Mo., N.Y Suits Contest Federal Funds To Benefit Students in Private School
Decisions are expected this summer in two cases--in Missouri and New York--involving the federal government's practice of distributing Chapter 1 compensatory-education funds to private schools, and a similar suit challenging distribution of Chapter 2 block-grants funds in Rhode Island may be filed this summer.
Chapters 1 and 2 are part of the Education Consolidation and Improvement Act of 1981.
Chapter 1--formerly known as Title I--provides financial assistance to school districts that serve educationally disadvantged students from low-income families.
Chapter 2 of the block-grants program consolidated more than 30 separate programs into a package of grants to states and school districts.
Both Chapter 1 and 2 contain provisions specifying that local education agencies must provide opportunities for private-school children to participate "equitably" in the programs.
When the government can show that state and local education agencies have failed to do so, it may "bypass" them and provide the services through an independent contractor--as is being done in Missouri.
The Missouri Chapter 1 case--Wamble v. Bell--is the only one of the four in which the "bypass" provision is being used; the decision to use the provision is being challenged as part of the suit.
In addition to the Missouri and New York cases, there are two other such Chapter 1 cases pending in Minnesota and Kentucky, according to Stephen H. Freid, a lawyer in the office of the general counsel at the U.S. Education Department.
All four cases originated when the program was still known as Title I, and all are currently at the federal- district-court level, Mr. Freid said. In each, the chief issue is whether the aid violates the Establishment Clause of the First Amendment.
The Justice Department is defending the Education Department in all four suits. The New York case--Felton v. Bell--is a challenge to the provision of Chapter 1 services on the premises of private schools in New York City.
The major precedent in all the cases is a 1980 New York case called National Coalition for Public Education and Religious Liberty v. Harris, in which a federal district court ruled that the aid was being administered in a religiously neutral fashion, providing aid directly to students and not to schools, and that the program did not promote "excessive entanglement" between government and religion.
There is a need for a more "definitive" precedent in the matter, because the case was never heard by a federal appeals court or the U.S. Supreme Court, according to Robert D. Nesler, a Justice Department lawyer working on Wamble v. Bell.
The Education Department does not know exactly how much Chapter 1 or Chapter 2 aid goes to private schools, but says approximately 3.5 percent of all Chapter 1 students attend private schools, according to a spokesman in the department's office of private education. The de-partment could not provide figures on what percentage of students benefiting from Chapter 2 aid attend private schools.
The Rhode Island suit, if filed, would also involve an argument that the aid violates the Establishment Clause, according to Steven Brown, executive director of the Rhode Island Civil Liberties Union, the group that is planning to file the suit on behalf of a group of taxpayers and parents in Rhode Island public schools.
The Rhode Island case would be the first such challenge to Chapter 2 aid.
Last year, Rhode Island received $2.2 million in Chapter 2 aid. Mr. Brown estimated that "hundreds of thousands" of dollars went to private schools.
Mr. Brown said it is very likely the suit will be filed, probably sometime this summer.
According to Joseph L. Conn of Americans United for Separation of Church and State, an organization that opposes government involvement in religion, the organization is currently studying the possibility of mounting a challenge to Chapter 2 aid to private schools.
In Michigan, members of the state board of education have asked the state's attorney general for an advisory opinion on whether distributing Chapter 2 aid to private schools violates the state constitution.
Last year, Michigan received $18.2 million in Chapter 2 money, but state education officials said they do not know how much of the funds were spent to the benefit of private schools.