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Court Lowers Wall Dividing Church, State...

Reversing a past decision, justices allow public school teachers to teach in some religious-school classrooms

For 25 years the United States Supreme Court has relied on a fairly strict interpretation of the separation of church and state - not allowing, for example, public school teachers to enter parochial schools to teach remedial courses in math and reading.

Yet in what amounts to a significant change in First Amendment law, a divided high court yesterday modified its previous stand on "separation" - allowing a more relaxed standard to prevail.

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The bottom line of the ruling is this: By a narrow 5-to-4 vote, the court decided that allowing public teachers to walk onto the grounds of religious schools and teach remedial math, or English, or science to disadvantaged students does not threaten the nation's cherished wall between church and state.

The opinion is immediately controversial because it not only appears to lower further the dividing wall between church and state, but also overturns a major church-state ruling of the late 1980s. Yesterday's reversal bothers some constitutional scholars, as well as the four dissenting justices, who feel the integrity of the court's decisions are compromised.

The majority opinion, written by Justice Sandra Day O'Connor, suggests that public school teachers in New York City are part of a carefully constrained program that does not "excessively entangle" them in religious doctrine or promotion. Harm done to children in religious schools who do not receive the remedial aid, she writes, is "a manifest injustice" that allows the court to rule.

"This continues a recent trend in the court to be more sympathetic to government support of education in religious schools," says Mark Tushnet, a First Amendment scholar at the Georgetown University Law School here.

Wider implications

The ruling, some legal analysts say, could give new ammunition to parents who send their children to parochial schools - and who want to be included in public education funding such as tax breaks and vouchers.

In New York City and elsewhere across the country, school administrators expect yesterday's decision will save millions of dollars a year in federal program costs for remedial education students.

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Justice O'Connor's opinion appears to further enshrine her "endorsement test" as the new high-court standard, replacing a historic three-part test that had governed federal and state courts in matters of religion in public life since 1972. That standard, derived from the case of Lemon v. Kurtzman, said a state could not advance, entangle, or substitute religion in the public sphere.

O'Connor's decision says New York City's Title I remedial-education program does not violate any of the three primary criteria the court uses to evaluate whether government has advanced religion. She said the program does not result in governmental indoctrination, define its recipients by reference to religion, or create an excessive entanglement.

Further, O'Connor's opinion emphasized that government could provide aid so long as the program was scrupulously careful to avoid any religious content. The standard is a significant departure from the Lemon test.

"This seems like O'Connor's effort to establish what she sees as a neutral position," says Christine Compston of Western Washington University in Seattle, an expert on aid to sectarian schools. "But I'm not sure how successful this interpretation will be. People view neutrality in a variety of ways."

Teaching in a van

Under the previous standard, public school teachers were not banned from helping parochial students, but they were barred from teaching at any religiously affiliated school. That would excessively entangle government and religion, the court said back then.

As a result, remedial help has been offered in mobile vans parked just off parochial-school property, in public-school classrooms, or by computer. In New York alone, the extra cost has topped $100 million since 1985. US Department of Education officials say the annual cost nationwide could be $15 million.

Chief Justice William Rehnquist and Justices O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas form the majority.

The four dissenters accused the court of abandoning the "responsive, non-agenda-setting character of this court." They leveled that criticism because the majority chose to consider the constitutional issues of the dispute only after deciding that a procedural hurdle was surmountable.

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