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Judge Rejects E.D. Rule on Aid to Religious Schools

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For the second time in recent months, a federal judge has struck down an Education Department regulation governing the allocation of federal Chapter 1 remedial-education aid to students in church-affiliated schools.

Acting in a case brought by Kentucky taxpayers, U.S. District Judge Charles M. Allen ruled Feb. 21 that the regulation forcing school districts to deduct the cost of aiding parochial school students from "off the top" of their entire Chapter 1 allocation violates the First Amendment's ban on government establishment of religion.

The rule was adopted by the Education Department in response to the U.S. Supreme Court's 1985 decision in Aguilar v. Felton, which barred public schools from sending their employees to church-affiliated schools to teach Chapter 1 classes.

On Dec. 21, U.S. District Judge Joseph E. Stevens Jr., acting in a case brought by Missouri taxpayers, also struck down the off-the-top allocation rule, which was intended to provide funding for alternative means of providing Chapter 1 services to private-school students. (See Education Week, Jan. 10, 1990.)

The Education Department has appealed the decision in the Missou4ri case to the U.S. Court of Appeals for the Eighth Circuit.

'Egregious Violation'

Acting in Barnes v. Cavazos, in which the Education Department, state education officials, Jefferson County education officials, and the Roman Catholic Archdiocese of Louisville were defendants, Judge Allen found that by using the off-the-top method to lease mobile vans to provide remedial services at parochial schools, the amount of funds available for public-school students was reduced by more than $187,000.

"The off-the-top method directly benefits private-school students at the expense of public-school students," the judge ruled.

"This is the second federal court that has agreed with us that this is an egregious violation of church-state separation," said Joseph Conn, a spokesman for Americans United for Separation of Church and State, an advocacy group representing the plaintiffs in the Kentucky and Missouri cases, as well as those in a similar case pending in California.

Mobile Classrooms

In several other major aspects in the lawsuit, however, Judge Allen ruled for the defendants.

The use of mobile vans parked on public property near parochial8schools does not violate the Constitution's establishment clause, the judge said.

The judge also held that public-school officials could legally provide on-site remedial instruction to students at several religiously affiliated institutions for abused and neglected children.

The facilities, which include a Baptist center for children with behavioral problems and a Catholic orphanage, are not "pervasively sectarian," the judge ruled, even though some of the facilities require students to attend religious services.

In a statement released last week, the Education Department said it was pleased with the judge's rulings on the issues of mobile vans and religious institutions for neglected children. It disagreed with the court's ruling on the off-the-top allocation, and said that officials are considering whether to appeal it.

Department officials have argued that the off-the-top allocations are necessary to ensure that Chapter 1 services are provided equitably to public- and private-school students.

Critics such as Americans United, however, have charged that then-Secretary of Education William J. Bennett issued the rule to "circumvent" the Supreme Court's decision in the Felton case.

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