c. 1997 Religion News Service

WASHINGTON _ Attorneys for the U.S. Justice Department and the city of New York have told the Supreme Court that the justices made the wrong decision 12 years ago when they barred public school teachers from entering religious schools to teach remedial programs in English and math.

The immediate issue in what some observers believe could be a pivotal church-state case, is how so-called Title I federal education funds can be used. The funds go to local public school districts to provide supplementary programs for economically disadvantaged and underachieving students whether in public, private or religious schools.

Equally important, the justices could choose to use the case _ Agostini vs. Felton _ to provide new criteria in the way decisions involving separation of church and state are handled.

Steven T. McFarland, general counsel for the Christian Legal Society, urged the Court to do just that, saying the Court has the opportunity to”restore coherence and predictability to the law of religious liberty.” The case on which the justices heard oral arguments Tuesday (April 15) is a challenge to the Court’s ruling in the 1985 case Aguilar vs. Felton, in which it said public school teachers could provide remedial help to parochial school students, but could not do so inside the religious schools.

New York and parents of parochial school students challenged the ruling, arguing compliance with the Aguilar decision makes it too expensive to cover all students needing the aid and provides inferior education to students in religious schools.

Since the Aguilar ruling, New York has operated a fleet of mini-vans outside religious schools that Paul A. Crotty, corporation counsel for New York, told the nine justices were”noisy, cramped with 10 students and their teacher and without bathrooms or storage space.” Crotty said Aguilar has meant that all of New York City’s school children are disadvantaged due to the large expenses incurred in operating the vans. He told the court that New York has spent $100 million on buses and related expenses since the court’s earlier decision.

Crotty estimated there are about 22,000 city students in religious schools who qualify for the federal assistance and are adversely affected by the Aguilar ruling.

Acting U.S. Solicitor General Walter Dellinger said the Clinton administration supports New York in seeking to allow the public school teachers to enter parochial schools. Dellinger argued that the Court could overturn its earlier decision without any major revisions to its previous church-state rulings.

Justice Antonin Scalia asked Dellinger where the line should be drawn between providing assistance for supplementary education and regular education within religious schools.”What’s distinct between a remedial and a regular subject ?”asked Scalia,”Is there no bright line?” Dellinger responded that Title I was never meant to raise the question of taxpayer support for regular education in religious schools and the program was meant solely as a support to benefit low income and needy children.

Arguing in favor of the Aguilar ruling, Stanley Geller of the National Committee for Public Education and Religious Liberty said allowing public school teachers to provide education inside parochial schools would violate the Constitution’s provision separating church and state.

Geller did not argue against parochial school students receiving federal benefits, but insisted they should receive the aid at”religiously neutral sites.””Teachers are different, teachers are uncontrollable and very unprofessional,”Geller said in response to a question from Scalia as to how federally financed teachers in religious schools differed from other services offered such schools by the government, including books and police and fire department assistance.

That drew a sharp retort from Justice Sandra Day O’Connor.”Do you really think that this Court senses that teachers are unprofessional and uncontrollable? That flies in the face of all tradition,”O’Connor said. She noted New York operated Title I for 19 years without a single incident of a public school teacher injecting religion into remedial education until the Supreme Court said their practices failed to safeguard the so-called”establishment”clause creating the division between church and state.

O’Connor and four other justices have suggested in previous church-state decisions that Aguilar should be revisited. It was those opinions that gave New York and the U.S. Department of Education the hope the Court would overturn it.

The justices are expected to vote Wednesday (April 16) on the case but a final decision is not expected until near the end of the term in early July.

MJP END GAMBER