Backers of tuition tax break win battle, but may lose war

Proponents of tuition tax credits for parents of parochial school students have won a key skirmish in the courts - but that victory could eventually mean a defeat in Congress and possibly a reversal by the courts.

The US Supreme Court recently upheld a plan to give tuition tax breaks to parents of students in both public and private (including parochial) schools. This ruling actually may help rally First Amendment advocates and those who believe in a clear-cut separation between church and state.

Civil rights groups, many constitutionalists, and some in the religious community at first were discouraged by the court's 5-to-4 decision. It upheld a Minnesota law allowing a partial tax deduction for educational expenses, a benefit that would apply primarily to parents of parochial school students.

They still don't like the ruling. But now many say they don't see it as the damaging frontal assault on the ''wall'' of separation they first did. Some even say it could help block broad-based legislation, now before Congress and backed by the Reagan administration, which would permit tax credits to parents of children attending private schools.

''The decision by the Supreme Court in Mueller v. Allen to uphold a Minnesota tax deduction for parents of schoolchildren has increased the chances that the Reagan tuition tax-credit plan would be declared unconstitutional,'' insists Donald N. Jensen, research associate at Stanford's Institute for Research on Educational Finance and Governance.

Mr. Jensen, a national expert on education funding, says he doesn't believe the Reagan plan can pass the litmus test originally set up by the Supreme Court in 1971 and followed, at least in part, in the Minnesota decision. This holds that to be constitutional, a law assisting private schools or parents of children in those schools must: (1) have a secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) not lead to excessive entanglement between church and state.

Justice William H. Rehnquist, writing for the majority in the Minnesota case, cited ''facial neutrality'' in the Minnesota law. He explained that on its face, it does not distinguish between public and private schools, religious or secular. He conceded, however, that the tax deduction benefited mostly parents of parochial-school children - since more than 95 percent of Minnesota's private-school students attend religious schools, and few public-school students incur deductible expenses.

Jensen and others point out that the current federal tax-credit legislation does not cover any public-school expenses and focuses on a tax ''credit'' rather than on a ''deduction'' for private-school families. The Stanford scholar suggests that other court decisions ''indicate that tax credits may be a stronger form of aid to religion than are tax deductions.'' And he adds that a bill channeling funds only to those attending nonpublic schools cannot be considered ''secular.''

In Minnesota, taxpayers may claim a deduction for certain school-related expenses, such as tuition, textbooks, and transportation. There's a limit of $ 500 for elementary-school students and $700 for those in upper grades. The proposed federal tax credit is dollar-for-dollar forgiveness against the net payable tax after all deductions and exclusions have been taken. Jensen says that the courts may decide that tax credits involve the state more deeply in assisting sectarian schools than do either tax benefits or deductions.

Some backers of President Reagan's tax credit plan, including Sen. Robert Dole (R) of Kansas who engineered the proposal through the Finance Committee, insist that the Supreme Court ruling in the Minnesota case will help pave the way for passage in Congress. Others, including spokesmen for the American Civil Liberties Union, tend to agree with Jensen that such a law would ultimately be declared unconstitutional, since it would provide a clear government benefit to religion, in violation of the First Amendment.

Meanwhile, some constitutional lobbyists, including church groups such as the American Jewish Committee, the Baptist Joint Committee on Public Affairs, and Americans United for Separation of Church and State (AU), say they are ready to do battle in each state to head off public funding programs for parochial schools.

AU executive director W. Melvin Adams states: ''While a careful reading of Mueller v. Allen should give advocates of federal tuition tax credits little comfort, this will invite the 'parochaid' lobby to seek more public aid.'' Mr. Adams says his group will redouble its litigation and education programs to ''reduce any damage the Mueller decision has done.''