E.D. Officials at Odds Over Rights Rules Under Chapter 2

By James Hertling — November 07, 1984 8 min read

Washington--Officials of the Education Department apparently cannot agree on whether private schools whose students participate in the Chapter 2 block-grants program must comply with all federal civil-rights laws, recent interviews indicate.

Although officials in the department’s office for civil rights said last week that private schools involved in the Chapter 2 program must abide by laws barring discrimination on the basis of race, sex, and handicap, the Secretary of Education’s special assistant for private education said that the schools are not necessarily bound by all of these civil-rights statutes.

In addition, representatives of the two offices disagreed on whether the department would provide school officials with additional guidance on the subject in the future.

The nettlesome question of whether private schools participating in federally assisted programs must abide by the civil-rights statutes was raised most recently when the department noted--but did not address--the issue in its recent rebuttal to an April 1984 report by the American Association of School Administrators. (See Education Week, Oct. 24, 1984.)

Questions Raised

The aasa study, which suggested that private-school students have benefited disproportionately from the block-grants program, called for federal guidance on the applicability of the civil-rights laws to nonpublic schools involved in the program.

The aasa report alleged that private schools whose students benefit from the Chapter 2 program “frequently” are not made to sign “any statement of compliance” with federal civil-rights statutes by local educational agencies.

The group called for guidance from the department “to avoid the possibility that those in public schools administering the program could be charged with violation of federal law by distributing these funds to private schools which are not in compliance with federal laws.”

The Education Consolidation and Improvement Act of 1981, which merged some 30 categorical programs into the Chapter 2 block grant, designates state departments of education and local education agencies, or lea’s, as the conduits for the funds.

Officers of the Council of the Great City Schools are “very concerned that they are liable for civil-rights violations of the private schools,” according to Michael D.3Casserly, a legislative associate with the organization, which is composed of 35 of the nation’s largest school districts. He added that there is “no way” for public schools to monitor private schools’ compliance.

Regulatory History

In November 1982, the Education Department published regulations for Chapter 2 stating that departmental policy in effect at that time required private schools involved in the program to comply only with Title VI of the Civil Rights Act of 1964--the statute barring discrimination on the basis of race and national origin--but not with laws protecting the rights of women and the handicapped.

The regulations stated that “issues pertaining to civil-rights applicability to participation of children in private schools” were under study and, as appropriate, would be clarified in nonregulatory guidelines “or by other means.” However, nonbinding Chapter 2 guidelines published by the department in July 1983 did not address the issue, and there have been no other directives from the department since that time, observers say.

Nevertheless, Laurie Snow, a spokesman for ocr, said last week that the civil-rights office is holding local school districts responsible for assuring that participating private schools comply with Title VI, as well as Title IX of the Education Amendments of 1972 and Section 504 of the Rehabilitation Act of 1973. She also indicated that no new guidelines on the subject are anticipated.

‘In the Hot Seat’

School districts “are really in the hot seat,” acknowledged Charles J. O’Malley, the Secretary of Education’s executive assistant for private education. He said that a group of department officials has been working for two years to fashion some type of guidance on these questions.

Gilbert D. Roman, the ocr regional director in Denver, said, “I can assure you that my office and my colleagues are all ... applying Section 504, Title IX, and Title VI,” to private schools in the Chapter 2 program.

“I would hold an lea responsible for violations in the private schools,” he said.

But E.C. Church, director of federal and state programs in the 107,000-student Memphis school district, said, “I don’t know how we can be held responsible when we don’t have any authority” to monitor private schools or to enforce the laws.

The district in Memphis requires only that private schools--more than 12,000 of whose students benefit from Chapter 2 funds--assure compliance with Title VI, according to Mr. Church.

Mr. Church also complained that lea’s get no money to cover the administrative cost of “monitor[ing] all the private schools.”

