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Lawsuit Challenges Chapter 1 and 2 Aid To Church Schools

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A group of parents in San Francisco has filed what lawyers say is the broadest challenge to date to the provision of Chapter 1 and 2 services to students in sectarian schools.

The parents charge that the federal remedial-education and block-grant laws' requirement that children in church-affiliated schools receive "equitable" services is, in and of itself, a violation of the First Amendment's ban on state establishment of religion.

Similar pending lawsuits in other states--and prior rulings by the U.S. Supreme Court--focus only on the constitutionality of the methods used to provide aid to students in such schools.

The U.S. Education Department, acknowledging that the case has national implications, has intervened in the suit to defend the programs' mandates.

"Until Chapter 1 and 2 are disengaged completely from the parochial-school operation, they represent entanglement of church and state," said Lee Boothby, a lawyer for the plaintiffs. "We believe that the Congress will have to make substantial changes in the law."

Philip H. Rosenfelt, deputy associate general counsel for the Education Department, said the suit "goes further than other cases in challenging the statutes." But department officials believe that "the statutes will be upheld," he added.

Mr. Rosenfelt said the Education Department would submit a response to the charges on Dec. 15.

The new legal move expands a class action filed in federal district court in November 1986.

Americans United for Separation of Church and State, a Maryland-based lobby that is financing the lawsuit, hopes the case will settle lingering questions about the U.S. Supreme Court's ruling in Aguilar v. Felton, said Joseph L. Conn, a spokesman for the group.

That July 1985 decision struck down as unconstitutional the practice of sending public-school teachers into parochial schools to provide Chapter 1 remedial instruction.

Initially, the plaintiffs in the San Francisco case, Walker v. San Francisco Unified School District, argued that district officials were denying public-school children their fair share of Chapter 1 services.

The parents claimed that the district improperly leased church-owned sites; provided mobile classrooms and vans for the exclusive use of parochial-school students; and deducted the cost of private-school facilities and transportation "off the top" of the district's Chapter 1 allocation, before funds were distributed between public- and private-school students.

The suit also alleged that Chapter 2 funds were being used to provide educational equipment and materials to parochial schools with "no adequate safeguards" that the assistance would be used "only for the teaching of secular subjects."

The plaintiffs also objected to a high-school program for pregnant girls that is operated jointly by the district and the Daughters of Charity of St. Vincent de Paul, a Roman Catholic religious order.

Amended Complaint

In their amended complaint, filed Nov. 17, the parents alleged that the programs' requirement of equal expenditures for parochial-school students results in unconstitutional aid to religious schools and the advance8ment of religion by the "symbolic union" of church and state.

Moreover, the programs are "permeated" with requirements that parochial-school officials be involved in deciding how and where Chapter 1 and 2 services are to be provided, according to the parents.

In practice, this gives religious authorities "veto power" over the district's decisions, and has the "real potential for excessive administrative and political entanglement," the parents charge.

Mr. Boothby also said the Chapter 1 law favors only certain religious schools that reach agreements with the district regarding how aid will be provided. For example, he said, a child in need of remedial instruction who attended a Seventh-Day Adventist school did not obtain services from the district.

Mr. Boothby said his clients filed the new complaint in response to an Oct. 14 ruling in the case by U.S. District Judge William H. Orrick. The judge held that the parents lacked standing as "federal taxpayers" to bring the suit because they had not challenged the constitutionality of the Education Consolidation and Improvement Act of 1981, the law that authorizes both Chapters 1 and 2.

Children 'Entitled'

Spokesmen for religious-school organizations last week harshly criticized the San Francisco parents' decision to broaden their suit.

"Americans United has been challenging Chapter 1 for years, and they're not going to stop until private-school children--mainly Catholic-school children--are out of the Chapter 1 program," said Richard E. Duffy, representative for federal assistance for the U.S. Catholic Conference.

If the suit is successful, he said, "it's going to throw ... eligible educationally disadvantaged, mostly minority, children out of a program they are entitled to."

Some 130,600 children in nonpublic schools received Chapter 1 services during the 1986-87 school year, according to a recent study by the Education Department's center for education statistics. Almost all of those children, the study found, were enrolled in sectarian schools.

Both Mr. Duffy and Mr. Rosenfelt said they believed that Supreme Court precedents support their view that the Chapter 1 and 2 mandates are constitutional.

In its prior decisions, Mr. Rosenfelt noted, the Court has chosen to address only the means by which the services are provided, and not whether the provision of services to parochial-school children is itself constitutional.

"The fact that they backed away from it in Felton is a bit of encouragement to us," Mr. Duffy said.

But Gwendolyn Gregory, deputy general counsel for the National School Boards Association, said the Felton ruling left the question of aid to parochial-school students open.

"There's a lot to be said for their argument," she said of the San Francisco plaintiffs. The "veto power" parochial-school officials have makes it "very difficult to administer that law without serious entanglement."

Lawsuits have been filed in several states stemming from the Court's ruling in Felton that Chapter 1 instruction must be neither "physically nor educationally identified with the functions of the private school."

In addition to the Walker case, the Education Department is a defendant in five other suits--in the District of Columbia, Kentucky, Missouri, New York, and Louisiana--involving Chapter 1 and 2 services to private-school students.

Americans United is financing four of those suits; the New York case was filed in May by the Committee for Public Education and Religious Liberty.

Most of the suits are in their preliminary stages, the groups said. In Louisiana, where Americans United is charging the state with unconstitutionally funding Catholic schools, the state's motion to dismiss the suit will be heard Dec. 16.

Last year, Rhode Island approved an out-of-court settlement in a case challenging Chapter 2 aid to church-affiliated schools.

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