Supreme Court to consider education-related cases
9/23/03 -- The U.S. Supreme Court will rule on a case this term that could significantly weaken the line between church and state -- and open the door to more school voucher programs across the country.
That case, Locke v. Davey, was among the cases discussed by a panel of attorneys at a media briefing on the Supreme Court Sept. 16 sponsored by NSBA's Office of the General Counsel.
The key issue in Locke is, "in certain circumstances, can the state be required to pay for religious education?," says Elliot Mincberg, vice president and legal director for the People for the American Way Foundation.
The case involves Joshua Davey, who was awarded a college scholarship by the state of Washington.
Davey sued the state after he declared a major in pastoral ministries and the state revoked the scholarship. The state program prohibits scholarships to be used for religious instruction, as required by the state constitution.
The 9th Circuit U.S. Appeals Court ruled in favor of Davey, charging that the state's action violated Davey's constitutional right to free exercise of religion.
According to Mincberg, advocates for Davey -- generally the same groups promoting vouchers -- argue that the state constitution's ban on the use of state funding for religious purposes violates the guarantee of free exercise of religion in the U.S. Constitution. Many state constitutions have such provisions, known as Blaine Amendments.
"The Supreme Court could go even farther than knocking out Blaine amendments," Mincberg says. It could even support the argument that "a state is required to pay for religious education."
He doubts that the Supreme Court would go that far, but says "it's quite possible that even a narrow opinion could set the stage for all kinds of litigation."
NSBA filed a brief urging the Supreme Court to support the state of Washington in Locke.
The Supreme Court has not yet announced whether it will hear Newdow v. U.S. Congress, which involves the constitutionality of having students recite the Pledge of Allegiance in class because it contains the phrase, "under God."
If the Court decides to hear the case, Mincberg says, it might stick to the issue of whether the plaintiffs have standing and not get into the merits of the constitutional issues.
Mincberg says it is ironic that "those who support the 'under God' phrase argue that it has no religious meaning;" they say the pledge is purely a "ceremonial statement."
NSBA has filed a brief urging the Supreme Court to hear a case involving the longstanding deRolfe litigation. This case addresses the Ohio legislature's failure to adequately fund public education after being directed to do so by the Ohio Supreme Court.
NSBA General Counsel Julie Underwood says the issue of funding adequacy is of "incredible importance to U.S. public schools," particularly now that so many state budgets are in the red and lawmakers are considering cuts in education.
"This case is really asking the Court whether individual plaintiffs have a remedy once a state Supreme Court finds they have a right to an adequate education," Underwood says.
She notes that 44 states have school finance cases that have been recently resolved or pending, and 34 states have adequacy cases.
During the Supreme Court's previous term, the most significant case involving education is Grutter v. Bollinger, which upheld the University of Michigan law school's use of a race-conscious admissions policy.
The key finding in Grutter is the Court's statement that diversity in higher education is a compelling state interest, says Patricia Brannan, an attorney with the Hogan and Hartson law firm in Washington, D.C.
Although the decision directly applies to higher education, Brannan says, it does give some guidance to school districts. For example, a district seeking to promote diversity could use race-conscious policies to assign students to an academically comparable school offering similar programs.
In the majority opinion, Justice Sandra Day O'Connor wrote that the Court expects such policies on racial preferences will no longer be necessary in 25 years.
Brannan calls that statement "a mandate for the K-12 pipeline to change." She says more students will have to come out of public education prepared for higher education at competitive universities.
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| Reproduced with permission from the 2003 issue of School Board News. Copyright © 2003, National School Boards Association. Opinions expressed in this newspaper do not necessarily reflect positions of NSBA. This article may be printed out and photocopied for individual or educational use, provided this copyright notice appears on each copy. This article may not be otherwise transmitted or reproduced in print or electronic form without the consent of the Publisher. For more information, call (703) 838-6789. |