What the Supreme Court agrees not to decide can carry its own implications


October 14, 1990|By Lyle Denniston | Lyle Denniston,Lyle Denniston, a member of The Sun's Washington Bureau, covers the Supreme Court.

Much of what the U.S. Supreme Court does with its powers can be explained quite easily, because it gives its reasons in public and in terms fully understandable to the non-lawyer observer. But the court can be truly baffling when it chooses to withhold its powers -- as it did just the other day in passing up a chance to rule on a major issue of religion in the public schools.

It is a fundamental mistake, however, to start with the supposition that it means nothing at all when the court lets a case like that go by without reviewing it. The court has reasons for standing aside, even if it doesn't give them.

But what is more important is that, even without the public's knowing why the court chose not to get involved, consequences flow from such abstinence, and the consequences can be very important indeed.

There was a lesson like that when the court bypassed last week the case of Centennial School District vs. Gregoire, probably the most important case on religion in the schools to have reached the court in several years.

At stake in the case was the question of whether the Constitution would allow public schools to be turned into worship centers -- indeed, whether the Constitution might even require that result.

Nine years ago, the court had ruled that if a state college or university opened up its facilities to outside groups, it then had a constitutional duty to let in religious organizations, too, even if the facilities would be used by those groups for religious rituals or services. College students, it was thought, were old enough and mature enough to know that the government was not promotingor embracing religion simply by giving sectarian groups access.

Quite a number of administrators and school boards, all across the country, had come to believe in the years since then that the same kind of open access would not be required in public high schools, junior highs and elementary schools.

The Supreme Court in the past has steadfastly refused to let prayers be said in schools at those levels and had even refused to allow the Lord's Prayer to be hung on those schools' walls as a plaque or poster, partly because it believed that students in those grades were so impressionable that they might well think religious practices which went on in school might be required of them -- just as they have to take math even if they would rather not.

There thus had appeared to be a line of constitutional demarcation between the colleges and the secondary and elementary schools, a line between adults and children, with the latter insulated from religion at school by a kind of "wall of separation" erected by the Constitution and maintained by the Supreme Court.

Indeed, that concept of the wall was reinforced in the minds of principals and school boards by the notion that they actually would violate their constitutional obligations if they let religion in. In many communities, lawyers advising school boards told them bluntly that they could not legally bring religion into the students' midst.

So, educators awaited the day when the Supreme Court would have a chance to say, finally and in a clear-cut way, whether public schools were to go on shutting their doors to religious exercises no matter how widely they had swung open their doors to other outsiders in the community.

The chances that that day would arrive, sooner rather than later, increased with the growing pressure that religious groups were putting on the public schools, demanding access for programs with a distinctly religious content, even for worship services.

One such group involved in applying that pressure in several communities was a group known as the Campus Crusade for Christ Inc.

In the town of Warminster, Pa., three years ago, that group started the case that would reach the Supreme Court last week, the major test case for which the nation's school administrators had been waiting.

Campus Crusade for Christ and a high school-level affiliate, called Student Venture, asked for the opportunity to rent the auditorium of William Tennent High School in Warminster to put on a combined magic show and evangelical "crusade" designed expressly to attract high school students and to convert some of them.

Centennial School District officials tried to keep that event off school grounds, but a federal judge ordered them to grant access. That was done, over school officials' protest. The case moved on up in the courts, and the 3rd U.S. Circuit Court of Appeals -- in a breakthrough decision -- declared in June that a public high school creates an "open forum" when it lets outside

groups use its facilities, and it must then allow religious groups equal access as a constitutional duty.

The Circuit Court erased the line of demarcation between mature college students and less-mature high school students, saying that the younger ones were not as impressionable as had been thought and could handle having religious exercises in their schools without misunderstanding why they were there.

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