A federal appeals court has upheld the U.S. Education Department’s rule on the allocation of Chapter 1 compensatory-education aid to students in religious schools, the second ruling of its kind at the appellate level.
The unanimous decision by a three judge panel of the U.S. Court of Appeals for the Sixth Circuit was another blow for Americans United for Separation of Church and State, an advocacy group that has filed lawsuits nationwide challenging Chapter 1 aid to pupils in religious schools.
The Maryland-based group has challenged the Education Department’s rule on the allocation of the funds for religious-school pupils, as well as some of the methods used to provide those services. The group contends that the funding mechanism and certain methods of delivering Chapter 1 services, such as placing mobile vans near the property of church-affiliated schools, violate the First Amendment’s prohibition on government establishment of religion.
The latest ruling comes in a case in which a group of Kentucky taxpayers, backed by Americans United, challenged the delivery of Chapter 1 services to pupils in Louisville area Roman Catholic schools.
A federal district judge had ruled in 1990 against the Education Department’s so-called “off the top” funding rule, which requires public school authorities to deduct certain extra expenses of delivering services to religious-school pupils off the top of their entire federal Chapter 1 allocation. (See Education Week, March 7, 1990.)
The 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 Chapter 1 teachers to church-school classrooms to teach eligible students. The extra expenses arose from the costs of leasing vans and mobile classrooms to deliver Chapter 1 services after the ruling.
The district court judge said the off-the-top rule resulted in a reduction of funds for Chapter 1 pupils in Jefferson County, Ky., public schools of more than $187,000, which he found to be a violation of the Establishment Clause.
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‘Marginal Disparity’
The appellate panel on June 5 overruled the judge, saying he was too rigid in applying a legal test to the amount of funds taken off the top of Jefferson County’s allocation.
The panel noted that the off-the-top allocation to lease vans to serve religious- school pupils was only 2.7 percent of Jefferson County’s total 1989 Chapter 1 budget of $7.2 million.
“In other words, public-school students were deprived of 2.7 percent of the total amount of Chapter 1 funds which they would otherwise have received were it not for the funding of the van program,” the appellate court said. “In our view this marginal disparity in expenditures was mandated by the requirement that ‘comparable services’ are made available to both public and parochial students.
The appellate panel refused to consider the Kentucky taxpayers’ cross-appeal of the district judge’s ruling upholding the use of mobile vans parked near church-school property for Chapter 1 services. The panel said the appeal was filed one week late.
