College Students Retry Supreme Court Case

FROM the ``all rise,'' to the black robes of the justices, to the lights that indicated when the time allotted for argument was about to run out, this could have been the Supreme Court of the United States.

In fact it was an imitation of the nation's highest court, but one with an eye for authenticity. The matters being argued here, through a lively exchange between lawyers and ``justices,'' were the same argued in late March before the real court in Washington.

The case was Board of Education v. Grumet, which raises probing questions about how far government can go to accommodate the needs and traditions of a religious minority without violating the US Constitution's ban against the ``establishment'' of religion.

Specifically, did state and local authorities in New York stay within constitutional boundaries when they set up a special public school, with its own district and school board, for handicapped children from the Hasidic Jewish community of Kiryas Joel, north of New York City?

The Kiryas Joel case was getting a post-Supreme Court airing in an auditorium at Connecticut College, a liberal-arts school with a taste for innovation. This particular idea - researching and rearguing a high-court case - was conceived by government professor Wayne Swanson, author of a textbook on church-state legal issues.

``When the case suddenly appeared in the news last fall,'' Mr. Swanson recalls, ``I thought it would be fun to study this case just as the Supreme Court is studying it.''

That idea sprouted into a seminar for nine students who would later serve as Connecticut College's ``supreme court.'' Swanson had his students delve into the Kiryas Joel case and all previous Supreme Court cases that bore on it. They also scrutinized the records of the various high-court justices on church-state issues.

Beyond this research, Swanson wanted his students to attend the March 30 US Supreme Court session at which Kiryas Joel would be argued, and he wanted the restaging of that event in New London to involve the same lawyers who had displayed their talents in Washington.

The first task, getting 10 seats (the nine seminar members plus Swanson) in the Supreme Court audience, took some doing. A letter from the students to each justice explaining their project finally did the trick. The second task, getting the lawyers to repeat their performance at Connecticut College, was judged nigh impossible by Swanson's colleagues.

IN fact it proved easy. Nathan Lewin, the Washington attorney who argued the case for Kiryas Joel and is a veteran of many appearances before the high court, says the idea interested him right away. He remembered the comment by Robert Jackson, a former US solicitor general and Supreme Court justice, that his best argument was always made lying in bed the night following a day in court, thinking about how he should have done it. ``Now I can make that argument,'' Mr. Lewin joked.

His adversary was Jay Worona, general counsel for the New York State School Boards Association, which brought the original challenge against the special school district in Kiryas Joel. Mr. Worona says he was very impressed that ``a school trying to teach government would actually walk the students through a process like this.''

The students were pretty impressed by the project themselves. A number of them mentioned how many times their own positions on the case shifted as they dug into the case. ``We saw what a difficult job being a justice is,'' Cynthia McCollum says. ``You vote with integrity, and you hope you're doing the right thing by the law.''

And the deeper you plunge into a case, the more ``human issues'' stand out, Chad Marlow says. ``What are the actual events? What are the lives of the children involved? These are fundamental issues.''

Emotional ones, too. But there was nothing emotional about the way this ``Supreme Court'' pursued its questioning of the lawyers. The students zeroed in on the applicability of the Court's test for judging church-state matters - whether or not a governmental action is secular in purpose. Did the case involve unwarranted favoritism toward a particular religious community, or was it a justifiable accommodation of religious diversity?

Responding to a question from the audience after the hour-long argument period was over, Lewin says, ``The questions were very good - frequently better than the Supreme Court.''

And the decision? All nine student-justices had to write an opinion to get a final grade from Professor Swanson. The majority (8 to 1) found for Mr. Worona's clients. In their view, New York's allowing a special, publicly supported school district was unconstitutional on its face, going too far in lowering the wall between church and state. It will be late June, probably, before we know if the nine justices in Washington concur.

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