High court opens session; Ginsburg returns to bench; Justices let stand tax credits supporting parochial schools

THE BALTIMORE SUN

WASHINGTON -- The Supreme Court cleared the way yesterday for states to grant tax credits as a way of channeling money to parochial schools without a direct public subsidy.

Without comment, the court turned aside an Arizona case that has been watched closely for signals of the court's current view of parochial school aid, and perhaps for a hint of what the court might do on school vouchers.

In another significant school case, from Tennessee, the court refused to protect public school teachers from having to take a drug test, even when there is no evidence of drug abuse among a school's faculty.

Though the court has upheld drug testing programs for students, this was the first time it has faced a challenge to compulsory drug screening for teachers.

The court took those actions on the opening day of a new term.

Justice Ruth Bader Ginsburg, who underwent colon cancer surgery just 17 days ago, surprised observers by taking her seat on the bench and participating actively through two hours of hearings.

The court's new term has been shaping up as a major battleground over religion in public life.

The court will hear one case on a federal program involving the lending of publicly financed computers to parochial schools.

And it is expected to act in coming weeks on prayers in public schools and on school vouchers for use in parochial schools.

Yesterday, the justices chose to bypass a constitutional challenge to one version of public aid: a 1997 Arizona law that lets state taxpayers take a tax credit of up to $500 if they donate money to groups that provide scholarships and tuition grants to private schools.

Under the program, parents cannot pay the money directly to a school attended by their children.

More than 70 percent of the schools that receive the aid are parochial.

The state Supreme Court upheld the program in January, saying its goal was not to subsidize religion but rather "to bring private institutions into the mix of educational alternatives."

Private education, it said, can help serve the state's educational goals.

A group of 11 Arizonans contended that the program's main effect was to promote religious education.

Their appeal was supported by the National School Boards Association, which argued that Supreme Court guidance on aid to parochial schools is "imperative" because it is an active issue in at least 20 states.

Clint Bolick, litigation director of the Institute of Justice, a conservative advocacy group that supports school vouchers and other forms of public financial aid to alternative schools, said that "clearly the momentum remains on the side of school choice supporters."

But Elliot M. Mincberg, legal director of People for the American Way, a liberal advocacy group that opposes aid to parochial schools, said the Arizona program is so unusual that "I do not read anything into it at all about vouchers."

Mincberg said the court was moving cautiously on parochial school cases because the justices are deeply divided on the issue.

The court gave no reason for refusing review.

Its action does not mean that it agrees with the Arizona court's decision to uphold the tax credits.

But it was a signal that the court does not regard the issue as worthy of its time at this point.

The justices also offered no explanation for a separate order rejecting an appeal by the Knox County, Tenn., Education Association, which represents teachers in the county's public schools and had challenged a 5-year-old drug-testing requirement for teachers.

Teachers are tested under that program on the theory that they hold "safety-sensitive positions" -- defined as any job in which a single mistake by an employee could threaten serious harm to students or others.

In a series of rulings over the past decade on government-ordered drug testing, the Supreme Court has struck down only one form of such testing -- a requirement that candidates for state offices take and pass a drug test.

The court has allowed schools to require the testing of students who participate in school sports or other after-school activities.

The Supreme Court issued 76 pages of orders yesterday, declining to hear hundreds of new appeals that had built up during its summer recess.

Among the cases it turned down was an appeal by a Hagerstown man, Lewis William Burral, who challenged the Maryland courts' ban on all testimony in criminal trials by witnesses whose memories have been enhanced by hypnosis.

Burral is serving a 30-year prison term for the 1989 stabbing murder in the town of Clear Spring of Jeffrey Fiddler of Hagerstown.

Burral was rebuffed in an attempt to offer the testimony of Fiddler's girlfriend, who would testify -- after hypnosis to aid her memory -- that she saw another man do the stabbing.

The Maryland Court of Appeals, in a 4-3 ruling in February, reaffirmed its 1983 ruling barring such testimony.

Among other orders yesterday:

The justices bypassed a claim by the New York company that has the rights to the wreckage of the Titanic that it should be allowed to block all others from sightseeing visits and picture-taking at the wreck site.

They left intact a lower-court ruling that the Newark, N.J., Police Department acted unconstitutionally when it refused to let officers wear beards for religious reasons.

The court refused to hear a claim by the Ringling Bros. and Barnum & Bailey Circus that the state of Utah violated the circus' famous trademark, "The Greatest Show on Earth," through the use of a tourism-promoting slogan, "The Greatest Snow on Earth."

It rebuffed a Virginia family's claim that a private karate school illegally discriminated against their son on the basis of disability. The son, who has AIDS, was barred from taking part in karate lessons because of supposed risk to other youths.

In another Virginia case, the court turned aside an appeal by a high school band director who was seeking to revive a lawsuit involving the local sheriff in Warsaw, Va. The band director claimed that the sheriff illegally detained him for failure to move his band rapidly enough during a harvest parade in 1987.

It refused to review the conviction and death sentence of a former Philadelphia radio journalist and jail house author, Mumia Abu-Jamal, for the 1981 murder of a police officer.

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