Chapter 1: Felton Continues to Pose Logistical Challenges; Opponents of Services Wage New Legal

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Each weekday morning, a mobile-classroom van contracted by the New York City Board of Education pulls up to the curb at Holy Spirit School in the Bronx.

At some point throughout the day, about 150 students out of the Roman Catholic elementary school's total enrollment of 293 troop into the van for their daily remedial instruction in mathematics, reading, or English as a second language.

The van costs the city school system approximately $106,000 a year to lease. On some days, because of ongoing street repair in the neighborhood, the classes are not held because it is too dangerous for the students to get to the mobile instructional units, or miu's, as the bureaucrats call them.

"That's an added headache," said Peter Shyshka, the longtime principal of Holy Spirit School. "On some days, Chapter 1 services have to be canceled. That is a real loss of services that the children need and should have been receiving."

The logistical problem is prompted by the fact that the remedial instruction cannot take place inside the religious school because, under a landmark 1985 Supreme Court ruling, such a close entanglement between the government and the church was found to be in violation of the Constitution's ban against government establishment of religion.

The mobile vans are only one of several methods developed by the New York City public schools to fulfill a mandate of the federal Chapter 1 program that local districts provide remedial services to private-school students, even those in religious schools, on an equitable basis with students in the public schools.

Like New York, districts throughout the nation are using mobile or portable classrooms, transporting private-school students to public schools or neutral sites, and providing computers to meet the requirement.

The mandate has been a part of the Chapter 1 law since its adoption more than 25 years ago.

But simmering church-state tensions in the years that followed came to a boil in 1985 in Aguilar v. Felton, a First Amendment case in which the Supreme Court ruled that public-school districts could not send their teachers into religiously affiliated schools to provide Chapter 1 services.

In handing down its 5-to-4 ruling, which grew out of a challenge to New York City's program, the Court threw the delivery of Chapter 1 services for most private-school children into disarray.

Now, nearly six years after that decision, public- and private-school educators continue to grapple with the logistical challenge of providing remedial services to students in religious schools.

Participation Is Down

Significantly fewer private-school children are currently receiving Chapter 1 services nationwide than during the 1984-85 school year. That year, 185,000 pupils in private schools participated in Chapter 1. In the year after the Felton decision, participation plummeted to 123,000, according to a 1989 report by the General Accounting Office.

In some districts, however, there has been a significant recovery; in others, pre-Felton levels have even been surpassed. By the 1988-89 school year, according to the most recent figures available, participation had recovered to an estimated 151,000 students nationwide, according to the gao

"Clearly, thousands of students are not being served yet," said Mary Jean LeTendre, director of compensatory-education programs for the U.S. Education Department. "But I'm not sure if we will ever see the numbers get back to where they were [before Felton]."

But no one appears to be completely satisfied with the alternatives.

"The Felton decision put both sides in a very untenable position," said Michael Casserly, legislative director of the Council of the Great City Schools, an association of some of the nation's largest urban school districts. "I don't think anyone is satisfied with it. People have just created different ways of living with it."

In the meantime, however, thorny legal battles have erupted across the country in recent years as advocates of strict separation of church and state have challenged many post-Felton methods of providing services.

Also at issue is a key policy by the Education Department stating that certain capital expenses involved in the delivery of services to private-school children must come out of a state or district's total Chapter 1 program budget, rather than just out of the portion for private-school students.

"I think there is no question that the issues we are currently addressing will wind up back in the Supreme Court," said Lee Boothby, general counsel for Americans United for Separation of Church and State, a Maryland-based advocacy group that has challenged Chapter 1 services to religious schools in several ongoing lawsuits.

Source of Friction

The question of government aid that directly or indirectly benefits private religious schools has been a traditional source of church-state friction in American society. Concerns about aid to sectarian schools were a major sticking point throughout attempts to pass the first major federal school-aid bills during President John F. Kennedy's Administration.

President Lyndon B. Johnson successfully got around the issue of aid to private schools by focusing his programs on remedial education for disadvantaged students, regardless of whether they were in public or private schools.

The 1965 bill containing Title I, which in 1981 was renamed Chapter 1, prompted many questions from religious denominations, public-education associations, and such advocacy groups as the American Civil Liberties Union that worried that the proposed indirect aid to private religious schools would undermine the nation's long history of church-state separation.

In the end, though, despite prolonged debate in the Congress over the church-state issues, the measure containing Title I, including eligibility for private-school pupils, passed.

In the Wake of Felton

By 1985, the Chapter 1 program was serving more than 185,000 nonpublic-school students, with public-school employees delivering an estimated 85 percent of the services at private-school sites.

But that year, in a case originally brought against the New York City Board of Education by the Committee for Public Education and Religious Liberty, or pearl, the Supreme Court ruled that the board's Chapter 1 program in private schools unconstitutionally required "a permanent and pervasive state presence in the sectarian schools receiving aid.''

