High court may clarify church-state confusion

NEW YORK, Dec. 1 (JTA) — A forthcoming Supreme Court decision has the potential to redraw the rules around public funding of religious education, say legal analysts in the Jewish community.

Oral arguments in the case of Mitchell vs. Helms were heard by the high court Wednesday. The lawsuit, which began in 1985, involves a Catholic school in Louisiana that received publicly funded computers, software and library books for use in the secular studies curriculum.

A Catholic school student’s mother, concerned that her child might encounter material that had to be “secularized” to comply with the requirement that the computers and software not be used to teach religious subjects, sued a representative of the school board to contest whether the materials ought to have been supplied at all.

A federal program requires public school districts to share instructional equipment in a “secular, neutral and nonideological” way with students enrolled in nearby private or parochial schools.

But a federal appeals court in New Orleans last year struck down the practice, saying that providing educational materials other than textbooks for religiously affiliated schools violates the separation of church and state. The Clinton administration has defended the law, saying the program has safeguards intended to prevent the equipment and materials from being diverted for religious use.

A friend-of-the-court brief was filed by several Jewish organizations — including the American Jewish Committee, the American Jewish Congress, the Anti-Defamation League, Hadassah and the Jewish Council for Public Affairs, along with the American Civil Liberties Union and the American Federation of Teachers — urging the Supreme Court justices to strike down the program as unconstitutional.

The groups argue that the government should not be granting educational materials to parochial schools because it is difficult to ensure that they aren’t used to teach religion. Religious school teachers, “regardless of how well-motivated they may be,” are “simply not constitutionally acceptable guardians of the separation between church and government,” they said in their brief.

On the other side are several Orthodox Jewish groups, which also filed a brief, that back the administration’s view that loaning educational materials does not constitute a church-state violation. This coalition includes Agudath Israel of America, the Orthodox Union, the Rabbinical Council of America and the Torah U’Mesorah network of schools. Catholic organizations filed a similar brief.

The Supreme Court has, in the past, ruled that some materials may be provided to parochial schools with public funding, while others may not. The result has been an inconsistent and sometimes confusing set of rules.

“You can lend a geography book, but not a globe,” said Marc Stern, co-director of legal affairs for the American Jewish Congress, who was served as one of the lawyers for the plaintiffs.

“Court opinions in this area have been entirely muddled,” agreed Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs. This case, he hopes, will provide “a clear statement of what the principles are rather than continue to have it decided on a case-by-case basis.

“The best outcome would be a clear statement by the court” that the separation between church and state “does not require government to discriminate against religious schools, and that it’s appropriate for the government to provide financial or programmatic assistance to all schools,” Diament said.

During oral arguments, the Supreme Court justices seemed concerned about the possibility that government funding for computers, for example, might free up money that had been earmarked for computers to now buy Bibles, said those who attended the court session.

The justices’ decision could potentially relate to school voucher programs — a hot-button issue at the heart of the debate over taxpayer funding of religious schools and long a source of division in the Jewish community.

Court observers say it is important to watch whether the justices decide the case narrowly, in effect “tinkering with the margins” of how publicly funded materials are supplied to parochial schools, according to Stern, or hand down a broadly rendered decision.

“If they go broadly, and indicate that the court is looking for a new formula altogether, it has larger implications, and will tell us something about the likelihood of vouchers passing,” Stern said.

A ruling in the case is anticipated next spring.

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