDade, secretary of education for the U.S. Catholic Conference, told Religion News Service. "There was no practicality whatsoever in the 1985 decision. It only hurt children and put an excessive burden on the strained resources of the U.S. government."

Greg Baylor, assistant director of the Christian Legal Society's Center for Law and Religious Freedom, echoed those sentiments. "Aguilar," he asserted, "was one of the worst church-state cases that's been decided, and it's high time that it was overruled."

In addition, other groups that oppose church-state separation have climbed on the bandwagon. The Becket Fund for Religious Liberty, a conservative Roman Catholic-oriented legal organization, has filed a friend-of-the-court brief urging the justices to overturn Aguilar. Clint Bolick's Institute for Justice filed a brief calling for court approval of religious school vouchers. The Knights of Columbus also urged the justices to allow religious school aid.

Another brief was filed jointly by several organizations that have been critical of the high court's churchstate rulings, including the Christian Legal Society, the Association of Christian Schools, the Catholic League for Religious and Civil Rights, the Southern Baptist Convention's Christian Life Commission, the Family Research Council, Focus on the Family and the National Association of Evangelicals.

The brief was written by Michael McConnell, a University of Chicago law professor who is the leading advocate of the "accommodationist" school of church-state thought, which holds that government can fund religious organizations on the same basis as secular groups. The U.S. Catholic Conference the lobbying arm of the Roman Catholic hierarchy -- has filed a brief not only requesting Aguilar's demise, but also taking pot shots at Thomas Jefferson's "wall of separation" metaphor.

The bishops are also making their views known in other ways too. A high-powered Washington law firm, Williams and Connolly, has jumped into the fray and is representing "intervenor parents," including Rachel Agostini, for whom the case is named.

The firm, which has close ties to the Catholic bishops, has been representing parochial school parent groups in tax aid cases for decades. These "parent" front groups give the bishops an additional opportunity to get the hierarchy's views before the federal courts.

The campaign to overturn Aguilar has also received a boost from the Clinton administration. Last year the solicitor general's office filed a friend-of-the-court brief asking the Supreme Court to take the case. Acting Solicitor General Walter Dellinger argued that "hundreds of millions of dollars" were diverted from education to administrative costs because of the need to comply with the Aguilar decision. (Although Presiddent Bill Clinton opposes federal funding for vouchers, he has frequently assured Catholic groups that he will not interfere with the various types of government aid parochial schools already receive.)

In the Agostini case, the administration takes a middle-of-the-road course. The solicitor general's office argues that Aguilar can be overturned without upsetting other church-state precedents.

The separationist perspective will be well represented at the high court. Americans United and other civil liberties and public education groups are preparing briefs that will argue against the use of taxpayer dollars to pay for religious instruction.

Can Aguilar survive? The picture remains murky. A majority of justices on today's high court have expressed dissatisfaction with the ruling, but beyond that the justices remain deeply divided on churchstate issues.

Recent decisions on government funding of sectarian enterprises have been mixed. In 1995 the high court ordered the University of Virginia, a state-owned, publicly funded institution, to give student activity fees to a religious newspaper (Rosenberger v. Rector and Visitors of the University of Virginia). Although not a parochial school aid case, Rosenberger is frequently cited by voucher advocates who argue that it lays the groundwork for voucher programs. (Separationists disagree, asserting that the holding was quite narrow.)

In 1993 the court upheld the provision of a publicly funded interpreter to a hearing-impaired parochial school student (Zobrest v. Catalina Foothills School District). But in 1994 the justices struck down the creation of a special "public" school for a community of Hasidic Jews north of New York City (Board of Education of the Kiryas Joel Village School District v. Grumet).

Complicating the Agostini case is the fact that the Supreme Court could decide it without examining the church-state question at all. New York education officials are in effect asking the justices to declare Aguilar a dead letter without the normal procedure of bringing a new case up through the lower courts. Their briefs cite an obscure provision of the code governing the procedures of the federal court, but it's far from clear that the Supreme Court will accept New York's reasoning.

The high court could decide that the provision -- known as the Defendants Rule 60(b)(5) -- was improperly invoked and dismiss the case entirely. Hence, the Agostini case could be decided on narrow procedural grounds and never even approach church-state relations. (The high court has asked both sides to address the procedural question and the church-state issues in their legal briefs.)

New York is pressing the high court to take an unprecedented action. In the Clinton administration's brief urging the court to take the case, Dellinger admitted as much, writing, "we are not aware of any instance in which the Court has reconsidered the merits of a prior decision in the same case in a procedural posture similar to this one."

If the Supreme Court demurs, New York officials and other Aguilar opponents will have to file a fresh legal challenge and bring it up through the federal court system step by step, a process that could take years.

On the other hand, should the court accept New York's argument, the repercussions could be staggering for many legal controversies, including contentious church-state issues. The justices could begin resurrecting cases from decades ago and overturning them.

Because of its potential to broadly affect church-state relations and U.S. law generally, Agostini could be one of the most important cases the high court hears this term. A decision is expected by early July.

"We're concerned that any attempt to reopen Aguilar and overturn it will lead inexorably to the conclusion that sectarian control of federally mandated resources is acceptable," Thurau says. "That's a short jump from there to vouchers and to any kind of reinterpretation of [church-state separation]. So we're very worried about this. It opens a Pandora's box."

Americans United Executive Director Barry W. Lynn agrees. "This case could signal a new era of church-state relations at the Supreme Court," observes Lynn. "The justices are clearly searching for a new formula to decide cases challenging government funding of religious institutions. We must encourage them to depend on a standard that respects the wall of separation between church and state."