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Published in Print: May 29, 1991, as Court Backs Rule On Chapter 1 in Religious Schools

Court Backs Rule On Chapter 1 in Religious Schools

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In a significant defeat for a coalition of public-education groups and advocates of strict church-state separation, a federal appeals court last week upheld as constitutional a controversial federal rule on the allocation of Chapter 1 aid to students in religious schools.

Overturning a lower-court decision in a Missouri case, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit held unanimously that the U.S. Education Department could force states and school districts to deduct "off the top" of their entire allocations under the federal remedial-education program certain extra costs of providing services to religious-school pupils.

The costs include the leasing of mobile vans or portable classrooms to provide the required services.

Splitting 2 to 1, the appellate panel also overturned the lower court's ruling that such vans or portable classrooms could not be placed on the property of a church-affiliated school. The appeals court said the units could be viewed as "religiously neutral" under the proper circumstances.

The May 21 decision was the first by a federal appellate court to address the constitutionality of the "off the top" formula and the use of mobile Chapter 1 classrooms on church-school property. Federal district courts have reached differing conclusions on those issues.

The Education Department adopted the funding rule in response to the U.S. Supreme Court's 1985 ruling in Aguilar v. Felton, which barred public schools from sending their employees into the classrooms of religiously affiliated schools to teach Chapter 1 classes. The rule was designed to make funding available for more expensive alter native means of providing the Congressionally mandated services to eligible children in religious schools.

Opponents of the regulation have charged that it promotes direct aid to religious schools in violation of the First Amendment's ban on state establishment of religion.

The Missouri case, Pulido v. Cavazos, was appealed by the federal government and cross-appealed on several points by the original plaintiffs, a group of Missouri taxpayers backed by Americans United for Separation of Church and State, a national advocacy group. The case is one of several being pressed nationwide by Americans United in an effort to challenge Chapter 1 services to students in religious schools. (See Education Week, May 22, 1991.)

Among the groups that joined in filing briefs against the federal government in the case were the National School Boards Association, the National Association of Secondary School Principals, the Council of the Great City Schools, and the American Federation of Teachers. The groups argue that the off-the-top formula results in an inequitable distribution of Chapter 1 funds that favors nonpublic-school students.

Advocates of strict separation of church and state, meanwhile, contend that the rule is a "transparent scheme" to divert federal tax dollars to religious schools.

"The [appeals] court seems to be saying that as long as government officials create the facade of equal treatment between public and parochial schools, virtually unlimited amounts of tax funds can be funneled to religious schools," Robert L. Maddox, executive director of Americans United for Separation of Church and State.

Etta Fielek, a spokesman for the Education Department, said, "We are very pleased. We think it is the correct decision."

In the wake of the Felton decision, school districts have struggled with the Congressional mandate that Chapter 1 services be provided "equitably" to eligible students in both public and nonpublic schools.

Under the limitations of the 1985 ruling, providing the same level of services to nonpublic-school children usually costs much more than serv4ing those in public schools, because it involves the extra expense of buying or leasing mobile classrooms or renting space at neutral sites.

The Eighth Circuit decision, written by Judge John R. Gibson, said it was wrong for U.S. District Judge Joseph E. Stevens Jr., of Kansas City, Mo., to reject the off-the-top rule based on an analysis of the higher per-pupil cost of serving nonpublic-school children. The plaintiffs had charged that under the formula, religious-school students in some communities were allotted seven times as much aid as those in public schools.

"The Supreme Court has rejected the claim that a statute is unconstitutional merely because a greater overall financial benefit accrues to parochial schools or their students than to public schools or their students," Judge Gibson wrote, citing the High Court's 1983 decision in Mueller v. Allen, which upheld a Minnesota program granting a tax deduction to parents for tuition and other costs charged by either public or private schools.

"We believe that the district court erred in striking down the off-the-top allocation based on a comparison of the costs of providing the services to parochial- and public-school students," the appellate judge wrote.

"Although it may cost more to provide Chapter 1 services to parochial-school students," he said, "the additional cost is required to give those students 'comparable services."'

"The off-the-top allocation," he continued, "is simply a response to the dilemma created after the Supreme Court's decision in Felton."

Sister Mary Ann Eckhoff, superintendent for education of the Roman Catholic Archdiocese of St. Louis, said she was happy with the decision. If the extra costs of complying with Felton were not deducted from the top of the state's Chapter 1 allocation, she asserted, "there would simply be no funding left for the program in our schools."

On the use of mobile classrooms on church property, the lower court had said that such vans could be parked on public property, even if they were directly adjacent to the religious school. But they could not be parked on church property, the district judge ruled, because they would be seen as an "annex to the mission of the church."

However, a majority of the appeals panel said the Supreme Court's concern in Felton was that public-school teachers were entering a "pervasively sectarian" environment to deliver Chapter 1 services.

The mobile vans in the Missouri case are operated by a private company contracted with by the U.S. Education Department under a "state bypass" arrangement, which allows the federal government to arrange for such services directly in cases where state law or local circumstances prevent channeling the funds through the state or local education agency.

The appeals panel found that because the vans are driven off the church-school property each day and are fully controlled by the private contractor, "we are convinced that the services are provided in a religiously neutral atmosphere and the units do not operate as 'annexes' of the public schools."

Judge C. Arlen Beam disagreed in a brief dissent, arguing that High Court precedent calls for any classroom in which church-school students are taught with public funds to be at a "neutral site." That, he said, would exclude vans either on the premises or at the curb of a church school.

Several other lawsuits affecting the Chapter 1 program are ongoing.

Americans United is backing the plaintiffs in several of the suits, including one in Kentucky that has been appealed to the U.S. Court of Appeals for the Sixth Circuit. In that case, Barnes v. Cavazos, a federal district court also struck down the off-the-top regulation.

A federal judge in San Francisco last month upheld the off-the-top rule in yet another case backed by Americans United. And a federal judge in Chicago is expected to rule soon in a suit filed by the school district there that challenges the rule.

Vol. 10, Issue 36, Page 1

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