WASHINGTON -- The Supreme Court seemed ready yesterday to free the government to spend more money on parochial schools. But there appeared to be a problem: how to find the right case to bring that about.
An hourlong hearing on a significant test case from New York City revealed strong sentiment among the justices in favor of overruling a 1985 decision that barred the use of public funds to pay public school teachers to offer remedial courses and other nonreligious subjects at parochial schools.
Justice Antonin Scalia, a strong advocate even outside the court for parochial education, repeatedly used his questions to lawyers to promote that kind of aid, suggesting that the court has now "crossed the line" toward endorsing public funding of the educational needs of religious school students.
The 1985 ruling allows publicly paid teachers to provide remedial teaching to parochial students, but only if they do it somewhere outside the parochial school itself. New York City now offers the program to students sitting on buses parked outside their schools, as well as at other sites -- a more expensive alternative.
The same lawsuit that led to the 1985 ruling against public funding is back before the court again, with a direct request by the New York City school board -- supported by the Clinton administration -- to overturn the 12-year-old result.
But justice after justice raised objections to doing that in the New York case, so the court might have to wait for another lawsuit, perhaps one of several now brewing in lower courts.
Five of the nine justices have previously criticized the 1985 decision and suggested that the court should someday take a new look at it. Reacting to that implied invitation, the New York City school board revived the case and took it back to the justices.
But it was the revival of the old case, long since settled, rather than the arguments for overturning it, that dominated yesterday's hearing.
The Clinton administration's top court advocate, Acting Solicitor General Walter Dellinger, asked the court specifically to overrule the precedent, saying it could do so without drastically altering constitutional doctrine.
That immediately led to a series of questions by justices exploring how far public subsidies to parochial education could extend, if the court did clear the way. Justices David H. Souter and Stephen G. Breyer probed where to draw the constitutional line, with both wondering whether Congress could simply grant big payments to cover virtually all nonreligious courses at parochial schools.
"We're looking for a limiting principle" to keep subsidies from going too far, Souter said.
Dellinger argued mainly for permission to pay public teachers to offer remedial reading, math and English studies for parochial students who were educationally and financially needy -- the form of subsidy nullified by the 1985 ruling.
Those exchanges left the impression that the court was actually ready to reconsider the 1985 decision, thus giving the five critical justices a chance to produce a new majority that would ease the barrier to public subsidies of parochial schools.
But, early in the hearing, Justice Ruth Bader Ginsburg began turning it away from the scope of subsidies to church-run schools, probing instead the legitimacy of the vehicle the school board is using to try to undo the 1985 precedent. Other cases now pending in lower courts might be more appropriate to put the basic constitutional issue back before the court, she suggested.
Dellinger defended the school board's maneuver, saying "there must be some way for the court" to undo the 1985 ruling if that decision no longer has the support of a majority of justices.
Justices Sandra Day O'Connor and Anthony M. Kennedy -- strong critics of the New York precedent -- joined Ginsburg in questioning the school board's challenge to a ruling that has been final for a dozen years.
Paul A. Crotty, chief lawyer for New York City, told the court that the city has been using public school teachers to provide remedial courses for parochial students for 30 years -- before and after the 1985 ruling -- and there "has not been a single case" of a teacher getting into religious matters while teaching.
Since the 1985 decision, remedial teaching is done off-premises, as the ruling requires.
Stanley Geller, the New York City lawyer for those challenging the remedial studies teaching at public expense, argued that the court need not reopen the long-settled case in order to issue a new ruling on how far parochial schools could be aided.
He noted that the challengers even now have a case pending in a federal appeals court challenging the use of the buses, parked outside parochial schools, as remedial classrooms for those students.
The justices are expected to decide the case before their summer recess.
Drug testing case
In another action, the court ruled 8-1 that federal, state and local governments may not impose mandatory drug tests when the only reason for doing so is to send the message that the government disapproves of drug use.
Clarifying the scope of drug testing decisions the court has issued during the past seven years, the new decision said government must have a safety reason, or evidence of a genuine drug problem among officials or public employees, before tests can be made mandatory.
The decision struck down a Georgia law -- the only one of its kind in the nation -- that requires state political candidates to take and pass a drug test as a condition for getting on the ballot.
Ginsburg wrote the decision. Chief Justice William H. Rehnquist was the lone dissenter.
Pub Date: 4/16/97