Is the High Court Wrong on Entanglement?: The Problem Is Not Law but Method

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In both its recent decisions on public aid to students in church-affiliated schools, the U. S. Supreme Court ruled that public-school systems cannot offer remedial classes on parochial-school sites. In Aguilar v. Felton--the more important case because of its national scope--the Court struck down the way in which Title I services of the 1965 Elementary and Secondary Education Act (E.S.E.A) were provided to 25,000 parochial-school students in New York City.

Oddly, even supporters of the Court's wise and fair rulings in these cases seem to misunderstand what the decisions mean. Some observers have said the Court has discarded the "child-benefit" theory embodied in the E.S.E.A. Actually, though, the principle was not questioned. The Court correctly saw that the problem was not the law itself, but a particular method used to put it in place. What has been ruled out is simply one aspect of the law's implementation: public-school teachers in private-school settings.

Several years ago, Senator Daniel Patrick Moynihan asked, ''What do you do when the Supreme Court is wrong?" For the policymakers who must decide how the most recent decisions affect the delivery of remedial services to private school students, the question is reversed: What do you do when the Supreme Court is right? The answer is found in the E.S.E.A. itself. By re-examining the intent of the original legislation, we can devise permissible ways to give private-school students the E.S.E.A. benefits they deserve.

Nationally, Title I (renamed Chapter 1 in 1981) provides remedial instruction to approximately 4.7 million educationally disadvantaged students. Of these, 183,000 attend parochial schools. The original act says that eligible students include "educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools . . . . " Thus, it is quite clear that the program was designed to benefit all disadvantaged children, whether they attend public or private schools. This aspect of the E.S.E.A. is the child-benefit theory.

The legal basis for the E.S.E.A. and the child-benefit theory was, in large part, Everson v. Board of Education, the 1947 Supreme Court decision on New Jersey's practice of reimbursing parents, including those with children in private schools, for the cost of school-bus fares. That type of aid, the Court ruled, was constitutional--children benefited, not schools.

Writing for the majority in Grand Rapids v. Ball, Associate Justice William J. Brennan Jr. used the child-benefit theory to distinguish between the permissible aid provided in Everson and the impermissible aid provided in the two recent cases: " ... all aid to religious schools ultimately 'flows to' the students .... Where ... no meaningful distinction can be made between aid to the student and aid to the school, the concept of a loan to individuals is a transparent fiction."

To some opponents of state aid to private schools, Justice Brennan's remarks seem to have overruled the private-school provision of the E.S.E.A. and struck at the heart of the child-benefit theory. After the decision, a spokesman for the American Federation of Teachers erroneously claimed that ''Title I was set up to attend to children in need in public schools." Norman Redlich, dean of the New York University Law School, argued that the decisions "should put an end to the persistent efforts to provide direct subsidies to religious schools."

Many others argue--as does Richard A. Baer Jr.--that the Court is totally misguided. Senator Moynihan has contended for years that the Court is "simply wrong in repeatedly telling state legislatures that they may not, consistently with the First and Fourteenth Amendments, provide a variety of forms of aid to elementary and secondary schools that are operated by a church or religious body." He insists that public aid to parochial schools is similar to the issue of "separate-but-equal" facilities. On that issue, as we all know, the Court first held that such facilities were constitutional, then completely reversed itself in Brown v. Board of Education. Senator Moynihan believes the Court should reverse itself again on private- school aid.

Far from being an about-face, however, the recent rulings are consistent with 40 years of Court opinions on the separation of church and state and the legal limits of public aid to private-school students. In both decisions, the Court held that private-school students may receive federal and state services, but not on the private-school site. When public-school employees are hired to teach classes held in parochial schools, the Court wrote, "the instructors, influenced by the pervasively sectarian nature of the religious schools in which they work, may subtly, or overtly, indoctrinate the students in particular religious tenets at public expense . . . and therefore violate the dictates of the establishment clause of the First Amendment."

Because of its national scope, the practical ramifications of the Felton decision will affect policy makers at all levels. Each school district must decide how to administer its own Chapter 1 program in light of the decision. Each state department of education must have guidelines to ensure that eligible private-school students receive "equitable and comparable" E.S.E.A. benefits.

The U. S. Education Department must write regulations that adhere to the federal education laws. And the U. S. Congress must comply with the Supreme Court's rulings when it writes those laws. Does this mean that the E.S.B.A. must be rewritten? Will these latest opinions advance the cause of those who want educational vouchers and tuition tax credits? Could the Education Department simply ''bypass'' 16,000 school districts and provide these services through a contract with a third party?