The Felton ruling, which came during the summer of that year, left school officials scrambling to figure out how to implement their Chapter 1 programs for the approaching school year. (New York City sought, and received, a one-year postponement of the implementation of the decision.)

Then-Secretary of Education William J. Bennett was highly critical of the High Court's decision, saying it was "terrible" and "clearly reflected a hostility toward religion." But he ordered school districts to abide by it, and, in August 1985, the Education Department issued a set of questions and answers that sought to provide some guidance to school administrators on what was permissible.

One key decision made by the department at that time concerned funding for alternative methods of providing services to private-school children. The department said the costs of such alternatives would be deducted "off the top" of a district's entire Chapter 1 allocation so that services could be provided "on an equitable basis" to children in public and private schools.

That guidance, later codified in Chapter 1 regulations, has been challenged in at least four post-Felton lawsuits. The regulation has radically altered the funding balance for the Chapter 1 program, many public educators say, resulting in private-school students in some areas receiving as much as seven times more funding per pupil than public-school students.

Critics of Mr. Bennett also have charged that the funding rule was designed primarily to "circumvent" the Supreme Court's ruling in the Felton case.

Federal judges in two separate districts have overturned the department's "off the top" regulation within the past 16 months, saying it was a form of "direct aid" to private religious schools.

"The off-the-top method directly benefits private-school students at the expense of public-school students," U.S. District Judge Charles M. Allen of Kentucky ruled in February 1990 in Barnes v. Cavazos. U.S. District Judge Joseph E. Stevens Jr. of Missouri made a similar ruling in late 1989 in Pulido v. Cavazos.

The federal government has appealed both cases to their respective U.S. Courts of Appeals, which heard arguments last fall.

However, in a ruling last month, yet another U.S. District Court asked to consider the legality of the off-the-top funding rule upheld it as constitutional.

U.S. District Judge William H. Orrick of San Francisco said the taxpayers who filed the lawsuit "erroneously" focused on the cost of vans purchased to serve private-school children, while losing sight of the "true benefit, which is remedial-education services being provided to poor children who are in desperate need." ("Court Upholds Rule on Chapter 1 Aid to Religious Schools," April 10, 1991.)

A Problem of Definition

The fundamental disagreement on the off-the-top issue is how to define "equitable services" when, as a result of the Supreme Court mandate, it is more costly to provide the same level of Chapter 1 services to students in private religious schools than it is to public-school students.

"If Felton costs were paid only from the Chapter 1 funds which would otherwise be used to provide educational services to private-school children," the Justice Department argues in its brief appealing the Missouri ruling in the Pulido case, "there would be insufficient funds remaining to provide equitable instructional services to those children."

A coalition of education groups has filed a friend-of-the-court brief in the appeal of the Pulido ruling, supporting the decision against the off-the-top funding rule. Those groups are the Council of the Great City Schools, the National pta, the American Federation of Teachers, and the National Association of Secondary School Principals.

"The Education Department ruling was not based on any court case that the private-school children be funded 'off the top,' or out of the public-school share," said Mr. Casserly of the Council of the Great City Schools.

In a separate lawsuit filed last year, though not yet decided, the Chicago Board of Education also challenges the off-the-top funding mechanism because it provides private-school children with a disproportionately larger share of Chapter 1 funding.

In its complaint, filed in U.S. District Court in Chicago, the district argues that more than 1,000 eligible public-school students had to be eliminated from its Chapter 1 program when it was forced last school year to deduct the so-called Felton costs off the top of its Chapter 1 allocation. The district's Chapter 1 program served approximately 66,000 public-school students and 9,000 private-school students last year.

"I don't think Congress said, 'Take the money away from the public-school students and make them wait,"' said W. Frank Perry, director of the Chapter 1 program for the Chicago public schools.

But private-school educators take issue with the notion that the off-the-top rule robs public-school students of "their share" of Chapter 1 funding.

"The whole issue is the intent of Congress that eligible children are served no matter where they go to school," said Sister Lourdes Sheehan, secretary for education of the United States Catholic Conference. "To assume that the money is automatically the public schools' money is wrong. It's not our share or their share. It's the children's share."

Money for Capital Expenses

At the heart of the battle over funding is the expense of some of the alternatives for private schools, such as leasing neutral sites or mobile classrooms to provide Chapter 1 services to nonpublic-school pupils.

According to the gao report, 46 states that responded were expecting to spend a total of at least $105 million in 1989-90 on capital expenditures for Chapter 1 services to private-school students. The results did not include California and several other states whose private-school-student participation amounted to 19 percent of the total.

To help offset some of these costs, the Congress passed a law in 1988 authorizing funds for six years to pay school districts for certain capital expenditures incurred to deliver Chapter 1 services to students in private religious schools.

This past fall, the appropriation got a big boost, from about $25 million in fiscal year 1990 to more than $36 million in 1991. The total authorized in related legislation is $40 million per year.

"Certainly," Sister Lourdes of the uscc said, "the infusion of capital-expense money has helped."

