A Green Light, with Conditions

By Anastasia Toufexis

The Justices okay tax aid for parochial school education

One of the dearly held goals of the Reagan Administration has been to provide financial relief for parents sending children to private schools. But even the plan's most fervent supporters have worried that it might not withstand a constitutional challenge. Though the U.S. Supreme Court has upheld laws permitting states to provide secular textbooks to both private and public schools and to pay for transporting students to private as well as public academies, it has regularly struck down other forms of aid. Reason: since so many private schools are connected to a religion, most public assistance leads to a forbidden entanglement of church and state.

Last week the court appeared to soften its traditional stance by upholding a Minnesota statute that allows parents to take tax deductions for education costs at a church-affiliated private school. The action gave new heart to the Reagan Administration. Said U.S. Solicitor General Rex Lee: "It's an important new beachhead." The Minnesota statute authorizes deductions of $500 to $700 spent by parents on "tuition, textbooks and transportation" for any child in grade or high school. By a 5-to-4 vote, the court found Minnesota's plan crucially different from other tax programs that had been ruled unconstitutional because the benefit is available to all parents, whether their children attend private or public schools.

Writing for the majority, Justice William Rehnquist brushed aside the argument that parents of children in public schools may find it impossible to scrape up $700 in deductions; nor was Rehnquist concerned that 96% of private school children whose parents took the benefits attend parochial schools. Even though religious institutions may profit most from the law, Rehnquist wrote, a program "that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause" of the First Amendment.

Speaking for the dissenters, Thurgood Marshall warned that "this result is flatly at odds with the fundamental principle that a state may provide no financial support whatsoever to promote religion." Indeed, after the decision was announced, public school educators and teachers' unions charged that the decision could lead to the draining of funds from an already strapped state educational system. Said Matthew Stark, executive director of the Minnesota Civil Liberties Union, which had tried to overturn the statute: "The public school system has been the great socializer. It's one of the few common meeting grounds in America. The Supreme Court decision is threatening the very existence of that system."

Responded St. Paul Attorney Joseph O'Neill, who represents a parents' group that supports tuition breaks: "Diversity, competition and plurality are basic in a democracy." There may now be more such competition. A day after the court's action, New Jersey legislators introduced a new tax-exemption proposal, and other states are expected to follow. At the federal level, the Reagan Administration is backing a bill giving parents tax credits to cover private school tuition.

Even if the measure passes Congress, its constitutional validity is by no means assured. The court hinted that a tax deduction, rather than the Administration's proposed tax credit, is preferable; a credit is a slightly more direct form of aid to religion, while deductions have long been permitted for charitable contributions to churches. In addition, warns Harvard Constitutional Law Professor Laurence Tribe, who welcomed last week's ruling: "The Supreme Court decision will give the Reagan proposal a constitutional green light only if it is broadened to include public as well as private school parents." The Senate Finance Committee has already turned down an amendment that would have remodeled the Reagan-backed proposal to accomplish just that. After last week's decision, Minnesota Republican David Durenberger announced that he would reoffer the amendment.

The Justices last week also decided two major criminal cases:

> By a 5-to-4 vote, the court ruled explicitly for the first time that the mere length of a prisoner's sentence can be so excessive, considering the crime committed, that it violates the Eighth Amendment's ban on "cruel and unusual punishments." Jerry Helm, 36, was convicted in 1979 in South Dakota of passing a bad check for $100. The crime ordinarily carries a maximum sentence of five years and a fine of $5,000. But Helm had six prior felony convictions (three for burglary, one for grand larceny, one for obtaining money under false pretenses and one for drunk driving), so he was sentenced under a repeat-offender statute. The judge imposed the maximum punishment allowable, life imprisonment without possibility of parole.

In tossing out the sentence, the court noted that all of Helm's crimes were relatively minor, that none involved violence and that the punishment he received was the same or stiffer than that imposed in the state for far more serious crimes. The decision may prompt judges to be less draconian in sentencing small-tune offenders, but civil liberties lawyers expect no flood of petitions from current prisoners, in part because most state sentences cannot be challenged after 120 to 200 days.

> In another 5-to-4 decision, the court ruled that a person acquitted of a criminal act by reason of insanity may be held in a mental hospital for longer than the time he might have served in prison if he had been convicted. The case involved Michael Jones, who was arrested in Washington, D.C., for attempted shoplifting, a misdemeanor that carries a maximum sentence of one year. He pleaded insanity and has been in a mental hospital since 1976. To win release under the city's law, either the hospital must certify that Jones is cured or he must prove his sanity by a preponderance of evidence.

His lawyers argued that after a year had elapsed, constitutional due process required that Jones either be set free or be considered a patient under involuntary civil commitment. That would mean the government would have to justify continued confinement with clear and convincing evidence that he is still mentally ill and dangerous. The court rejected the argument. It declared that there are enough "important differences" between mentally ill patients under civil commitment and those hospitalized after an insanity defense to continue indefinitely the Washington requirement that an inmate must show he is entitled to release. --By Anastasia Toufexis. Reported by Marc Hequet/Minneapolis and David S. Jackson/Washington

With reporting by Marc Hequet/Minneapolis, David S. Jackson/Washington This file is automatically generated by a robot program, so viewer discretion is required.