WASHINGTON -- The Supreme Court, angrily divided over how it should use its power, reached out yesterday to overrule two long-settled decisions and gave the government sweeping authority to subsidize education in parochial schools.
Splitting 5-4, the court ruled that, contrary to what it decided 12 years ago, the Constitution allows public school teachers to be paid with public funds to enter parochial schools and offer remedial studies, guidance counseling and enrichment classes.
The Constitution's clauses separating church and government, the court majority said, do not bar publicly paid teachers from the classrooms of parochial schools, so long as they teach subjects other than religion.
Teachers, the court said, can be depended upon not to shape their teaching to advance the schools' religious mission.
"We have abandoned the presumption that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination," Justice Sandra Day O'Connor wrote for the majority.
She said that having publicly paid teachers in those schools does not create "a symbolic union between government and religion."
Interaction between church and government, O'Connor said, "is inevitable and we have always tolerated some level of involvement between the two."
The decision, however, tolerated a deeper level of involvement than the court had allowed before. The justices overturned all of one 1985 ruling and part of another that year -- two decisions that had come to mean that virtually all direct government subsidizing of religious school education was unconstitutional.
The court, O'Connor said, "has departed from" that view, thus implying that states and Congress were now freer to experiment with direct financing of education in parochial schools in ways that may parallel aid to public schools.
The decision was unprecedented in one respect. Although it is not uncommon for the court to overrule a prior decision, never before had it allowed the losers in a case to return to court years later and argue that they should now be declared the winners.
Dissenting Justice David H. Souter said the ruling would "authorize direct state aid to religious institutions on an unparalleled scale."
Barry W. Lynn, executive director of Americans United for Separation of Church and State, expressed dismay. He said he expected the decision to embolden state legislatures to provide additional forms of public funding to religious schools, including, perhaps, paying public school teachers to offer core courses, not just remedial or enrichment classes.
Lynn said the ruling "was as significant as you can find on public service aid to parochial schools." He doubted, however, that the ruling went far enough to give the court's blessing to state-funded scholarships that could be used at parochial schools.
Proponents of such scholarships, however, disagreed. Clint Bolick, litigation director of the Institute for Justice, said the decision "bolsters school-choice advocates' argument that states may give parents educational scholarships to spend at the public or private school of their choice."
The U.S. Catholic Conference praised the ruling, saying it "strengthened the nature of relationships between religion and government."
As a result of yesterday's decision, about 255,000 students attending Roman Catholic schools, and many others at other parochial schools, will be allowed to take remedial studies and enrichment courses from public school teachers inside their own schools.
Congress decided 32 years ago, in setting up a program of remedial education for poor children in reading, math and English, that the teaching help should go to children wherever they were in school: parochial, other private or public. Many of the poor children in the program go to Catholic schools, and those schools welcomed the federal subsidy.
After the 1985 rulings barred such aid, New York City's schools and others began providing the classes at sites away from the parochial schools, often in buses parked outside.
Until yesterday, the court had been unwilling to reconsider those rulings, although five of the present justices had criticized those decisions and suggested they should be reconsidered.
That day came yesterday, when the justices endorsed a maneuver by lawyers for New York schools and for parochial school pupils' parents to use an obscure federal court rule to reopen the very case they lost in 1985.
Joining O'Connor in the majority were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.
Dissenting with Souter were Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens.
Pub Date: 6/24/97
