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Felton Case’s Effect on Schools Studied

By James Crawford — May 30, 2017 5 min read

The percentage of private-school students receiving federal Chapter 1 remedial services dropped by nearly 40 percent in the year following the U.S. Supreme Court’s 1985 decision striking down the method used by most public-school systems for delivering such aid, a new survey has found.

The number of private-school students receiving Chapter 1 aid fell by almost 68,000 between the 1984-85 and 1985-86 school years, according to the survey, conducted by the National Association of State Boards of Education.

And in California, which administers the nation’s second-largest Chapter 1 program, 82 percent of the eligible private-school students went without Chapter 1 services last year, NASBE said.

The drop in the number of students receiving Chapter 1 aid is a result of the Court’s ruling in Aguilar v. Felton that public-school teachers cannot be sent to church-affiliated schools to teach remedial classes.

NASBE’s study attributed the dramatic decline to the reluctance of parochial school officials and parents to send students to public schools or neutral sites for remedial instruction. Those two methods were the most popular among districts trying to balance the Court’s order with Chapter l’s mandate that private-school students be served under the program, according to the survey of 50 state and the District of Columbia.

In the survey, 26 states reported serving fewer private-school students in 1985-86 than in 1984-85, including seven that saw a decline of more than 50 percent.

Positive ‘Attitude’

The study found that some states defied the trend through a positive “attitude” and cooperation with private schools.

Louisiana and Texas, for example, are now serving more students than before; New Mexico, Pennsylvania, and West Virginia are serving about the same number; and Nevada and Utah “anticipate reaching their “pre-Felton figures” this year, the study found.

Still, nationwide, 67,712 fewer students were served, the survey found, down from about 183,000 parochial- school students served the previous year.

“It is unrealistic to expect all states to serve the same percentage of eligible non-public-school children this year that were served before the Felton decision,” NASBE concluded.

With “innovative methods,” clearer guidelines from the Education Department, and “more tolerance” from parochial-school administrators and parents, the situation should improve, it said.

Coping With Felton

Fbrty-three state education departments said districts complied with the ruling by providing Chapter 1 aid to private-school students in public-school facilities. Neutral sites, both public and private, were used in 39 states; mobile classrooms in 35; computer-assisted instruction in 21; and home tutors in 4.

For private-school administrators, transporting students to public schools has been the least popular solution because it raises “questions of liability and safety, as well as loss of instructional time,” the NASBE I study found. Also, some parents want to keep their children out of public schools, it added.

In New York City, where the Felton case originated, only 41 of 194 religious-affiliated schools had accepted invitations to participate in public-school Chapter 1 programs by Aug. 28, according to an affidavit submitted by the board of education as part of the ongoing case in U.S. District Court in Brooklyn.

As a result, the board estimated, 9,900 private-school students-47 percent of those eligible for Chapter 1 in the city-may not receive compensatory education this year.

Trailer Controversy

Parochial schools most often prefer that districts administer Chapter 1 aid through the use of mobile or temporary classrooms, which can be parked on or near their premises, but this is seldom the districts’ first choice, according to Brenda L. Welburn, NASBE’S director of governmental affairs.

Early this summer, the U.S. Education Department endorsed the portable-classroom alternative when it updated its guidelines to school districts on means of complying with the Felton ruling.

Trailers, even if parked on religious- school grounds, may legally be used if they are “neither physically nor educationally identified with the functions of the non-public school,” the department’s legal opinion said.

Americans United for Separation of Church and State, an advocacy group, immediately challenged the interpretation in U.S. District Court in Kansas City. The department’s “bad advice . . . is encouraging the use of tax dollars to build annexes for parochial schools,” charged Robert L. Maddox, the group’s executive director. A ruling in the case, Pulido v. Bennett, is expected soon.

Because of this and other legal uncertainties, Ms. Welburn said, “states will be cautious about laying out money on new expenses.”

“They’d hate to put a plan in the hopper and have the Education Department say they’re out of compliance” with the Felton ruling, she said.

At the same time, Ms. Welburn added, “a lot of them are willing to try almost anything.”

“The states have had a good relationship with the private schools and they don’t want to see that deteriorate,” she said. “They are going to bend over backward to find ways to comply.”

Computerized Instruction

Computer-assisted instruction provided in the parochial schools as a surrogate for public-school teachers “appears to be gaining popularity for 1986-87,” with 21 states reporting some districts using such an approach, according to the survey.

While some Education Department guidelines are clear-the computer equipment must be used only for Chapter 1 instruction, for example- uncertainties about the legality and equity of the approach remain, causing “hesitance” among districts, the NASBE report said.

Neutral Sites

New York City, like several other districts, is grappling with the Felton decision for the first time this year because a U.S. district court stayed its effective date by one year. Aspects of its plan appear likely to be tested in court this fall.

The board of education plans to spend more than $7 million to rent, operate, garage, maintain, and insure 70 “mobile instructional units” to accommodate about 5,000 religious school students, representing 24 percent of those eligible, according to the board’s spokesman, Robert Terte.

Also, the board is considering a proposal to serve another 11 percent of the eligible students by renting 18 “neutral sites"-14 of which are owned by religious institutions and are usually adjacent to parochial schools. The arrangement would comply with the Felton ruling, Mr. ‘Terte said, because the sites “would not be used for any other purpose, such as being shared by a sectarian school, and any religious symbols would be covered or removed.”

But critics have disputed this logic, questioning the practical “separation” of any facility located on or adjacent to a religious group’s property.

A version of this article appeared in the September 10, 1986 edition of Education Week as Felton Case’s Effect on Schools Studied


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