Rule Governing Chapter 1 Funds Is Struck Down

By Mark Walsh — January 10, 1990 5 min read

In a decision with national implications, a federal district judge has struck down a U.S. 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 Missouri taxpayers, U.S. District Judge Joseph E. Stevens Jr. ruled on Dec. 21 that the federal rule forcing states and school districts to deduct the cost of aiding parochial-school students “off the top” of their entire Chapter 1 allocations violates the First Amendment’s ban on government establishment of religion. The plaintiffs charged that under the funding scheme, private-school students in some communities received seven times as much aid as those in public schools.

The Education Department adopted the rule 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.

The regulation, issued during the tenure of former Secretary of Education William J. Bennett, was intended to make funding available for alternative-and relatively more expensive-means of providing services to private-school students, such as in mobile classrooms.

In his ruling in Pulido v. Cavazos, Judge Stevens held that remedial services could not be provided in vans parked on church property, but that they could be provided in vans parked on public property adjacent to churches.

Americans United for Separation of Church and State, an advocacy group that represented the Missouri taxpayers, predicted, however, that the use of such vans will be severely curtailed now that they cannot be bought with funds taken “off the top” of a state or district’s Chapter 1 allotment.

“The court has said that government officials may not rob public schools in order to subsidize parochial schools,” said Robert L. Maddox, the executive director of Americans United. ''This is an important step in rolling back the disastrous Bennett policy of undermining church-state separation in order to favor religious schools.”

In a written statement, the Education Department disagreed with the Judge’s conclusions, and said it is considering whether to appeal his ruling.

The department also noted that its regulations and guidelines “on these issues remain in effect for Chapter 1 programs in all local education agencies that are not the subject of the Pulido litigation, despite the ruling of this district court in this particular case.”

Services Mandated

The Congress has always mandated that Chapter 1 services be made available to disadvantaged schoolchildren in both nonpublic and public schools.

But since the High Court’s Felton ruling, school officials nationwide have struggled to find workable and legally acceptable alternatives to providing instruction to students in religious schools. Alternatives have included leasing space from religious schools, parking vans on or near church-school property, delivering Instruction via computer, and requiring parochial-school students to travel to public schools to receive the services. (See Education Week, Oct. 26, 1988.)

Education Department officials have argued that the “off-the-top” allocation rule was necessary to ensure that Chapter 1 services were provided equitably to public- and private-school students. But Americans United and other critics have charged that then-Secretary Bennett issued the rule to “circumvent” the Supreme Court decision.

Aiding Parochial Schools

In the Missouri case, Judge Stevens ruled that the Education Department’s purpose in formulating the “off-the-top” allocation mandate was “directly to aid parochial schools in providing remedial education services in compliance with Felton.”

“This aid confers the type of direct benefit to the private schools that the Supreme Court has found to be impermissible because it provides a subsidy to the primary religious mission of the institutions affected,” he held.

Judge Stevens ruled against the plaintiffs over the costs of Missouri’s “bypass” arrangement, in which an Education Department contractor--rather than the state or local school districts-provides remedial instruction to nonpublic-school pupils. The judge said the net effect of public-school students absorbing the costs of this arrangement was minimal.

Mobile Classrooms

Judge Stevens also ruled that Chapter 1 mobile classrooms situated on religious school or church property “will most likely be seen as some form of annex to the mission of the church,” an identification that “creates an impermissible link between the church and the state.”

Judge Stevens found it acceptable, however, to place the mobile vans on public streets or other property just outside the campus of the religious school. “These services must be provided somewhere and this court finds that providing those services off the premises of the private school serves as enough of a separation to satisfy the first amendment,” he wrote.

Lee Boothby, a lawyer for Americans United, said Judge Stevens’s decision would make the use of mobile vans or portable classrooms impractical for providing remedial instruction at private religious schools. This would force the schools to accept cheaper alternatives, such as sending students to public schools for Chapter 1 services.

“The parochial schools haven’t worried about how [high] the costs are,” he said.

Phil Harris, a lawyer for the U.S. Catholic Conference, expressed disappointment with the ruling because ''it will severely restrict and, in some cases, deny remedial education to very severely disadvantaged kids.”

“Americans United talks about this as though it were a program to aid parochial schools, but it’s not,” Mr. Harris added. “It is a program to aid disadvantaged schoolchildren. There are no funds going to the schools. It’s the students who are getting hurt.”

Americans United is representing plaintiffs in four similar cases that challenge the department’s regulations as well as some of the alternatives developed for delivering the services.

Another group, the Committee for Public Education and Religious Liberty, has challenged the New York City school district’s response to the Felton decision, which has included the leasing of property on the playgrounds of Catholic schools to build permanent classroom trailers for Chapter 1 instruction.

A version of this article appeared in the January 10, 1990 edition of Education Week as Rule Governing Chapter 1 Funds Is Struck Down