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Court Asked To Reverse Ruling On State Aid in Private Schools

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Washington--The Justice Department last week urged the U.S. Supreme Court to reverse an appeals court's ruling that a New York City program using federal compensatory-education aid to finance classes taught in private schools by public-school teachers is unconstitutional. (See Education Week, Oct. 17, 1984.)

As the government had requested, the Court has scheduled oral arguments for this case, Secretary of Education v. Felton (Case No. 84-238), and a similar case, School District of the City of Grand Rapids v. Ball (Case No. 83-990), for the same day, Dec. 5.

The Justice Department brief in the Felton case faulted the lower court's reasoning and claimed that the "secular character" of the city's 16-year-old program has never been compromised.

Entanglement Seen

Last July, the U.S. Court of Appeals for the Second Circuit said that it was compelled by precedent to find the program unconstitutional, since its administration risked an unconstitutional entanglement of church and state.

The court acknowledged, though, that the program--in which Title I (now Chapter 1) funds pay teachers to conduct courses in private schools and pay for the purchase of materi-als for those courses--"has done much good."

The government brief to the Supreme Court said that "thousands of disadvantaged children have gained precious opportunity from this program; they stand to lose grievously" if the appeals-court decision is upheld.

New York City has the largest compensatory-education program in the nation.

According to the government brief, it serves more than 300,000 students, about 13 percent of whom attend nonpublic schools.

The program was first challenged in 1978, when a group of parents filed suit in federal district court against the city school board, alleging that the aid, under what was then Title I, to private-school students was unconstitutional.

U.S. District Judge Edward R. Neaher upheld the constitutionality of the program in October 1983, but was reversed by the second-circuit court. (See Education Week, Aug. 22, 1984.)

Decision Criticized

Withholding compensatory-education funds from private-school students "would undermine the objectives of Title I," the brief said. That aim, it said, citing Congressional intent, is the equitable participation of all qualified students.

The government brief also said the appellate court's finding "improperly reversed the burden of proof, in effect applying a presumption of unconstitutionality to this statutory program. Further, the court's approach seems quite contrary to the values of evenhandedness and accommodation that infuse the Religion Clauses."

The Grand Rapids case involves the use of state and local funds, not federal funds, for remedial courses.--jh

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