Divided Court Rejects Title I Services Ban

By Mark Walsh — July 09, 1997 8 min read

Public school teachers will be heading back into religious schools this fall to provide remedial services to needy students, thanks to the US. Supreme Court’s reversal of a 1985 decision that had relegated such classes to mobile vans and other sites. The Department of Education will advise school districts in coming weeks that there is no reason to delay implementing the high court’s 5-4 decision that the U.S. Constitution does not prohibit Title I instructors from serving eligible religious school students on the premises on their schools.

“They can begin an immediate transition,” Mary Jean LeTendre, the director of the Title I program for the department, said last week.

The department will also advise that federal money set aside to pay for mobile vans and other alternative means of serving Title I children may now be used to buyout the leases for such vehicles or for “neutral sites” off religious school campuses where Title I services had been provided, Ms. LeTendre said. (See Education Week, April 9, 1997.)

Meanwhile, educators and legal expert stepped up their debate over the broader impact of the court’s June 23 decision in Agostini v. Felton (Case No. 96-552). Many advocates of school choice argue that the ruling has opened the door for voucher programs in which the government would pay for children to attend religious schools. Others see it as a limited ruling that would not allow government funding to reach the treasuries of church-affiliated schools.

Although needy students in religious schools qualify for federal remedial help under Title I, no public money goes to their schools.

Precedent Overturned

In Agostini, the high court overturned its 12-year-old decision in Aguilar v. Felton, an earlier version of the same case in which the court had ruled that sending public school teachers into religious schools violated the First Amendment’s prohibition against government establishment of religion.

Both rulings involved New York City’s Title I program. Writing for the majority in the new case, Justice Sandra Day O’Connor declared that sending Title I teachers into religious schools with the right safeguards “does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion. It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement” with religion.

The court also overruled part of a companion case to the 1985 Aguilar ruling, School District of Grand Rapids v. Ball. In that case, the court had struck down the Michigan district’s Shared Time program, a purely local program that provided not only remedial instruction similar to Title I but also enrichment classes in subjects that were not part of the core curriculum of the private schools.

Justice O’Connor wrote in Agostini that two high court rulings since 1985 have significantly altered the church-state landscape and undermined the Aguilar ruling and the part of the Ball ruling striking down the Shared Time program.

The first was a 1986 ruling in Witters v. Washington Department of Services for the Blind, in which the court upheld a vocational-tuition grant for a blind student who wished to use it to attend a Christian seminary. The second was the court’s 1993 ruling in Zobrest v. Catalina Foothills School District, which authorized a school district to provide a sign language interpreter for a deaf student attending a Roman Catholic high school. (See Education Week, March 3, 1993.)

Zobrest and Witters make clear that, under current law, the Shared Time program in Ball and New York City’s Title I program in Aguilar will not, as a matter of law, be deemed to have the effect of advancing religion through indoctrination,” Justice O’Connor said.

She was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Writing the main dissent, Justice David H. Souter said the result of the majority’s ruling was to “authorize direct state aid to religious institutions on an unparalleled scale.”

Justice Souter stressed that the aid authorized in Witters and Zobrest was isolated and came as a result of private decisionmaking. He expressed fear that the ruling will allow the government to pay for “the entire cost of instruction provided in any ostensibly secular subject in any religious school.”

Justices John Paul Stevens and Ruth Bader Ginsburg signed on to all of Justice Souter’s dissent; Justice Stephen G. Breyer signed part of it.

Impact on Schools

Even before last month’s ruling, New York City public school officials had begun surveying religious schools to determine whether they had space for the return of Title I teachers. Many public school groups, despite their traditional support for a strong separation of church and state, had come to dislike the 1985 Aguilar ruling because of the extra costs and burdens it imposed on serving religious school children.

Children in private schools, including religious schools, have been eligible for Title I aid ever since the program was first passed by Congress in 1965.

New York City took more than $6 million off the top of its Title I allocation this year to cover expenses associated with mobile vans and other alternative sites for Title I classes, said Peggy Weiss, who oversees the district’s remedial education program for private school students.

