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Court Tests Seen On Chapter 2 Aid To Church Schools

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The U.S. Supreme Court decision that barred publicly paid teachers from parochial-school classrooms jeopardizes other federal programs that finance instruction in religious schools, lawyers and educators say.

"It is only a matter of time before all federal programs on private-school premises are challenged," the Council of Great City Schools, a coalition of 35 of the biggest school districts, recently advised its members.

The program believed to be in the most immediate jeopardy is Chapter 2 of the Education Consolidation and Improvement Act of 1981, which authorizes $500 million for education block grants to states, about 15 percent of which flows to students in nonpublic schools.

The Supreme Court has upheld public aid for certain services, such as transportation and textbooks, that directly benefit religious-school students but not the schools per se. But experts say block grants provide unrestricted money to private schools that underwrites the type of instructional aid invalidated by the Court's July 1 decision in Aguilar v. Felton.

The federal special- and bilingual-education programs also permit instruction in private religious schools and could be challenged in the courts. But experts say these programs are less vulnerable than Chapter 2.

A Rhode Island suit challenging Chapter 2 aid to religious schools, on hold since 1983, was activated after Felton was handed down.

Americans United for Separation of Church and State, an advocacy group, is also "looking for a good Chapter 2 case" to go after, according to its counsel, Lee Boothby. Because so few regulations apply to block grants, "Chapter 2 is a bigger violator than Chapter 1," he said. The current issue of the organization's magazine, Church and State, notes instances in which private schools used Chapter 2 money for administrative purposes.

In the Rhode Island suit, a taxpayers' group supported by the American Civil Liberties Union claims that the block grants cause excessive entanglement between church and state in administering the aid, the constitutional flaw of the Chapter 1 program invalidated in Felton. In fact, the group's brief in Taft v. Pontarelli--filed in federal district court in Providence--uses a line of argument identical to the Supreme Court majority's in Felton.

It contends not only that Chapter 2 money allows religious schools to buy materials that can be used for religious instruction, but that "the continuous and systematic surveillance necessarily required to ensure that such divertable goods and services are not in fact diverted to sectarian purposes would itself constitute an impermissible entanglement of government and religion."

The Felton ruling leaves school districts and policymakers in a "Catch-22" situation, Associate Justice William H. Rehnquist noted in his dissent. "Aid must be supervised to ensure no entanglement, but the supervision itself is held to cause an [unconstitutional] entanglement," he wrote.

The decision invalidated the way that most school districts provide federal remedial education for near-ly 183,000 religious-school students nationwide. School officials say the ruling has left them in a legal and logistical quagmire as the school year approaches.

Like Chapter 1, P.L. 94-142, the Education for All Handicapped Children Act, mandates equitable services for public- and nonpublic-school students.

In 1983-84, about 4.3-million students received aid under P.L. 94-142; about 75,000 attended nonpublic schools, and many of these pupils were served by public-school teachers on premises of their school, according to a spokesman for the federal special-education office.

In a broad interpretation of Felton, Superintendent of Public Instruction Phillip M. Runkel of Michigan has told local officials that no instructional services can be delivered on the premises of religious schools, according to his spokesman, Tom Farrell.

This order applies to state- and federally financed special-education aid received by nearly 5,000 nonpublic-school students, said Mr. Farrell. It does not apply to Chapter 2 grants.

William Schipper, executive director of the National Association of State Directors of Special Education, suggested that dismantling special-education programs in religious schools, as Mr. Runkel has ordered, would not pose as great a logistical problem as reorganizing Chapter 1 activities, and that such programs also are not as likely to be challenged in court.

"Who the heck is going to bring a court suit over a couple of handicapped kids" in a religious school, said Mr. Schipper.

Federal officials are not expected to issue regulations or guidelines applying Felton to P.L. 94-142, Mr. Schipper said, so the decisions will be left to states. He added that they are weighing several options--chief among them either to follow Michigan's lead or to leave such decisions to local education agencies.

Despite the worries expressed by the Council of Great City Schools and others, it appears that Felton may not endanger federal bilingual-education aid for private-school students.

According to the most current national statistics from the National Clearinghouse for Bilingual Education in Arlington, Va., 6,012 private- and religious-school students received federal bilingual aid in 1981-82, out of a total of about 295,000 students overall.

But none of this aid is used on the premises of the private schools, according to Paul Balach, an aide to the Education Department's director of bilingual education and minority-languages affairs, Carol Pendas Whitten. Mr. Balach said participating private-school students are typically bused to public schools or taught at a neutral site with public-school students.

Meanwhile, the Americans United group has threatened further legal action on the issue of aid to religious-school students.

In an Aug. 16 letter to Mr. Bennett released last week, the group said compensatory-education vouchers--which the Secretary has promoted as a way to nullify Felton--"can only result in years of further litigation and more uncertainty."

Mr. Boothby of Americans United said last week that his group is studying whether Secretary Bennett is personally liable under Section 1983 of the Civil Rights Act of 1871 for seeking to stall immediate implementation of Felton. Americans United would have to prove that he is failing to obey the Constitution, as interpreted by the Supreme Court.

Mr. Bennett has told states that the Education Department would support their efforts to delay implementation of Felton for a year.

"Courts liken violations of known constitutional rights, including those related to the separation of church and state, to intentional torts where damages are awardable even in absence of proof of actual damage," the National School Boards Association advised its members following Felton.

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