IF HARD CASES make bad law, as Oliver Wendell Holmes once observed, then bad policies can also lead to hard decisions. Such was the situation when the Supreme Court ruled this week that public school teachers can enter parochial or private school property to give poor children remedial instruction. In so doing, the court took the rare step of reversing a 1985 ruling that marked a high water mark in separation of church and state.
One factor was paramount in this turnabout: the expensive and bizarre spectacle of rented classroom vans and trailers parked just outside the schools they were serving.
In New York City, where the latest case originated, the cost of this arrangement soared past $100 million in the past dozen years. The bid for reversal was supported by the Clinton administration and Mayor Rudolph W. Giuliani.
Maryland School Superintendent Nancy Grasmick said the ruling will have "a very significant, positive impact" that reflects "common sense" and "a priority on children." Her office estimated Maryland has spent up to $22 million in 13 school districts to implement the court's 1985 decision. The number of children served, now 2,000, is likely to increase substantially.
Justice Sandra Day O'Connor, who wrote the court's 5-4 decision, noted that none of the federal funds freed by the new ruling would flow into the coffers of parochial or private schools. Nonetheless, the decision spurred speculation that the court might later approve public-funded vouchers or scholarships for students who opt to go to non-public schools. This prospect could erode the Constitution's Establishment Clause, which has long barred entangling relationships between church and state.
Justice David Souter, for the minority, noted the difficulty of trying to defend dubious government practices on constitutional grounds. "Lines have to be drawn," he wrote, "and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution. . . But the constitutional lines are the price of constitutional government."
True enough. But very strict interpretations of the Establishment Clause can lead not only to public "impatience" but to public intolerance with rulings that cause unnecessary inconvenience to school children and needless expenditures of public money.
! Pub Date: 6/25/97