Back on the bench

National | High-court term opens with a pair of defeats for the public-education establishment

Issue: "Can the boom last?," Oct. 16, 1999

in Washington - The National Education Association went 0 for 2 last week as the Supreme Court justices returned to the bench for the start of a new term. On Oct. 4, the first day of work, the court refused petitions to hear some 1,700 cases. Among those were two cases near and dear to the hearts of public-school bureaucrats. In the first case, the justices refused to hear an NEA appeal of a Tennessee decision allowing the Knox County public schools to order drug tests for all new teachers. The school system said it wanted to send a message that it had zero tolerance for drug use, but the teachers union maintained that such tests constituted an "unreasonable search" under the Fourth Amendment (see page 13). In the second case, an Arizona law that grants tax credits for donations to private schools was allowed to stand, despite protests from defenders of the public-school monopoly. Arizonans who donate to organizations that provide private-school scholarships may take up to $500 off their state income taxes. The Arizona Supreme Court upheld the tax-credit plan. But critics argued the credits violated the separation of church and state, since the scholarships could be used at Christian and parochial schools. The Supreme Court apparently disagreed, though it issued no comment in refusing to hear the appeal. That means Arizona is free to go ahead with its tax-credit program, but the high court's non-decision sets no precedent for similar cases in other states. Still, conservative court watchers were hopeful that the move signaled a willingness on the part of the court to allow more leeway for private education-particularly when it comes to vouchers. The court got down to business with a light docket-only 43 cases scheduled thus far-but a full bench. Justice Ruth Bader Ginsburg unexpectedly showed up for the first day of work, despite undergoing surgery for colon cancer just 17 days before. The most important oral arguments in week one involved campaign-finance reform. Lawyers for Missouri argued that their state should be allowed to impose a cap on individuals' donations to candidates, even though they brought no evidence that higher donations had corrupted the political process. If the Supreme Court agrees with lower courts that such limits are an unconstitutional violation of free speech, that could jeopardize federal limits on political contributions. Since decisions are typically handed down in the spring, a ruling against the Missouri law could wreak havoc in presidential campaigns, just when primary season is at its height. Although the number of Supreme Court cases scheduled for the new term is small, the importance of the cases is great. Several rulings will further help to define some of the most important principles of government. Among them: States' rights Many states supplement their budgets by selling personal information culled from driver's license records to marketing companies. After such easy access to information led to a stalking murder, Congress decided to prohibit the states from selling their records. Defenders of states' rights argue the federal government has no business telling states how to use their resources. Regulation The Clinton Administration wants to give the FDA the power to regulate tobacco as an addictive drug. Critics contend that once tobacco is classified as an addictive drug and regulated by the FDA, the federal government will be almost obliged to ban its sale and use. Church & State In December, the court will hear a challenge to a Louisiana law that supplies publicly funded computers and other educational materials to parochial schools. The case could have important implications for other types of public aid to private schools. In addition, many court watchers expect the justices in coming weeks to agree to hear major cases on school prayer and vouchers. In recent terms, decisions on such social issues have typically been handed down by a 5-4 majority, with either Anthony Kennedy or Sandra Day O'Connor casting the deciding vote. A series of 5-4 decisions on controversial topics ranging from school prayer to abortion to the death penalty will likely focus attention on the Supreme Court as a political issue. With only one justice-Clarence Thomas-under the age of 60, candidates will start reminding voters that the next president will have the opportunity to set the legal direction for a generation to come.

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