Many educators are eager to bid the familiar blue mobile vans goodbye. “Teaching in those vans is noisy, slanty, and fumy,” said Jim Mahoney, the associate superintendent of the Roman Catholic Archdiocese of New York.

At Sacred Heart Primary School in the Bronx, some 70 Title I students have had to walk one block to receive services in a mobile unit.

“From a practical point of view, having the teachers back in school will be much better for the students to spend time on task,” the school’s principal, Joanne Walsh, said. “It just makes more sense.”

For the New York City school system, the change it fought hard to win will not mean a windfall in Title I money that can be directed to the classroom. The company that provided mobile classrooms for the system, perhaps fearing the overturning of the Aguilar decision, insisted three years ago on a five-year lease. The board of education will have to pay some 27 million over the next two years for vehicles that it mostly will not need.

“The board of education will find some uses for those buses,” Ms. Weiss said. “We have overcrowding in the public schools.”

Other districts have suggested they may face difficulties in returning Title I teachers to religious schools. Some are under lease to use classrooms in offices and other “neutral sites.” In other cities, overcrowded religious schooIs lack the space to add Title I classes.

Breaking the Lease

Ms. LeTendre of the Education Department said federal officials hope to issue a question-and-answer guidance document to administrators by July 18. The department will emphasize that districts may use federal money designated for Aguilar-related costs to break leases for mobile units or classroom space.

The Clinton administration has asked for $41 million for Title I “capital expenses” for next year, the same level as in this year’s federal budget. Some 173,000 children in private schools nationwide receive Title I services. The vast majority of the students attend religious schools.

Ms. LeTendre said that given the Agostini ruling, the funding for alternative delivery methods will likely end after the 1998 budget year. “We don’t want to continue arrangements that should be facilitated other ways,” she said.

Voucher Questions

The bigger issue is the Agostini ruling’s impact on other forms of government aid to religious schools. Voucher supporters found much to like in Justice O’Connor’s opinion.

“The decision should clear the way for more successful choice efforts, like those we currently advance in Milwaukee, Cleveland, and Vermont,” said Clint Bolick, the litigation director of the Washington-based Institute for Justice, a conservative legal-advocacy group.

Mr. Bolick has already filed a brief with a Wisconsin court that is reviewing whether expanding the Milwaukee voucher program to religious schools would pass constitutional muster.

However, a judge in Vermont took Agostini into account late last month and still ruled that a school district could not pay to send children to a Catholic high school.

Secretary of Education Richard W. Riley also went out of his way to argue that the ruling-which the Clinton administration supported--was not a boost for vouchers. The decision “did not address the constitutionality of vouchers,” he said in a statement late last month.

But some advocates of strict church-state separation were more troubled. The ruling is an “invitation for greater subsidization of religious schools,” said Steven Green, the legal director of Americans United for Separation of Church and State. The Washington-based group was behind the challenge to the Grand Rapids district’s Shared Time program for private schools. Mr. Green said he fears that with the court’s partial overturning of Ball, “sympathetic school districts will push the envelope” on remedial and enrichment programs for religious schools in their areas.

Lisa H. Thurau, the executive director of the National Committee for Public Education and Religious Liberty, said any challenge to government aid to religious schools will be more difficult under Agostini. “The prohibition on direct aid to religious schools has been eviscerated by this Supreme Court,” asserted Ms. Thurau, whose New York City-based group, known as PEARL, was behind the original 1978 lawsuit that challenged the city’s Title I program in religious schools.

The name of one of PEARL’s original plaintiffs is associated with both the 1985 and 1997 high court rulings. Betty-Louise Felton was a public school parent who argued that public money should not be diverted to religious schools. Now in her 70s, she left New York City several years ago for California, Ms. Thurau said.

The other key names in the cases belong to Catholic school parents who intervened to support providing Title I services in religious schools. Yolanda Aguilar, whose name appear on the 1985 high court ruling, was replaced at a later stage of the case when her children left school by another New York City parochial school parent, Rachel Agostini.

A version of this article appeared in the July 09, 1997 edition of Education Week