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11 States Ask High Court for a Stay In Dispute Over Chapter I

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By Tom Mirga

Washington--U.S. Supreme Court Justice Thurgood Marshall ordered the Education Department (ed) last week to respond by Aug. 12 to a motion filed with him by 11 states that seek to overturn an appeals-court ruling involving federal funds for programs for disadvantaged children.

The states claim that unless the ruling is overturned, they will lose more than $110 million in federal education aid for such children.

Justice Marshall's order marked the latest round in Ambach v. Bell, a lawsuit pitting the 11 plaintiff states and Puerto Rico against ed and 12 other states over the distribution of Chapter I monies this year.

Chapter I grants are awarded to states on the basis of their levels of low-income children. Under the terms of a federal appellate court's ruling on July 23, the department allocated approximately $2.4 billion in Chapter I funds to states late last month based upon its original plan to distribute the grants according to 1970 census data.

The 11 plaintiff states, all of which say their populations of impoverished children grew during the 1970's, contend that Secretary of Education Terrel H. Bell's decision to base this year's allocations on 1970 rather than 1980 census data should be overturned because he is required by law to use the most recent Census Bureau figures that are available to him.

Mr. Bell has argued in the suit that he was required to use the older census figures in allocating Chapter I monies this year because the 1980 figures would not have been ready in time for ed's target distribution date of July 1.

The 12 states that have joined Mr. Bell in the suit, all of which would gain federal dollars if the older census data are used, have also argued in court that Congress intended that the older data be used when it revamped Title I, renamed it Chapter I, and included it in the Education Consolidation and Improvement Act of 1981.

On June 30, Judge Norma H. Johnson of the U.S. District Court for the District of Columbia issued an injunction enjoining ed from distributing part of the disputed Chapter I funds until she could review the plaintiffs' argument.

Judge Johnson, however, allowed ed to release 85 percent of the funds that states received last year under Title I according to that law's "hold-harmless" clause. The department took that step on July 9.

But on July 26, a three-judge pannel of the U.S. Court of Appeals for the District of Columbia, acting on an appeal by ed, vacated Judge Johnson's injunction, allowing the department to make final Chapter I awards to states on the basis of the 1970 data.

Lawyers for the plaintiff states then petitioned U.S. Supreme Court Chief Justice Warren E. Burger to issue a stay of the appeals-court ruling, but he turned down their request on August 3. The plaintiffs then approached Justice Marshall, who ordered ed on August 9 to respond to the petition by no later than last Thursday.

Marie Robinson, a spokesman for the department, said last week that the Justice Department and ed's office of the general counsel were preparing a response to Justice Marshall's request.

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