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Repeatedly criticized by a majority of justices as a lemon of a constitutional test for church-state violations, the U.S. Supreme Court demonstrated recently that it’s not ready to let go of its particular “Lemon”: Lemon v. Kurtzman, 403 U.S. 602 (1971). Nearly 30 years old, Lemon figured in two high court decisions on June 19, both involving religion and schools, and it likely will be seen again in the term’s final establishment clause challenge to a government program that provides instructional materials and equipment to public and religious schools. Lemon created a three-pronged test for assessing the constitutionality of a statute, policy or program under the First Amendment’s establishment clause: Does the policy have the primary purpose of advancing religion; does it have that effect; or is there excessive government entanglement with religion? The Lemon test was not at the core of the high court’s major establishment clause ruling on June 19 — Santa Fe Independent School District v. Doe, No. 99-62. Instead, the 6-3 majority, led by Justice John Paul Stevens, used a little bit of Lemon along with two other approaches that stem from dissatisfaction with Lemon when they struck down a school district’s policy of permitting student-led prayer at football games. Despite a strong and unequivocal message to school districts in the Santa Fe decision, the high court’s reluctance — or inability, some say — to settle on a single approach to weighing establishment clause violations will continue to fuel already persistent and creative litigation regarding the separation of church and state. “[The majority] may be right about this case,” says religion scholar Thomas Berg, of Samford University Cumberland School of Law, “but there are other cases where it’s harder, and schools and others will need more guidance.” In Santa Fe, the high court struck down a policy that permitted a vote by the student body to determine whether a message or invocation would be delivered at pregame activities, and if so, the election of a student to deliver it. The high court rejected all of the district’s arguments: The message’s delivery on school property, at school-sponsored events, over the school’s public address system, by a student body representative and pursuant to a school policy, said the court, cannot be “private” speech, as the district claimed. The policy is also coercive, wrote Stevens, looking to the coercion test used by Justice Anthony M. Kennedy in Lee v. Weisman, 505 U.S. 577 (1992). Some students, such as cheerleaders and band members, must attend the games, often for class credit. The text, history and implementation of the policy also would lead an objective Santa Fe High School student to perceive the pregame prayer as being endorsed by the school. Finally, turning to Lemon, the court found that the text of the policy and the district’s long tradition of student prayer at varsity games revealed an unconstitutional purpose: to advance religion. The same day, the justices, by a 6-3 vote, declined to review a petition from a Louisiana school board that required the reading of a “disclaimer” before elementary and high school students studied evolution. The disclaimer, struck down by the 5th U.S. Circuit Court of Appeals, said that the evolution lesson was intended to inform students but not “to influence or dissuade the Biblical version of Creation or any other concept.” The 5th Circuit, relying on Lemon, held that the disclaimer had the unconstitutional effect of advancing religion. Dissenting, Justice Antonin Scalia said that he would grant review “if only to take the opportunity to inter the Lemon test once and for all.” He was joined only by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Church-state scholars and litigators agree that both decisions spell trouble for any religious activity that is part of a school program. They disagree as to whether the decisions reach beyond the school setting. But they all agree that Lemon will survive. SOME GUIDANCE The Santa Fe ruling provides considerable guidance for school districts, particularly if they’re willing to “read between the lines,” says longtime church-state litigator Lee Boothby, of Washington, D.C.’s Boothby & Yingst: “The court is saying that anything [religious] that is done as part of the regular, sponsored school program may result in an establishment clause violation.” Because Santa Fe dealt only with student-led prayer at school athletic events, the decision does not resolve, “but gives hints” on, how to resolve the issue of student-initiated and student-led prayer at graduation ceremonies, says Barry Lynn, executive director of Americans United for Separation of Church and State. The justices already have been asked to hear a challenge to an Alabama law that permits student-initiated prayer at graduations and other events. “I think the next case likely to get to the high court will be something about valedictorian addresses,” Lynn predicts. “For example, a school administrator learns in advance that the valedictorian is planning to give a sermonette, tells the valedictorian that it is inappropriate, and the valedictorian sues.” Jay Alan Sekulow, of the American Center for Law and Justice, losing counsel to the Santa Fe School District, agrees that valedictorian challenges will be the “next round” of litigation, and he has such a case. But, he says, he also worries now about the fate of school vouchers if that issue gets to the high court. “That’s a very, very close call,” he says. Before the court’s term ends, the justices are expected to say more about schools and religion in Mitchell v. Helms, No. 98-1648, which has been pending since it was argued last Dec. 1. Helms, a challenge to a government program providing computers and other assistance to public and nonpublic schools, is a harder case than Santa Fe, say many scholars. “I think the question of financial aid is going to haunt us for a long time,” agrees Boothby, high court counsel to the taxpayer-parents challenging the federal program in Helms. “Ever since Everson [ v. Board of Education, 330 U.S. 1 (1947)], it has been one experiment after another to get money into sectarian schools.” And the Lemon test will be part of the haunting, he and others predict. The justices will not inter Lemon, says Berg, because they have yet to agree on a replacement. “ Lemon may not be the final answer to all establishment clause questions, but it certainly gives you an indication whether something should be declared unconstitutional,” says Boothby. “How much of it survives, we’ll find out in Helms.”

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