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District's Private-School Aid Ruled Church-State Violation

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New York City's federally supported compensatory-education program, in which some public-school teachers conduct remedial classes in private religious schools, violates the constitutional separation of church and state, the U.S. Court of Appeals for the Second Circuit has unanimously ruled.

The First Amendment's prohibition against the governmental establishment of religion "constitutes an insurmountable barrier to the use of federal funds to send public schoolteachers or other professionals into religious schools," the court held, overturning a lower court's ruling in Felton v. U.S. Department of Education.

Similar Case

The court's July 9 decision is similar to that reached by another appeals court last September in a Michigan case involving the use of3state and local public-school funds in a "shared-time" program between public and private schools. That case, Grand Rapids v. Ball, has been accepted by the U.S. Supreme Court and will be heard in the next session.

The defendents in the Felton case--the New York City Board of Education, the U.S. Education Department and four parents of nonpublic school students who receive Chapter 1 aid--have also appealed to the Supreme Court to review their case. The Justice Department, which represents the Education Department in court, has asked that the case be set for an expedited briefing schedule before the Court and that it be heard together with the Grand Rapids case in December, according to Charles Wilson, a Washington lawyer representing the parents.

The two cases could set new precedents for the use of public funds to assist private-school students, experts in church-state issues say.

"What we are talking about is whether you can ever send public- school teachers into nonpublic schools," said Gerald Young, a lawyer in the Michigan attorney general's office assigned to the Grand Rapids case.

'Entanglement' Foreseen

In the Felton decision, the Second Circuit panel drew upon the Supreme Court's "three-part test," first enunciated in 1947, regarding the relationship of church and state: Does the program in question have a secular purpose? Does its primary intent neither advance nor inhibit religion? And does it foster "an excessive entanglement with religion?"

The three-judge panel did not contend that New York's Title I (since renamed Chapter 1) program advances religion. The judges chose to focus on the third part of the test, arguing that the safeguard procedures that would be necessary to guarantee that public-school personnel regularly employed in private sectarian schools did not in some way advance religion would in themselves constitute "an excessive entanglement" of state and church.

Their analysis of the Supreme Court's various rulings on public aid to religious schools, the judges said, "leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary or secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school."

"The Supreme Court's Establishment Clause jurisprudence," the ruling adds, " ... has been entirely consistent on the point that whatever forms of state aid may be given to religious elementary or secondary schools, these must not create a risk, sufficiently significant to require policing, that the public-school personnel will act, even unwittingly, to foster religion."

Chapter 1 Program

In 1981-82, about 10 percent of New York City's students who received Chapter 1 aid attended religious schools, according to the text of the court's decision.

The program at issue in the case involves a corps of itinerant public-school teachers who teach remedial academic courses and provide guidance counseling to disadvantaged students in nonpublic schools as well as in the city's public school system. The Chapter 1 program reaches some 231 nonpublic schools that enroll 13.2 percent of New York City's student population. The number of participating teachers depends upon the numbers and needs of students in any given year.

The program will remain in place pending the city's appeal, according to a spokesman for the board of education.

Cases Pending Elsewhere

On a national basis, about 5 percent to 6 percent of the students who benefit from Chapter 1 funds attend nonpublic schools, according to John Staehle, acting director of compensatory education in the U.S. Education Department.

Federal-court decisions on the use of Chapter 1 funds in nonpublic schools also are pending in Missouri and Kentucky, according to Joseph Conn, a spokesman for American United for Separation of Church and State.

The Grand Rapids case, however, does not involve federal funds. In that case, the State of Michigan has appealed a ruling by the U.S. Court of Appeals for the Sixth Circuit declaring unconstitutional programs in Grand Rapids in which public-school teachers taught courses in some private-school classrooms leased by the local school district. The appeal was filed without the approval of the State Board of Education, which in March urging that it be dropped. The board is "split philosophically" over the church-state issue, said a spokesman.

'Shared-Time' Classes

About 10,000 private school students participated in Michigan's shared-time program, until a federal judge ruled against it in 1982. Grand Rapids also offers "community education" courses after after school hours.

The Grand Rapids classes are open to all students, in public and private schools. Officials from local public and private schools have said the classes do not replace courses that private schools would be required to offer.

The participating private-school students are classified as part-time public school students. The state last year provided $6 million to Grand Rapids for its part-time student programs, and the city spent $3 million, according to Mr. Young, the Michigan attorney.

Complaint by Parents

The complaint in the Felton case was filed initially in 1978 by six parents who said the city program violated the separation of church and state. Its consideration was delayed, pending determination of a similar case--National Coalition for Public Education and Religious Liberty v. Harris--in which a complaint similar to Felton's was dismissed. The Felton stay was vacated in 1982, and in October 1983, U.S. District Judge Edward R. Neaher dismissed the complaint by the six parents. The Second Circuit reversed the dismissal in its July 9 ruling.

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