c. 1997 Religion News Service

UNDATED _ On the far side of the parking lot for Maternity of the Blessed Virgin Mary Roman Catholic elementary school in Chicago, public school teacher Christina Delaney runs English language vocabulary drills and reading lessons for nine immigrant children crammed into a van called a”mobile instructional unit.” By day’s end, she will have instructed 60 children under a 1960s Great Society program that mandated remedial education for underachieving and economically deprived students in public and private schools. But Delaney is in the van because of a 1985 Supreme Court decision barring public school teachers from entering religious schools.”We waste a lot of valuable class time getting the children back and forth to the van,”said the Maternity principal, Paula Calvert, adding that the van serves only a fraction of her students eligible for the federal benefits.”The parking lot would need to be filled with little white vans for us to receive all our benefits,”she said. But, she added, there are four empty classrooms that the teachers are welcome to use.

This daily ritual could end if the Supreme Court, in revisiting the issue this term, reverses its 1985 decision in the case known as Aguilar vs. Felton. It said permitting public school teachers to enter religious schools created”excessive entanglement”between church and state.

Opponents of the 1985 ruling, however, are back in court and oral arguments in the case, renamed Agostini vs. Felton, will be heard Tuesday (April 15).

The case was brought by the New York City Public Schools, the U.S. Department of Education and parents of students in religious schools eligible for the benefits provided by the”war on poverty”program, Title I of the 1965 Elementary and Secondary Education Act.

Their lawyers will argue the High Court’s 1985 decision placed an undue burden on religious institutions, its implementation has been economically inefficient and educationally unsound, and that safeguards exist to prevent any entanglement between church and state.”I can’t see the difference between a religiously neutral site inside a school and one in the parking lot,”said Michelle Doyle, director of non-public schools at the U.S. Department of Education.”It would be fiscally better, but more important, better educationally.” Doyle said all funding remains in the control of the local public school system and no money goes directly to the religious school.

New York officials estimated the school system spends $12 million annually on vans to comply with the decision _ money they say could serve an additional 6,000 students.

According to Department of Education officials, Title I will cost $7.2 billion in fiscal 1998, of which 3 percent, or $216 million, will go to non-public school students.

In the 1994-95 school year, 6.7 million school children were eligible to receive Title I remedial instruction. Of these, 261,403 were from non-public schools. However, only 173,052 non-public school students received benefits, the majority of which attended religiously affiliated schools.

New York City decided to challenge the 1985 decision after five Supreme Court justices _ Anthony Kennedy, Sandra Day O’Connor, William Rehnquist, Antonin Scalia and Clarence Thomas _ suggested in a 1994 ruling that Aguilar should be reconsidered.

Scalia said Aguilar was hostile to religion and should be”overruled at the earliest convenience.” The city’s attorneys cited the Court’s interest in the earlier case and invoked a little-used procedural rule allowing relief from a previous judgment if the law in that area has changed as a means of bringing the new challenge.

Religious groups have found themselves on different sides of the issue.

Groups advocating a high wall of separation between church and state are opposed to the court’s reconsideration of Aguilar, fearing it may lead to future changes in how the Court examines religious issues.

The National Committee for Public Education and Religious Liberty, which filed the original suit and opposes reconsideration of the decision, said the consequences of endangering the wall of separation”will be particularly onerous at a time when funds for public education are reduced.” Americans United for the Separation of Church and State, which filed a brief supporting the Aguilar decision, said if the court addresses the issue,”the impact … could go far beyond the legality of public school teachers offering instruction in private religious schools. The Court could use the case as a vehicle to draw up a new formula for deciding church-state cases generally.” Another brief supporting Aguilar, filed by the American Jewish Congress, the Baptist Joint Committee on Public Affairs and other church-state separationists, however, acknowledges that the impact of the decision has been detrimental to education. “A blind defense of Aguilar … would be both unnecessary and unproductive,”said Norman Redlich, who wrote the AJC brief.”The precise ruling of Aguilar can change without undermining the core constitutional principles that Aguilar sought to preserve.” An opposing brief was filed by the Lutheran Church-Missouri Synod, the National Association of Evangelicals, and the Christian Life Commission of the Southern Baptist Convention, among others.”Aguilar was a decision devoid of any practical reasoning,”said Michael McConnell, a professor of law at the University of Utah and author of the brief.”I can’t imagine how anybody who cares about the children of the inner city could possibly support it.” McConnell said those opposed to overturning Aguilar are breathing”a last gasp of a particular view of the establishment clause that’s been abandoned by the Court.” The U.S. Catholic Conference also filed a brief supporting the challenge.”I think we will prevail, but I expect the bulk of the justices’ questions will not be about this case, but on how to frame the church-state issue for future cases,”said Mark Chopko, general counsel of the USCC.

He also said that religious schools’ use of federal funds is not a case of the churches trying to take over public education.”We’re not saying there should be no regulation, there has to be cooperation between government and religious institutions.” A decision is expected by late June or early July, in time for the start of a new school year.

MJP END GAMBER