A federal district court last week upheld the constitutionality of a controversial Education Department rule on the allocation of Chapter 1 remedial-education aid to pupils in church-affiliated schools.
U.S. District Court Judge William H. Orrick of San Francisco rejected arguments that the so-called “off the top” funding method violates the First Amendment’s ban on government establishment of religion by giving an unfair edge in funding to religious schools.
In doing so, he reached a conclusion different from those of two other district courts. Federal judges in Kentucky and Missouri have struck down the rule. (See Education Week, Jan. 10 and March 7, 1990.)
Like the other two jurists, however, Judge Orrick barred the use of vans located on religious-school premises to provide Chapter 1 classes. Such vans may be parked alongside school property, the three courts agreed.
Under the Education Department rule, states and school districts must skim “off the top” of their Chapter 1 allocations the amount needed for serving religious schools.
The rule was adopted after the Supreme Court’s 1985 decision in Aguilar v. Felton, in which the Justices prohibited the provision of federally mandated Chapter 1 services in religious-school classrooms.
The fund-allocation method is intended to allow for the administrative costs of providing services at alternative sites. Mobile vans are often used.
‘The True Benefit’
In Walker v. San Francisco Unified School District, Judge Orrick concluded that “taking the expenses of providing the mobile vans ‘off the top’ is fully constitutional.” The taxpayers who filed the suit “erroneously” regard the vans as a benefit, he said, and lose sight of “the true benefit, which is remedial-education services being provided to poor children who are in desperate need.”
The judge noted that in four instances in San Francisco, vans were located on parochial-school property because of safety or logistical con cerns. Such siting “does create an impermissible symbolic union between church and state [and] violates the Establishment Clause,” he wrote.
Use of the vans near school grounds “confers only an incidental benefit on the parochial schools and does not have the primary effect of aiding religion,” he determined.$
Mark E. Chopko, general counsel for the U.S. Catholic Conference, wel comed the ruling. “I think it’s about time somebody recognized Chapter 1 for what it is: a program desperately trying to serve poor children under very difficult circumstances,” he said.
“I feel pretty good about the deci sion,” added Ramon Cortines, San L Francisco’s superintendent of schools. The district will have to move the three remaining vans located on pa rochial-school property, but other wise “I think we were generally sus tained” by the court, he said.
Robert L. Maddox, executive direc tor of Americans United for Separation of Church and State, which as sisted the plaintiffs, said San Francisco’s plan “gives parochial schools an unfairly large share’’ of Chapter 1 funds.
But he expressed satisfaction that the court “reaffirmed the principle that tax dollars may not be used to provide instructional services on the premises of parochial schools.”
In addition to the school district, the suit named the Roman Catholic Archdiocese of San Francisco, the State of California, and the U.S. Education Department.
State and federal education officials had no immediate comment on the ruling.