Definition at Issue

In an interview last week, Mr. O’Malley seemed to reiterate the position he stated in commenting on proposed regulations in March 1982, when he said that regulations requiring private schools to abide by the civil-rights statutes would “constitutionally cloud the distinction between ‘aid to private schools’ and the ‘child-benefit theory’ utilized in passing the Elementary and Secondary Education Act of 1965.” Many of the categorical programs that were folded into the Chapter 2 block grants in 1981 were authorized under esea

Under the child-benefit theory, private schools themselves are not recipients of block-grant funds and thus are not necessarily bound by the range of civil-rights statutes beyond Title VI, according to department officials.

Civil-rights officials said that the essential relationship in the Chapter 2 program at the local level is between the local education agency, which administers the federally funded program, and the private-school students, who are the beneficiaries of the assistance.

Such an interpretation of federal aid to private-school students was upheld by the U.S. Supreme Court in 1968, in Board of Education v. Allen, in which school districts were permitted to “permanently” lend textbooks to private schools.

The situation was made more confusing by the U.S. Supreme Court decision in Grove City College v. Bell and pending Congressional legislation--which died in the final days of the 98th Congress but is expected to be reintroduced next year--that left uncertain the definition of a ''recipient” of federal aid, federal officials said.

And an Education Department official said that because of this uncertainty, the question of a private school’s civil-rights responsibilities remains largely “unanswerable.”

Authority Unclear

While an aide to Mr. O’Malley suggested that it would be the “obligation” of an lea to withhold Chapter 2 funds from a private school that discriminates, local school officials are not sure whether they are empowered to do so. “We feel that is not our authority,” said Mr. Church of the Memphis school system.

The aasa study suggests that other school districts have handled the question in the same manner as Boston, where “we have never asked [private schools] for any information about compliance” with the civil-rights laws, according to Martin H. Hunt, a special assistant to the superintendent who until recently supervised Chapter 2 programs.

Thomas C. Rosica, executive director of categorical programs for the Philadelphia Public Schools--which he said require that participating private schools sign assurances for all of the civil-rights statutes--criticized the Education Department for being “absolutely unwilling” to provide guidance in this and other areas relating to the administration of Chapter 2 programs.

Private Participation

Under the Chapter 2 law, school districts must inform private schools about the availability of the funds and provide equitable services to private-school students, officials said.

In its recent response to the aasa, the Education Department estimated that 13.5 percent of participating students attend private schools and asserted that some lea’s may not be providing for equal participation by private-school students; the aasa’s estimate was 15.6 percent.

With the increased participation of private-school students in the Chapter 2 program, the department was advised by the U.S. Commis-sion on Civil Rights in April 1982 to “provide local educational agencies with specific guidance as to their reponsibility for civil-rights compliance by such schools.”

Need Questioned

On the other hand, department officials and analysts point out that there may not be a pressing need for such regulations.

Neither federal officials nor observers interviewed last week could cite any litigation dealing specifically with these questions.

And Mr. Roman, the ocr official in Denver, said that he had not heard any complaints or concern from public- and private-school administrators.

The federal officials suggest that tax-exempt private schools must assure the Internal Revenue Service that they do not discriminate, so additional regulations would be redundant.

In addition, discriminatory schools “are not apt to come to the federal government looking for anything,” noted Regina Kyle, a consultant with E.H. White and Co., a Washington firm, who is coordinating a study sponsored by the Nation-al Institute of Education on local implementation of Chapter 2.

An analyst in the Education Department’s office of private education also said major loopholes in Section 504 and Title IX may render these statutes largely irrelevant to private schools.

For example, he noted, under a regulatory exemption to Section 504 a private school that does not have an adequate program for handicapped students need not admit them to the school.

Private School Reaction

Moreover, officials at both the U.S. Catholic Conference and the Council for American Private Education say that they advise their member schools to comply with the range of civil-rights statutes.

According to Richard E. Duffy, representative for federal assistance at the Catholic Conference, that group’s member schools are “in compliance with all of the civil-rights statutes.”

And Robert L. Smith, the executive director of cape, said that “there is no question that we should comply with the law of the land regarding” federal civil-rights laws.

A version of this article appeared in the November 07, 1984 edition of Education Week as E.D. Officials at Odds Over Rights Rules Under Chapter 2