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Court Upholds Rule on Chapter 1 Aid to Religious Schools

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In the third decision of its kind in the past two months, a federal court in Chicago has upheld the U.S. Education Department's rule on the allocation of Chapter 1 remedial-education aid to students in religious schools.

The Chicago public schools had challenged the so-called "off the top" funding formula, which stipulates that certain extra expenses related to the delivery of remedial-education services to students in church-affiliated schools be deducted from a district's entire Chapter 1 allocation, instead of from the portion set aside for the private-school students.

The extra expenses--sometimes referred to as "Felton costs"--stem from the U.S. Supreme Court's 1985 decision in Aguilar v. Felton. In that ruling, the Court prohibited public schools from sending teachers into religious-school classrooms to deliver Chapter 1 lessons.

In response, many districts have purchased mobile vans or leased space at neutral sites to serve eligible church-school pupils.

The Education Department's4funding rule says the added costs of such options are to be considered administrative expenses, and must be deducted off the top of a state or district's entire Chapter 1 allocation.

The Chicago district challenged the rule on both administrative and constitutional grounds, arguing that it robbed public-school students of federal remedial aid.

Because of the off-the-top formula, the district argued, Chicago's Chapter 1 funding for public-school students was reduced by $433,251 in 1989-90, and, as a result, 1,064 eligible students had to be cut from the program.

In the current school year, the district said, $468,400 less will be available to public-school students, resulting in at least 360 students being eliminated.

The district estimates that 65,501 public-school students will receive Chapter 1 services this year; 8,250 private-school students, most of whom attend Roman Catholic and other religiously-affiliated schools, will also be served.

The $468,400 in estimated Felton costs for 1990-91 will be used to lease three neutral sites and 30 mo8bile classrooms to serve private-school students, according to court documents.

U.S. District Judge Paul E. Plunkett rejected the district's argument that the extra costs of complying with the Felton decision should not be considered administrative expenses, and thus should not be deducted off the top of its Chapter 1 allocation.

The Congress clearly intended that "all eligible students receive an equal measure of remedial instructional support," Judge Plunkett wrote. "If the Felton costs are to be deducted from the allotment to the sectarian schools only, then the private-school students will be disadel10lvantaged inordinately in terms of the much-depleted sum that remains to provide instructional services in those Felton facilities."

The judge, who issued his ruling as a summary judgment on May 15, also found that the off-the-top formula does not violate the First Amendment's ban against government establishment of religion.

The judge analyzed the regulation under the Supreme Court's three-pronged test, enunciated in the 1971 case Lemon v. Kurtzman, for determining whether a public policy violates the Establishment Clause.

The judge paid careful attention to whether the policy had the "primary effect of advancing religion" by aiding "the religious component of the sectarian schools."

He concluded that there was no risk "that any of the Felton 'off the top' monies will be channelled into non-secular activities in the sectarian schools."

Officials of the Chicago public schools could not be reached last week for comment on the ruling.

The ruling in the Chicago case, Board of Education of the City of Chicago v. Sanders, is consistent with two other recent rulings on the Chapter 1 regulation.

In April, a federal district judge in San Francisco upheld the off-the-top rule in Walker v. San Francisco Unified School District. The challenge had been backed by the advocacy group Americans United for Separation of Church and State. (See Education Week, April 10, 1991.)

Late last month, the U.S. Court of Appeals for the Eighth Circuit overturned a lower-court decision against the off-the-top formula in Pulido v. Cavazos. The challenge in the Missouri case was also backed by Americans United. (See Education Week, May 29, 1991.)

The Education Department's appeal of a federal district ruling against the off-the-top rule in a similar case in Kentucky was heard last fall. A decision in that case, Barnes v. Cavazos, is expected soon from the U.S. Court of Appeals for the Sixth Circuit.

Some of these other cases have also included challenges to the school district's placement of mobile classrooms on the property of church-affiliated schools. However, the Chicago case involved only the off-the-top funding formula.

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