Loose Bricks in Church-State Wall

Supreme Court hears case Tuesday on religious schools and tax dollars.

Several times a day, clusters of eager children climb into three huge vans that park, generators rumbling, a block from Sacred Heart Elementary School in the Bronx.

The vans are classrooms on wheels, where the kids from Sacred Heart must go for remedial math and reading. Because these lessons are funded with federal money the US Supreme Court has ruled that it would violate the "separation of church and state" for public school teachers to enter and work in parochial schools.

These "classrooms" are one way to ensure that federal dollars can keep flowing to children in religious schools in cities nationwide. Yet at $105,000 a year each to lease, the vans divert millions in federal aid - money the Clinton administration and the New York Board of Education say is better spent on remedial instruction itself.

Now, in an unusual move, the Supreme Court tomorrow will rehear the 1985 New York City case that spawned such awkward answers. The result could be a major ruling by a court that has been steadily lowering the historic "wall of separation" between church and state.

For many constitutional scholars and First Amendment advocates, tomorrow's case is part of a saga as old as the republic. It dates to 1784 in Virginia, when Thomas Jefferson and James Madison tried in vain to pass the first law separating church and state. Not until Patrick Henry proposed that states pay the salaries of teachers in religious schools did Virginia pass a law forbidding state sponsorship of religion. That law eventually became the First Amendment, which bars the "establishment" of religion.

"The issue isn't the vans. The issue is church-state separation," says Christine Compston of Western Washington University near Seattle, an expert on aid to sectarian schools. "The costs of education are high. But the solution is not to start state funding of private [religious] schools."

Yet the 1985 case is significant for another reason - it's the first time in memory that the Supreme Court has agreed to re-hear a case it has already decided. That bothers many legal scholars, who say this could lead to a retrying of cases whenever political winds shift, thus damaging public trust in the highest court of the land.

The case was revived last fall when, a week before the presidential election, the Clinton Justice Department invoked a rare procedural rule asking the high court to overturn the original 1985 New York decision, known as Aguilar v. Felton.

The federal procedure is invoked when a ruling that determined the outcome of a second case is overturned, due to errors or new information. For Aguilar, however, no such underlying faulty case exists. Rather, in an unusual twist, the Justice Department argues that because the Aguilar decision has been criticized since 1985 by a majority of sitting Supreme Court justices, it is flawed and can itself serve as the offending case.

"Maybe there is another case where a Supreme Court ruling has been done this way," says Erwin Chemerinsky of the University of Southern California law school. "But I can't think of it. This is not a good development."

The original 1985 decision was a 5-to-4 ruling written by Justice William Brennan, who argued that the religious mission of parochial schools should not be aided by employees of the state. William Bennett, US secretary of Education at the time and a parochial-school champion, called the decision "crazy" and "badly reasoned." Mr. Bennett subsequently got Congress to fund an elaborate system of vans to serve parochial schools offsite, as they do for Sacred Heart.

Between 1965, when Title I began as part of President Johnson's Great Society, and the 1985 Supreme Court ruling, public teachers were allowed to enter parochial schools so long as they were not exposed to religious symbols, such as crucifixes, which were taken down or covered in cloth when a state teacher entered the room. After the 1985 decision, public schools, often within walking distance of parochial schools, offered their classrooms as neutral sites for remedial help. But the majority of parochial schools declined.

Catholic parents and teachers complain the current remedial method wastes valuable instruction time. Margaret Figuerosa, a nurse and single mother in Brooklyn, says her seventh-grade daughter, Lisa, must ride seven blocks from St. Francis Xavier School to a neutral site. "Her grades started to come down in other classes," Ms. Figuerosa says. "I don't think a child should be penalized because her parent had the foresight to put her in a Catholic school."

For teachers, there's the frustration of limited class time, sudden cancellations due to weather, and the inconvenience of teaching in a truck, with no bathroom. In Ron Bellin's van, the rumble from the generator is so loud he often can't hear his students. "It's even worse in cold weather because we have a heater on, too," says Mr. Bellin, who visits Sacred Heart twice a week.

For strict separationists, the question is why any public funds should be spent at religious schools. Lawyers for the Washington-based Americans United for Separation of Church and State view this as a mistake dating to the first Great Society bill.

On the current court, only John Paul Stevens voted for the 1985 decision. Today, say experts, court conservatives like William Rehnquist, Antonin Scalia, and Clarence Thomas are nearly certain to vote against it. David Souter, Ruth Bader Ginsburg, and Stephen Breyer, along with Justice Stevens, are likely to vote to maintain the separation.

That leaves, as in many of the toughest cases before the court, the two "swing votes" - Sandra Day O'Connor and Anthony Kennedy. Both have criticized the Aguilar case in other writings, and both have whittled at the current standard of Supreme Court review for church-state decisions.

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