A classic game of buck-passing is being played by federal purveyors of education funds and state officials looking for the easy dollar to finance hard-hit school systems. While they play, “between them, the Constitution falls to the ground” and parochial schools pick up the forfeit.
This wry assessment of the fuss over church-state separation and the Elementary and Secondary Education Act of 1965 came from attorney Leo Pfeffer of New York, the nation’s leading circuit fighter on church-state issues. Pfeffer represented one of more than a half-dozen litigants in the crucial Flast v. Gardner case argued before the U. S. Supreme Court this month.
If individual taxpayers are not allowed to initiate lawsuits contesting the spending of their tax dollars for religiously oriented purposes, “is there remedy elsewhere?” Pfeffer asked.
Practically speaking, the answer is an obvious no. As Pfeffer put it, the states have “a stake in maintaining the status quo,” and one will look out over the horizon a long time before he sees states initiating action that might eventually cut off federal dollars. State education officials can afford to look the other way in acceding to demands for funds from Catholic and other parochial interests so long as this keeps down the squeaks in the machinery that brings in federal money.
Democratic Senator Sam Ervin of North Carolina, a frequent critic of the nation’s highest judicial body, said this time that “the Supreme Court is our only hope.” His appearance before the justices was seen to be in keeping with a now dormant tradition of the nineteenth century, when congressional figures argued regularly in the Supreme Court chamber.
Ervin has, without so much as one vote of opposition, taken a judicial-review ...1
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