The Education Department last Thursday provided guidance in the form of questions and answers to state education authorities on how to administer Chapter 1 remedial-education programs for religious-school students, following the U.S. Supreme Court’s ruling in Aguilar v. Felton.
Following are excerpts from the guidelines:
QAre Chapter 1 programs on nonreligious private-school premises affected by the Aguilar v. Felton decision?
ANo.
QDoes the term “teacher” as used in Aguilar v. Felton include other public-school personnel?
AThe second circuit opinion affirmed by the Supreme Court in Aguilar forbade “the use of federal funds to send public-school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services.” However the Supreme Court in an earlier case, Wolman v. Walter, distinguished the role of the diagnostician from that of the teacher or counselor with regard to services in private school. We view testing to select children as part of diagnosis; hence, on-premises testing for student selection is not prohibited under Aguilar.
QIf a local educational agency’s (lea) application does not provide for equitable services to private-school children, may a state educational agency (sea) approve it?
ANo. Furthermore, the lea has no authority to expend funds until the sea approves the application.
QHow are the services to private-school children to be monitored by the lea and the sea?
AThe lea and the sea must monitor services for private-school students in the same way they monitor services for public-school children. In addition, the sea must ensure that equitable services are provided to private-school students.
QWho is responsible for planning and implementing the Chapter 1 program for private-school children?
AAn lea must plan to provide Chapter 1 services to private-school children “in consultation with private-school officials.” However, the decision as to what to propose in its application rests with the lea and the decision as to what to approve rests with the sea.
QWhat criteria should an lea and sea consider to determine equitability?
AThe public- and private-school children must be considered as participating in the same project, not different projects--for which those children, all at certain grade levels, are selected on the basis of similar measures of educational need. The “equity” of services for private-school children can be assessed only by comparing those services to those provided for public-school children. The services may be considered equitable if--
The lea assesses, addresses, and evaluates the private-school children’s specific needs and their educational progress on the same basis as public-school children.
The lea provides, in the aggregate, about the same amount of instructional time and materials for each private-school child as compared with each public-school child.
The instructional services cost about the same. Chapter 1 requires “equal” expenditures for private- and public-school students. Thus the cost per eligible child must be considered in determining equitability. However, cost is not the sole means for determining equitability.
The private-school child has an opportunity to participate equitable to the opportunity of a public-school child. In one school district the opportunity may be at another site during the school day. In another, it may be outside of regular hours. Any alternative must be evaluated in light of local conditions. Other factors should be considered, including the level of educational services, the age of the children to be served, the time lost in travel, availability of transportation, distance, weather, supervision, safety, and the opportunity and the rate of participation.
QMay an lea revise its program for public-school students so that it is equitable with that for private-school students?
AYes. In some cases, it may be necessary to adjust the manner in which services are provided to public-school students.
QIf providing off-premises services requires additional costs, such as those for transportation, space, or administration, do they come from the lea’s whole Chapter 1 allocation or from that part of the lea’s Chapter 1 allocation which would normally go to serve private-school students?
AThese additional costs would come from the lea’s whole allocation, so that Chapter 1 instructional services may be provided on an equitable basis to both public- and private-school children.
QWhere an lea provides Chapter 1 services to nonpublic-school children in public schools, may the lea charge Chapter 1 a reasonable amount for the space used?
AYes. Reasonable and necessary costs for public-school space for the instructon of nonpublic-school students are allowable. Reasonable and necessary costs are those in excess of what an lea would incur in the absence of Chapter 1. For example, a classroom in a building already in use would not be an excess cost. Special costs incurred in preparing and maintaining it for occupancy for Chapter 1 would be allowable. Any such costs would be considered administrative and would come from the lea’s whole Chapter 1 allocation--not the portion for the instructional services to private-school children.
QIf private-school officials consider the Chapter 1 program offered by the lea to be inequitable, what can they do?
AThey may complain to the lea If no satisfactory action is taken, they may complain to the sea If still no satisfactory action is taken, they may complain to the Secretary. If appropriate, the Secretary takes the steps necessary to invoke a by-pass [in which the department provides services directly to the religious-school students, and deducts the appropriate costs from an lea’s allocation.]
