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Lawsuit Challenges New York City's Felton Remedies

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The New York City school system's Chapter 1 program is still violating the constitutional separation of church and state, according to a lawsuit filed by the advocacy group that initiated the Aguilar v. Felton case.

The Committee for Public Education and Religious Liberty, in a statement explaining the suit filed late last month, charges that mobile vans, leased facilities, and "segregated classrooms in public schools'' are unconstitutional means of providing remedial services for religious-school students.

According to PEARL, an estimated $9 million spent by the New York City Board of Education on such arrangements this year "reduces the available [Chapter 1] services for eligible public-school pupils and discriminates in favor of religious-school pupils.''

Some of the instructional sites, "in effect, serve as annexes to the religious schools,'' the group argues, "symboliz[ing] government support of the schools and their religious mission.''

In its 1985 Felton decision, the U.S. Supreme Court outlawed the 20-year-old practice of sending public-school teachers into sectarian schools to teach classes under the federal Chapter 1 program. New York's school board was given until this year to come up with a constitutionally acceptable way to serve children in 241 religious schools eligible for federal aid.

In an "alternative plan,'' adopted in the spring of 1986, the board voted to transport "approximately 80 percent'' of the religious-school students to public schools for compensatory education. Where that was impractical, "mobile instructional units'' and nearby "neutral sites'' were to be used.

These ways of meeting Felton's requirements were authorized in guidelines issued by the U.S. Education Department, which was named as a defendant in PEARL's lawsuit, along with the city school board and the New York State Department of Education.

Lisa Thurau, PEARL's executive director, complained last week that the board has expanded the number of schools using mobile vans from 43 to 72 to accommodate the wishes of religious-school officials. Also, she questioned the neutrality of classrooms leased from religious institutions.

In addition, Ms. Thurau criticized the practice of financing the special classrooms and transportation "off the top'' of Chapter 1 appropriations--that is, before instructional assistance is divided proportionally among eligible public- and private-school programs. Again, this response to Felton was sanctioned by federal guidelines.

New York City received $212 million in Chapter 1 aid in 1985-86, with about 85 percent going to the public schools and 15 percent to private schools.

"Time after time, these plans are being made at the expense of services for public-school children,'' Ms. Thurau said. "It's time that boards of education be called on the carpet for giving so much preferential treatment to private-school children.''

Robert Terte, a spokesman for the New York City board, declined comment on Ms. Thurau's charges or on PEARL's lawsuit other than to say that the number of mobile classrooms has not increased since last fall. School officials will respond in court, he said.

Potential Precedent

PEARL's latest lawsuit, filed in U.S. District Court for the Southern District of New York, is similar to a class action brought against the San Francisco public schools by Americans United for Separation of Church and State. (See Education Week, Nov. 26, 1986.)

Either or both of these cases could resolve several lingering questions about the meaning of Felton. Of these, perhaps the most important is: How should public-school districts fulfill their obligation to provide equitable Chapter 1 services for needy children in religious schools, while avoiding impermissible "entanglements'' between church and state?

Joan Bourgeois, New York State's assistant commissioner for nonpublic schools, last week said she had not seen PEARL's legal complaint. But she defended New York City as "trying to make the best of a very unfortunate and difficult situation.''

Morton Avigdor, associate counsel for Agudath Israel, an association of Orthodox Jewish schools, characterized PEARL's lawsuit as "an attack on children.''

Mr. Avigdor, noting that PEARL also filed the Felton suit, criticized as "an outrageous claim'' the allegation that the city is discriminating against public-school students by diverting Chapter 1 funds to comply with Felton. "It's the same claim as the fellow who shoots his father and mother and then pleads, 'I'm an orphan,'' he said.

Segregation of religious-school students when they receive Chapter 1 instruction in public schools is justifiable for practical reasons--to avoid disruptions for both educational programs--and also for religious reasons, Mr. Avigdor added. For example, Hasidic Jewish schools insist on segregating children not only by religion, but also by sex.

"People should not have to choose between practicing their religion and receiving government benefits,'' he argued. PEARL, however, has challenged the New York City school board's alleged accommodation of the Hasidims' sex-segregated Chapter 1 classes as a civil-rights violation.

Decline in Services

According to Mr. Avigdor and Msgr. Vincent Breen, superintendent of Roman Catholic schools in Brooklyn, N.Y., the Felton decision has terminated Chapter 1 instruction for 55 percent to 60 percent of religious-school children in New York City who were previously served.

About 21,000 such students were enrolled in Chapter 1 classes in 1985-86, according to the board of education.

"Poor youngsters--many not Roman Catholic--from economically disadvantaged parts of the city are being denied help they would otherwise receive,'' Monsignor Breen said. And for the minority of such students receiving remedial services, he added, transporting them to public schools is a waste of valuable instructional time.

Monsignor Breen dismissed as "silly'' PEARL's claim that mobile classrooms are no more than annexes to parochial schools. "They're painted all over with 'City of New York,'' he said.

The U.S. Education Department's guidelines permitting the use of mobile classrooms are firmly grounded in "existing case law,'' said Wendell L. Willkie, the department's general counsel. "We were very careful to assure flexibility to school districts, but at the same time to provide guidance that would survive legal challenge.''

He added, however, that segregated Chapter 1 classes within public schools is "an issue we're looking at.''

'Complicating' Felton

Mr. Willkie criticized PEARL for seeking "to make the task of implementing Felton far more complicated than it already is, and perhaps even precluding any services to private-school children at all.''

"But we are confident we can defend our guidance,'' he said.

On PEARL's contention that noninstructional costs should not come "off the top'' of Chapter 1 appropriations, Mr. Willkie said: "Keep in mind that only about 5 percent of the eligible children [nationwide] are in private schools. If you took [transportation and rental expenses] solely from whatever percentage was allocated to the private-school children, there's no way you'd have equitable services.''

Mr. Willkie accused PEARL of opposing any Chapter 1 services for children in nonpublic schools, even though the U.S. Supreme Court has upheld their right to federal assistance.

The group has argued that religious-school students should receive compensatory classes only on public-school premises--in nonsegregated settings and at no financial loss to public-school compensatory programs.

Legislation recently approved by the U.S. House Education and Labor Committee would authorize $30-million annually to help districts comply with Felton, but PEARL's director expressed reservations about the provision.

"It would make some modicum of sense'' as an alternative to dipping into the public-school share of Chapter 1 appropriations, she said.

"But it's opening up a terrible Pandora's box,'' because the amount could be increased in later years, she said. Also, religious groups would still be "getting a free ride on the back of the state,'' she added.

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