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N.Y.C. Gets Go-Ahead To Seek Felton Reversal

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A federal judge last week gave the New York City schools the go-ahead to seek a reversal of the 1985 U.S. Supreme Court ruling that barred public school teachers from providing Title I services in religious schools.

In a May 20 ruling, U.S. District Judge John Gleeson noted that five current members of the high court have questioned the validity of the decision in Aguilar v. Felton. "The life expectancy of [Felton] is, to put it mildly, subject to question," Judge Gleeson said.

He held that the New York City district, which was at the center of the original case, is on solid legal ground in its effort to return to the Supreme Court. The district's efforts could hold major implications for the delivery of Title I compensatory-education services at private religious schools nationwide. (See Education Week, Feb. 28, 1996.)

The $7.2 billion federal program channels money to schools to provide services for disadvantaged children. In Felton, the high court held that the presence of public school teachers in religious schools violated the U.S. Constitution's prohibition of government establishment of religion.

However, in a 1994 case that touched on Title I services, Board of Education of the Kiryas Joel Village School District v. Grumet, five justices suggested that the Felton ruling was hostile to the nation's tradition of religious accommodation and should be, at least, re-examined.

The New York City district asked Judge Gleeson last fall to grant it relief from Felton on the basis that the ruling has been undermined by the opinions in the Kiryas Joel case. The district cited what it sees as the enormous expense and inefficiency of the alternatives to allowing Title I teachers into religious schools.

In many cases, districts must use mobile vans or rent space near a religious school. U.S. Secretary of Education Richard W. Riley, citing the cost of such alternatives, last fall backed the idea of overturning Felton. (See Education Week, Nov. 1, 1995.)

'First Step'

Judge Gleeson said he could not overrule a Supreme Court precedent on his own. But, he added, the district "should be permitted to seek the reconsideration of [Felton] that a majority of the Supreme Court appears willing, if not anxious, to undertake."

Since the judge denied the district's motion for relief, the district has the right to appeal, which is essentially what it wanted.

"This was just the first step in this effort," said Marilyn Richter, a lawyer for the district.

The district's motion was opposed by the National Committee for Public Education and Religious Liberty, or PEARL, an advocacy group that backed the original challenge in Felton. The New York City-based group argued that the motion allows the district to relitigate the case before a new set of more sympathetic justices.

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