Once more, into the First Amendment

James J. Kilpatrick
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Posted: Oct 26, 2006 12:01 AM

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. 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.

The facts of the case take us back more than a hundred years, to the time in the 1880s when the only high schools in many counties in Maine were private high schools. A tuitioning system developed. Towns and counties that had no public high school of their own paid the tuition for their teenagers to attend non-public schools somewhere else. Many of the non-public schools were church-related schools, but there were fewer constitutional lawyers then and nobody seemed to mind.

Over the years, the facts greatly changed. Public high schools blossomed. The need for tuition grants declined. Constitutional law changed also. Trial courts weighed the legality of marble monuments to the Ten Commandments. The Supremes pondered the propriety of Jesus and Mary in public parks at Christmas. In 1980, Maine's attorney general issued a formal opinion warning that the use of public funds to pay tuition at private sectarian schools probably would be held unconstitutional. The state legislature 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 statewide were still receiving grants to cover tuition at sectarian schools. Almost all of them were at St. Dominic's regional high school in Auburn.

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 County trial court and lost again this past April through a 6-1 decision in Maine's Supreme Judicial Court. Now the parties wait to learn if the high court will hear the parents' appeal.

The six concurring justices in Maine concluded that the state's ban on sectarian grants does no violence to either constitutional clause. The state's justifiable concern, they ruled, is to avoid excessive entanglement with religion. Justice Robert W. Clifford, dissenting, agreed that the state is not required to provide tuition aid in affected localities, but "if it does provide such aid, it should not be able to exclude private schools that also happen to have a religious affiliation. In my view, that is blatant discrimination."

Whose view should prevail? Two recent Supreme Court cases appear to be especially relevant.

In 2002 the court split 5-4 in Zelman 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 by which low-income parents could obtain tuition grants for children from kindergarten through the eighth grade. The grants could be cashed, so to speak, at 56 private schools -- including 46 religious schools.

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 properly could exclude ministerial studies from an otherwise sweeping program of scholarships for outstanding scholars.

Maine's unique tuition grants deserve Supreme Court review. Justice Kilpatrick, meaning me, would vote that the grants probably violate the religion clauses, but Justice Kilpatrick, alas, has no vote.