Published Online: April 23, 1997

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Supreme Court Split on Limits To Title I Aid

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Washington

The U.S. Supreme Court was deeply divided last week as it heard oral arguments on whether to overturn its 1985 ruling that barred public school teachers from providing remedial aid on the premises of religious schools.

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The case before the high court, essentially a reconsideration of the 1985 decision, could hold wide-ranging implications for various forms of government aid to religious schools, including vouchers.

But Walter Dellinger, representing the Clinton administration as acting solicitor general, told the justices they could reverse the ruling 12 years ago in Aguilar v. Felton without "any major doctrinal revisions" in church-state law.

The 5-4 Felton ruling held that the New York City school system violated the U.S. Constitution's prohibition against government establishment of religion by sending its teachers into religious schools to provide remedial classes to disadvantaged students under the federal Title I program.

Some legal experts view the ruling as a high-water mark for church-state separation, with the Supreme Court gradually relaxing limitations on government aid to religion since then.

Five of the nine justices said in an unrelated 1994 case that Felton should be overturned or at least reconsidered.

But other justices said during last week's proceedings that they have strong reservations about reversing the decision, suggesting such a move could pave the way for new forms of public support to religious schools.

"I don't see how we draw the line" between allowing public school teachers back into religious schools and authorizing other forms of aid, Justice David H. Souter said in the April 15 arguments. "We're still looking for a limiting principle."

Foot in the Door

Besides disagreeing sharply over the merits of overturning the earlier decision, the justices also were troubled by an important procedural issue: whether it is appropriate to use the same case to reverse a high court precedent.

Even in the rare instances when the court has overturned one of its precedents, it has always used new cases involving different parties.

"We say this is not a proper case" for considering the reversal of the 1985 ruling, said Stanley Geller, the lawyer for a group of New York City taxpayers who were behind the original challenge to the school district's Title I program in religious schools.

Justice Ruth Bader Ginsburg seemed to agree, suggesting that other cases pending in lower courts could present a more appropriate vehicle for reconsidering the issues in Felton.

"You have to get your foot in the door properly," she told Mr. Dellinger.

The procedural question is significant because it was already clear that a majority of the current justices have doubts about the continuing validity of the 1985 Felton ruling.

Encouraged by the apparent shift on the high court, the New York City school board in 1995 invoked a seldom-used procedure to ask a federal district judge for relief from the continuing injunction in the case. The district judge and a federal appeals court held that they could not grant relief from the injunction themselves because the Supreme Court had not yet expressly overruled Felton. ("N.Y.C. Seeks To Overturn Limits on Title I at Religious Schools," Feb. 28, 1996, and "N.Y.C. Gets Go-Ahead To Seek Felton Reversal," May 29, 1996.)

New York City then asked the high court to do what the lower courts said they could not: overturn the 1985 ruling. The school system was joined by a group of Roman Catholic school parents whose children benefit from Title I aid, as well as by the Clinton administration. ("Reversal of Ban on Title I Services in Religious Schools Asked," Nov. 6, 1996, and "Case Limiting Title I Gets New Day in Court," April 9, 1997.)

Practical Issues

During the oral arguments in the new appeal, Agostini v. Felton (Case No. 96-552), New York City Corporation Counsel Paul A. Crotty described the alternative delivery system devised for Title I services following the prohibition on sending public school teachers into religious schools.

The city spends some $10 million annually on alternatives to comply with the Felton ruling, some of which is covered by federal funds designated for that purpose, Mr. Crotty said.

Of a total New York City Title I population of some 260,000 students in recent years, about 22,000 students are in private schools, and most of those attend Catholic or Jewish elementary schools.

Approximately 11,000 of those children receive remedial instruction in vans parked near religious school sites, Mr. Crotty said. The rest receive help in neutral sites or through special computer programs.

The vans are "noisy" and "cramped, and there are no bathrooms," Mr. Crotty told the justices. "New York City schoolchildren who are poor and disadvantaged are not getting the education they need because of Aguilar," he said.

Justice Anthony M. Kennedy asked whether, even if the alternatives are "expensive and impractical, is establishment clause doctrine a question of practicality?"

Mr. Crotty said no, but added that the reversal of Felton was warranted by the court's shifting church-state law.

Teachers' Role

Justice Kennedy is among the five justices who questioned the Felton reasoning in a 1994 case, Board of Education of the Kiryas Joel Village School District v. Grumet, which dealt with special education services for children in a Hasidic Jewish community. ("Court Strikes District for Hasidic Sect," July 13, 1994.)

He said in a concurring opinion in that case that the Felton ruling "may have been erroneous."

The four others--Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas--called for its reversal in stronger terms.

Justice Scalia said in a dissenting opinion in Kiryas Joel that Felton was "hostile to our national tradition of [religious] accommodation" and "should be overruled at the earliest opportunity."

Last week, he told Mr. Geller, the lawyer for the taxpayers' group known as the Committee for Public Education and Religious Liberty, that there is a history of high court cases that permit the government to help religious schools in the secular side of their educational missions.

Justice Scalia cited Board of Education v. Allen, a 1968 case that authorized the state-subsidized loan of secular textbooks to religious school students, and Zobrest v. Catalina Foothills School District, a 1993 ruling that said the establishment clause does not prohibit a district from providing a sign-language interpreter for a deaf student attending a religious school.

"It seems to me there is not this clear line you're trying to draw," Justice Scalia said.

Mr. Geller responded by citing Lemon v. Kurtzman, a 1973 case in which then-Chief Justice Warren E. Burger distinguished between the loan of textbooks upheld in Allen and state subsidies for secular teachers in religious schools, which the court struck down in Lemon.

Chief Justice Burger had said that "in terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not."

Mr. Geller put it more bluntly last week by saying that public school teachers in religious schools might be "uncontrollable" and "unprofessional" and advance the school's religious goals.

That comment prompted a rebuke from Justice O'Connor.

"You can't expect this court to accept the argument that teachers are uncontrollable and unprofessional," she told Mr. Geller. "New York had 19 years of its Title I program without a single incident of a teacher inculcating religion, and it worked fine" until the Felton decision.

Justice O'Connor made the same point in her dissent to the 1985 ruling. Chief Justice Rehnquist, who was then an associate justice, joined her in the dissent. The only other current member of the court who participated in the 1985 case was Justice John Paul Stevens, who joined the majority opinion of then-Justice William J. Brennan Jr.

Procedural Puzzle

While a majority of the court may well be in favor of overturning Felton, there was considerable uncertainty last week about whether the procedural question would prevent the New York City appeal from being the vehicle for the reversal.

Some justices expressed the fear that if they approved of the procedure used by New York, any losing party in a Supreme Court case might return years later, when the law and the membership of the court had shifted, asking for reconsideration.

"I don't see how any losing litigant could be banned from returning" to the high court, Justice Souter said.

Justice Stephen G. Breyer wondered whether the U.S. secretary of education could initiate a test case of the restrictions on Title I that would allow the court to reconsider Felton without rehearing the same New York case.

Acting Solicitor General Dellinger said that lawyers in the Department of Education would surely advise the secretary that he must obey the rulings of the Supreme Court.

The justices should rule on the case by the end of their term in late June or early July.

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