The answer to all these questions is an unqualified "no." Educational vouchers and tuition tax credits, no matter how worthy and well conceived, have little chance of being adopted by the Congress. The ''bypass'' is no longer a workable option. The recent Wamble v. Bell decision (in U. S. District Court for the Western District of Missouri) struck down the federal government's "bypass" practice of providing direct services to private-school students on private-school premises. Nor is it necessary to write a new education law.

Again, all we need to do is look back at the original language of the E.S.E.A. With that act, the Congress tried to define how a program of social action would be applied to a specific minority--private-school students. The law's language reflects what was clear in 1965: that the Congress intended to include private-school students. Indeed, it would have been politically impossible to pass a law that did not include them. From 1945 to 1965, private-school educators (notably Catholics) were able to defeat in the Congress any general-aid bill that excluded their schools. In the years after the E.S.E.A.'S passage, the Congress repeatedly acted to ensure that private'-school students received E.S.E.A. services.

But two forces undermined the original intent of the law. First, no law, no matter how well written and executed, could quickly resolve the long-standing controversy surrounding the separation of church and state. The Congress hoped that including parochial-school students in the E.S.F..A. would lead to a compromise that would bring federal educational services to all children of poverty, regardless of the school they attended. At the same time, in the words of former U. S. Education Commissioner Francis Keppel, architect of the E.S.E.A., the Congress wanted to devise the law in a way that would "get the church-state question out of the nation's capital and into the states and localities." The Congress partially succeeded with both goals.

Second, at each stage of the E.S.E.A. amendment process, the private-school interest groups fought for and gained greater concessions in the "delivery of service" to their students. Ultimately, sending public school teachers to private schools became the accepted mechanism.

It is important to remember, however, that the original legislation never mentioned using public-school teachers in private- school classrooms. This practice simply evolved over the years. During the House of Representatives hearings in 1965, the delivery of services became a focal point of discussion. During those hearings, the following exchange took place between Representative Charles Goodell of New York and the superintendent of Chicago Catholic schools, Msgr. William McManus.

Monsignor McManus; I think that under the Constitution of the United States, it is legal for a public-school teacher under public control and supervision to render a service within a privately owned structure . . . .

Mr. Goodell; What I am trying to do is to think ahead as to where the proper bounds are .. . . How far do we go? . . . We have had some differences of opinion from witnesses here as to just how far we can go with this teaching by public- school teachers in private schools, including some who said [it] would be a lot safer constitutionally if you did not have them teach in the private schools at all.

Monsignor McManus: I would concede that would be safer, too, to be sure.

That is, both sides realized that putting public-school teachers in private schools could cause problems. In fact, Monsignor McManus emphasized at the time, "We are not making a plea ... for teachers to come into parochial schools .... We are making a plea that the children be served, with the decision as to whether the children go to the public schools or the teachers come to the parochial school left to the judgment of local officials . . . . "

The E.S.E.A. simply states that the public agency shall make "provisions for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment.)" (Emphasis added.)

These methods have been tried, too. In a "dual-enrollment" system, a private-school student takes a Chapter 1 class in the local public school. Private schools have usually been opposed to this method. If the class is held during the day, it is argued, then the student's schedule is disrupted. If the class is held after school hours or on the weekend, attendance is usually low. Still, this approach has supporters. Two years ago, Mr. Keppel said it was puzzling why dual enrollment had not been used more.

Mobile units have been used in many states to deliver Chapter 1 services. This method can be expensive, especially if the school district is large and the educationally disadvantaged students are few and far apart.

Another method mentioned in the original law--and not often used--is television. But new technologies, such as videocassette recorders, could prove useful. It would be fairly easy for a school district or an educational publisher to produce tapes for Chapter 1 classes, and such tapes could be used in a wide range of settings.

No one solution will work best for any district, of course. That is why the E.S.E.A.'S framers suggested a variety of permissible methods for serving private-school students.

So what should policymakers now do? The Congress need do nothing: the law is valid. The Education Department should simply eliminate guidelines that allow on-site private-school services. Of course, federal officials will be tempted to try to solve the implementation problems facing school districts, but that would be unnecessary, meddlesome, and counter to President Reagan's push for local control.

The burden appropriately falls on state and local officials. State policymakers must check and revise state laws so that they conform to the recent Court rulings. Locally, public- and private-school administrators must familiarize themselves with the options the E.S.E.A. provides, plan together for the benefit of the children, and compromise on implementation methods--whether dual enrollment, mobile units, television, or other media. Such cooperation, after all, was the intended spirit of the E.S.E.A.

Vol. 04, Issue 40-41, Pages 21, 28

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