Judge Rejects E.D. Rule on Aid to Religious Schools

By Mark Walsh — March 07, 1990 2 min read
  • Save to favorites
  • Print

For the second time in recent months, a federal judge has struck down an Education Department regulation governing the allocation of federal Chapter 1 remedial-education aid to students in church-affiliated schools.

Acting in a case brought by Kentucky taxpayers, U.S. District Judge Charles M. Allen ruled Feb. 21 that the regulation forcing school districts to deduct the cost of aiding parochial school students from “off the top” of their entire Chapter 1 allocation violates the First Amendment’s ban on government establishment of religion.

The rule was adopted by the Education Department in response to the U.S. Supreme Court’s 1985 decision in Aguilar v. Felton, which barred public schools from sending their employees to church-affiliated schools to teach Chapter 1 classes.

On Dec. 21, U.S. District Judge Joseph E. Stevens Jr., acting in a case brought by Missouri taxpayers, also struck down the off-the-top allocation rule, which was intended to provide funding for alternative means of providing Chapter 1 services to private-school students. (See Education Week, Jan. 10, 1990.)

The Education Department has appealed the decision in the Missou4ri case to the U.S. Court of Appeals for the Eighth Circuit.

‘Egregious Violation’

Acting in Barnes v. Cavazos, in which the Education Department, state education officials, Jefferson County education officials, and the Roman Catholic Archdiocese of Louisville were defendants, Judge Allen found that by using the off-the-top method to lease mobile vans to provide remedial services at parochial schools, the amount of funds available for public-school students was reduced by more than $187,000.

“The off-the-top method directly benefits private-school students at the expense of public-school students,” the judge ruled.

“This is the second federal court that has agreed with us that this is an egregious violation of church-state separation,” said Joseph Conn, a spokesman for Americans United for Separation of Church and State, an advocacy group representing the plaintiffs in the Kentucky and Missouri cases, as well as those in a similar case pending in California.

Mobile Classrooms

In several other major aspects in the lawsuit, however, Judge Allen ruled for the defendants.

The use of mobile vans parked on public property near parochial8schools does not violate the Constitution’s establishment clause, the judge said.

The judge also held that public-school officials could legally provide on-site remedial instruction to students at several religiously affiliated institutions for abused and neglected children.

The facilities, which include a Baptist center for children with behavioral problems and a Catholic orphanage, are not “pervasively sectarian,” the judge ruled, even though some of the facilities require students to attend religious services.

In a statement released last week, the Education Department said it was pleased with the judge’s rulings on the issues of mobile vans and religious institutions for neglected children. It disagreed with the court’s ruling on the off-the-top allocation, and said that officials are considering whether to appeal it.

Department officials have argued that the off-the-top allocations are necessary to ensure that Chapter 1 services are provided equitably to public- and private-school students.

Critics such as Americans United, however, have charged that then-Secretary of Education William J. Bennett issued the rule to “circumvent” the Supreme Court’s decision in the Felton case.

A version of this article appeared in the March 07, 1990 edition of Education Week as Judge Rejects E.D. Rule on Aid to Religious Schools

Commenting has been disabled on effective Sept. 8. Please visit our FAQ section for more details. To get in touch with us visit our contact page, follow us on social media, or submit a Letter to the Editor.


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Teaching Webinar
6 Key Trends in Teaching and Learning
As we enter the third school year affected by the pandemic—and a return to the classroom for many—we come better prepared, but questions remain. How will the last year impact teaching and learning this school
Content provided by Instructure
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Equity & Diversity Webinar
Leadership for Racial Equity in Schools and Beyond
While the COVID-19 pandemic continues to reveal systemic racial disparities in educational opportunity, there are revelations to which we can and must respond. Through conscientious efforts, using an intentional focus on race, school leaders can
Content provided by Corwin
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Equity & Diversity Webinar
Evaluating Equity to Drive District-Wide Action this School Year
Educational leaders are charged with ensuring all students receive equitable access to a high-quality education. Yet equity is more than an action. It is a lens through which we continuously review instructional practices and student
Content provided by BetterLesson

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Education Schools Get the Brunt of Latest COVID Wave in South Carolina
In the past few weeks, South Carolina has set records for COVID-19 hospitalizations and new cases have approached peak levels of last winter.
4 min read
Two Camden Elementary School students in masks listen as South Carolina Gov. Henry McMaster talks about steps the school is taking to fight COVID-19, Wednesday, Sept. 15, 2021, in Camden, S.C. McMaster has adamantly and repeatedly come out against requiring masks in schools even as the average number of daily COVID-19 cases in the state has risen since early June. (AP Photo/Jeffrey Collins)
Education More States Are Requiring Schools to Teach Native American History and Culture
Advocates say their efforts have gained some momentum with the nation’s reckoning over racial injustice since the killing of George Floyd.
3 min read
A dancer participates in an intertribal dance at Schemitzun on the Mashantucket Pequot Reservation in Mashantucket, Conn., Saturday, Aug. 28, 2021. Connecticut and a handful of other states have recently decided to mandate students be taught about Native American culture and history. (AP Photo/Jessica Hill)
Education Judge's Temporary Order Allows Iowa Schools to Mandate Masks
A federal judge ordered the state to immediately halt enforcement of a law that prevents school boards from ordering masks to be worn.
4 min read
Iowa Gov. Kim Reynolds speaks to reporters following a news conference, Thursday, Aug. 19, 2021, in West Des Moines, Iowa. Reynolds lashed out at President Joe Biden Thursday after he ordered his education secretary to explore possible legal action against states that have blocked school mask mandates and other public health measures meant to protect students against COVID-19. Reynolds, a Republican, has signed a bill into law that prohibits school officials from requiring masks, raising concerns as delta variant virus cases climb across the state and schools resume classes soon. (AP Photo/Charlie Neibergall)
Education Hurricane Ida Deals New Blow to Louisiana Schools Struggling to Reopen
The opening of the school year offered teachers a chance to fully assess the pandemic's effects, only to have students forced out again.
8 min read
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021. Louisiana students, who were back in class after a year and a half of COVID-19 disruptions kept many of them at home, are now missing school again after Hurricane Ida. A quarter-million public school students statewide have no school to report to, though top educators are promising a return is, at most, weeks away, not months.
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021.
John Locher/AP