Rebuilding Jefferson's Wall

By Michael S. Serrill

! Conservative and liberal observers were agreed. Like it or not, the U.S. Supreme Court in recent years had seemed to favor some erosion of Thomas Jefferson's sturdy "wall of separation between church and state." Both sides expected the trend to continue after the court scheduled new religion cases this term. But last week, as it recessed for the summer, the court confounded the prognosticators. For the third time in a month, the Justices took a tough stand against allowing government and religion to mix.

In a pair of 5-to-4 decisions, the court ruled that officials in Grand Rapids and New York City may not send public school teachers into parochial schools to provide remedial or accelerated classes for disadvantaged or bright children. Justice William Brennan, who wrote both majority opinions, concluded in the Grand Rapids case that by physically entering parochial schools, public school teachers are supplying not only a direct subsidy but also that "crucial symbolic link between government and religion" that the Constitution does not allow. The New York ruling will affect parochial school participation in a 20-year-old federal education program that aids remedial classes. Some 183,000 of the 4.7 million federally assisted children attend private schools, most of them religious. Special classes taught by public school teachers in parochial schools will now have to end or be taught in other ways, perhaps off parochial school grounds in portable classrooms or other facilities.

The school decisions came just one week after the high court struck down by an 8-to-1 vote a Connecticut law that gave workers an absolute right to take their Sabbath day off, and four weeks after the court voted 6 to 3 to invalidate an Alabama law that allowed a moment of silence for prayer in the public schools. The Reagan Administration was on the losing side of all three disputes. Denouncing the court's "fastidious disdain for religion," Secretary of Education William Bennett complained that the latest rulings will make it "vastly more difficult to provide education service to some of America's neediest schoolchildren." Bennett's view echoed the lament of dissenting Chief Justice Warren Burger, who wrote in the New York case that "it borders on paranoia to perceive the Archbishop of Canterbury or the Bishop of Rome lurking behind programs that are just as vital to the nation's schoolchildren as textbooks."

By any reckoning, the high court's "parochiaid" rulings have walked, or wobbled along, a fine line, with public assistance to religious schools sometimes rejected, sometimes approved. In certain circumstances, as Burger noted, a state may lend textbooks to parochial students, and it may pay their bus fare. In 1983 the court upheld a Minnesota law permitting parents to deduct private school tuition from their state income taxes. The court's increasing tolerance toward state-church collaboration in general seemed even clearer when the Minnesota ruling was followed by two decisions allowing a publicly paid legislative chaplain in Nebraska and a publicly sponsored creche in Rhode Island.

The three opinions appeared to weaken a major rule announced in the 1971 case of Lemon vs. Kurtzman. But in all the newest religion cases, the court forcefully reaffirmed its commitment to the Lemon test, which makes three demands on any religiously oriented legislation: that it have a secular purpose, that it neither advance nor inhibit religion and that it avoid "excessive entanglement" between government and religion. Justice Brennan's application of the test in the New York school case left officials in what dissenting Justice William Rehnquist called a "catch-22." City school officials argued that they took special care not to advance religion by closely monitoring their remedial public school teachers. But this very monitoring process, Brennan concluded, created excessive administrative entanglement.

"The Lemon test is a lemon," protested Forest Montgomery, spokesman for the National Association of Evangelicals. The American Civil Liberties Union, however, called the rebuilding of church-state separation a "welcome exercise in true conservatism." A.E. Dick Howard, the University of Virginia law professor who represented taxpayers challenging Grand Rapids' school program, acknowledges that the cases return the court to the mainstream of its own past decisions. But the close vote "shows there is much to be fought over with the next vacancy on the court," he noted. "The majority of five includes most of the older Justices." Says University of Michigan Law Professor Yale Kamisar: "This is one of those never ending stories."

The religion rulings were among 31 handed down by the court in its final six decision days. Two other significant cases:

-- In a controversial opinion the court ruled 5 to 4 that it was an unfair labor practice for a union to fine members who resign during a strike contrary ; to union rules. The ruling upheld an interpretation of the labor laws by the National Labor Relations Board, which is now dominated by Reagan appointees.

-- Because the mentally retarded are often the victims of discrimination, a federal appeals court had ruled that laws affecting them are subject to a special level of judicial scrutiny, as are laws affecting minorities and women. By a 6-to-3 vote the Supreme Court rejected this approach. But in the specific case before it, the court struck down a zoning decision of Cleburne, Texas, to block a group home for the retarded, finding that "irrational prejudice" was involved.

The court's final weeks appeared to be somewhat less harried than in recent years. The total of signed opinions, 139, was down twelve from last term, suggesting that the Justices may be trimming their much-complained-of work load by the sensible expedient of deciding not to decide as many cases. The court's overall direction seemed slightly less conservative. The religion cases were the most important sign of that. Another indication was that the Reagan Administration, which last year had prevailed in 85% of the cases it entered, won only 79% this year.

With reporting by Anne Constable/Washington