The Doomsday Walls of Church-State Separation.

Fans of cliff-hanger movies know the scene where the hero is about to be crushed between two slowly converging walls. Well, intrepid public school leaders, you (of course!) are the heroes and heroines in this adventure and the walls of church-state separation could do you in. Unfortunately, escape will not come in the next issue of United States Law Week.

The problem is that the U.S. Supreme Court's recent decisions in two cases involving church/state law now threaten to make public education less attractive to certain parents. Their joint impact will be to drive a large segment of religiously motivated parents out of the public schools and into increasingly state-subsidized private religious schools.

The first case, Santa Fe Independent School District v. Doe, concerned the ability of public high school officials to permit student-led, student-initiated prayer at student football games. In a 6-3 decision, the court held that the school's involvement violated the First Amendment's prohibition against establishment of religion.

Despite the attempts of the Santa Fe, Texas, district to subject the prayer to student referendum and election of the student speaker, Justice John Paul Stevens, writing for the majority, emphatically "refuse[d] to turn a blind eye to [the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of] ... endorsing school prayer. Therefore, the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation."

Public school officials, then, cannot even infinitesimally promote organized religious observance among students. Allowing truly private observance and permitting religious clubs to exist along with other noncurricular clubs are different matters, but the merest hint of public sponsorship or endorsement will be a death blow. Thus the wall between church and state on public school grounds remains, in the late Justice Hugo Black's phrase, "tall and impregnable." Parents and students who desire public school support for religious practice are out of luck.

This is not really a change from the status quo, but compared to the hopes of advocates for greater public tolerance of religious activity, it is a jolt to realize that not even a strongly conservative court will crack this part of the wall.

Financial Gain

While public school parents hoping for more favorable treatment concerning students' religious practice will not get satisfaction, they will get spiritual and financial satisfaction in the nation's religious schools. In its second major church/state case last term, Mitchell v. Helms, the Supreme Court overruled its own precedents to hold that religiously neutral instructional materials, such as computers and software, can be provided by the government to religious schools, despite the possibility that those schools might divert the assistance to sectarian purposes.

In a plurality opinion written by Justice Clarence Thomas, the court rejected arguments that the government aid was unconstitutional because it provided indirect aid to religious activities and was divertible to religious instruction. As explained in a concurring opinion by Justice Sandra Day O'Connor, such government aid passes scrutiny under the First Amendment as long as the assistance has a secular purpose, is provided neutrally to public and nonpublic schools, does not directly aid in teaching religion, and does not result in excessive entanglement between church and state.

As a result of this expansive analysis, the gates are now largely open to government provision of staff and materials for teaching secular subjects in religious schools.

Ongoing Ramifications 

The result of the two decisions is that as public schools seem evermore hostile to organized religious expression, private schools can receive additional public assistance for their secular instruction and incidental services, such as transportation. Tuition and private donations need support only part of the school's mission. With increased government aid, private school administrators can decide to reduce tuition or increase services, in either case making their schools more attractive to public school parents, especially those seeking school support for religious activity.

Developments since the Santa Fe and Mitchell cases bear out administrators' continuing difficulties in dealing with the decisions' fallout. For example, at a recent school-sponsored pep rally near Fort Worth, Texas, a high school football player used the microphone to ask the crowd to join in a voluntary prayer. "Is it just the microphone that makes the difference?" asked the school district. Or when announcing other community events, must principals exclude mentioning a "Rally Round the Flag Pole" prayer meeting outside the school? Would having a student make the announcement cure the problem of perceived church/state endorsement? And how will the Supreme Court deal with the continuing issue of religious organizations' access to school premises when it decides Good News Club v. Milford Central School District later this term?

The Good News Club case deals with an appellate court decision upholding a New York school district's ban of meetings on school property by a "quintessentially religious" organization, even while the district permitted meetings of the Girl Scouts and 4-H Club.

These and hundreds of other continuing questions show how the constitutional walls continue to move inward on the public schools. By its recent rulings, the Supreme Court has made them less and less attractive to large numbers of parents seeking religious outlets in their children's education. At the same time, the court has permitted private religious instruction to become a more attractive alternative. And the dilemma is all-the more frustrating because both the Santa Fe and Mitchell decisions are well-grounded constitutionally, not the mere result of specific presidential appointments.

As much as we might want to blame the vagaries of the Supreme Court appointment process, this encroachment is not the mere result of presidential politics. It evolves from important constitutional principles of freedom and tolerance, as well as from similar tensions within our national character.

Easy escape from the converging doomsday walls cannot be manufactured through some screenwriter's sleight-of-hand. No constitutional miracle will stop their steady closure. The political and legal urges to keep religion out of public education and assist religious school students cannot be wished away. And both urges-sanctioned by the Supreme Court-put our heroes in mortal peril.

David Bloomfield, former general counsel to the New York City Board of Education, is associate professor of educational administration and policy at Brooklyn College of The City University of New York, 2900 Bedford Ave., Brooklyn, N.Y. 11210.