COURT REPORTER
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Once More, Into the First Amendment [By James Kilpatrick] Verily, verily, remarked the Preacher, of the bringing of First Amendment cases there shall be no end. The venerable Ecclesiastes thus provided a text for an important case now pending in the Supreme Court on a petition for review.
The case is Kevin and Julia Anderson v.
statewide were still receiving grants to cover
by which low-income parents could obtain
Durham School Department. It invites the high court to embark upon one more exploration of two of the murkier clauses of the Constitution. One clause forbids Congress (and by extension, the state of Maine) from making any law “respecting an establishment of religion.” The other appears to forbid Maine from denying the Andersons’ teenagers the equal protection of its laws.
tuition at sectarian schools. Almost all of
tuition grants for children from kindergarten
them were at St. Dominic’s regional high
through the eighth grade. The grants could
school in Auburn.
be cashed, so to speak, at 56 private schools - including 46 religious schools.
In the Portland area, affected parents banded together in a court challenge under both clauses of the Constitution. The Maine Civil Liberties Union naturally intervened in support of the law. It is what civil libertarians do. The parents lost in the Cumberland
The facts of the case take us back more
County trial court and lost again this past
than a hundred years, to the time in the
April through a 6-1 decision in Maine’s
1880s when the only high schools in many
Supreme Judicial Court. Now the parties
counties in Maine were private high schools.
wait to learn if the high court will hear the
A tuitioning system developed. Towns and
parents’ appeal.
counties that had no public high school of their own paid the tuition for their teenagers
The six concurring justices in Maine
to attend non-public schools somewhere
concluded that the state’s ban on
else. Many of the non-public schools were
sectarian grants does no violence to either
church-related schools, but there were
constitutional clause. The state’s justifiable
fewer constitutional lawyers then and nobody
concern, they ruled, is to avoid excessive
seemed to mind.
entanglement with religion. Justice Robert W. Clifford, dissenting, agreed that the
The resulting litigation wound its way to an opinion by Chief Justice William Rehnquist upholding the program. Justices Sandra Day O’Connor and Clarence Thomas wrote separate supporting opinions. Rehnquist emphasized that Cleveland’s program is “entirely neutral with respect to religion.” Justices John Paul Stevens, David Souter and Stephen Breyer wrote separate dissenting opinions. Stevens said the majority was “profoundly misguided.” In a long and remarkably anguished complaint, Souter rued his colleagues’ “dramatic departure from principle.” More recently, in Locke v. Davey two years ago, Rehnquist wrote for a 7-2 court in tilting the other way. The majority agreed in his brief opinion that the state of Washington
Over the years, the facts greatly changed.
state is not required to provide tuition aid
Public high schools blossomed. The need
in affected localities, but “if it does provide
for tuition grants declined. Constitutional
such aid, it should not be able to exclude
law changed also. Trial courts weighed the
private schools that also happen to have
legality of marble monuments to the Ten
a religious affiliation. In my view, that is
Maine’s unique tuition grants deserve
Commandments. The Supremes pondered
blatant discrimination.”
Supreme Court review. Justice Kilpatrick,
the propriety of Jesus and Mary in public
properly could exclude ministerial studies from an otherwise sweeping program of scholarships for outstanding scholars.
meaning me, would vote that the grants
parks at Christmas. In 1980, Maine’s attorney
Whose view should prevail? Two recent Supreme
probably violate the religion clauses, but
general issued a formal opinion warning
Court cases appear to be especially relevant.
Justice Kilpatrick, alas, has no vote.
that the use of public funds to pay tuition at private sectarian schools probably would be
In 2002 the court split 5-4 in Zelman
held unconstitutional. The state legislature
v. Harris , a case that developed from a remedial program in Cleveland. The city’s public schools had deteriorated grievously by the 1990s. A state investigation concluded that the city had failed to meet any of 18 standards for minimal performance. Desperate measures appeared to be required. Thus the city created a program
responded by adopting an act limiting tuition grants to non-sectarian schools. It was a near-fatal blow. Facing the loss of tuition from 40 percent of its students, the Catholic high school in Bangor was forced to close its doors. By 2000, only 211 students
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(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.) COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.