Meeting the Mandate

But, educators say, the capital-expenditure question draws attention to a more fundamental debate about what are the best pedagogical, practical, and legal means of providing Chapter 1 services to students in private religious schools.

In the wake of the Felton decision, school districts are essentially using five means to provide the services to private-school pupils: transporting them to public-school sites, busing them to neutral sites, driving mobile vans to private-school sites, installing portable classrooms at or near the private schools, and providing computers in private schools that do not require the presence of public-school Chapter 1 teachers. An even newer variation on the latter method is a home computer that students can use to tap into a mainframe computer via telephone.

In the initial years after the Felton decision, many public-school officials attempted to develop plans to bus private-school students to public schools or to neutral sites for Chapter 1 instruction. But they were met with deep resistance from private-school educators, which led to the development of plans for mobile vans, portable classrooms, and computer-aided instruction.

Some districts saw private-school pupils' participation in Chapter 1 recover significantly after the Education Department ruled in June 1986 that portable classrooms could be placed on property leased from private schools. In Los Angeles, school officials leased 61 private-school sites and saw its private pupils' participation recover from a drop of 98 percent in the year after the Felton decision to only 21 percent below pre-Felton levels by 1989.

Because of varying needs within a district, many large school systems employ all the methods to some degree.

In most private schools with Chapter 1 students in Chicago, students go to rooms where a private contractor has installed computers that deliver the math and reading drills, Mr. Perry said.

Mobile classrooms have been installed at 31 private schools, a few send their students to three neutral sites, and some are provided with take-home computers.

Although the district is suing the Education Department over the off-the-top funding mechanism, it has maintained an excellent working relationship with private-school educators, both sides agree.

The computer-aided instruction is working well, said Joanne Planek, coordinator of federal programs for the Roman Catholic Archdiocese of Chicago.

"The children are so enthusiastic about it," she said, "they just sit down and start learning."

Americans United's Fight

Computer-aided instruction is one of the few aspects of the delivery of Chapter 1 services to students in religious private schools that have not been challenged in court.

Americans United has undertaken the broadest legal attack on what it views as unconstitutional methods of providing Chapter 1 services in or near religious schools.

The advocacy group has backed taxpayers who are the plaintiffs in four lawsuits around the country. In the Missouri, Kentucky, and California cases, in addition to their challenge of the off-the-top funding mechanism, the lawsuits also questioned the legality of parking mobile vans on or near the property of religious schools to provide Chapter 1 instruction.

A case in New Orleans challenging state aid to sectarian schools, also backed by Americans United, questions the constitutionality of the special federal capital-ex appropriation for Chapter 1.

According to Mr. Boothby, the general counsel for Americans United, the advocacy group has pressed these cases over the past five years because it perceived "that there was an attempt by the Department of Education to punish public schools and public-school students for the results of the Aguilar [v. Felton] decision."

Mr. Boothby also charged that, in the aftermath of the decision, there was coordinated pressure from Roman Catholic diocesan officials around the country and from the U.S. Catholic Conference to make sure that public-school districts continued Chapter 1 services at or near Catholic-school sites, such as in mobile vans and portable classrooms, instead of transporting students to public schools or neutral sites.

"What resulted was that they created a more expensive program, and they were still providing it exclusively to parochial-school children,'' Mr. Boothby said.

Catholic schools are by no means the only source of private-school children who participate in Chapter 1. Many disadvantaged students in Lutheran schools, other Christian schools, and Jewish day schools also qualify, and their officials actively seek to ensure their participation.

By contrast, some private religious schools shun participation, generally out of a desire to avoid entanglement with public-school authorities.

But Catholic-school officials are clearly the most visible in their lobbying for full participation in Chapter 1 for their eligible students. And Catholic educational leaders strongly disagree with the advocates of strict church-state separation about the legality of the Chapter 1 programs.

"I think Americans United is fighting phantoms on this issue," said Mark Chopko, general counsel of the U.S. Catholic Conference. "The Felton case destroyed rightful equity in the [Chapter 1] program. These alternative delivery systems are not equitable. These children are worse off with the disruption in their classrooms."

'Experiencing Success'

Meanwhile, in New York City, where the Felton case originated, the public-school system is facing a new challenge from pearl over its alternative methods of providing Chapter 1 services.

The New York City school system primarily relies on computer-aided instruction and mobile vans to serve the roughly 20,000 nonpublic-school participants inChapter 1, who come from a mixture of religious schools as diverse as the city itself.

Stanley Geller, a New York lawyer who argued the Felton case before the Supreme Court, said the alternatives "are no good."

"They all continue to very closely resemble what was struck down in Felton," he said. "A mobile unit that drives up to the front door is nothing but an outside classroom, an annex of the parochial school. It's a flimsy evasion of Felton."

But pearl's lawsuit has been bogged down in U.S. District Court in Brooklyn, and the school system has filed a motion claiming the issues will more likely be decided elsewhere first, Mr. Geller said.

Pearl recently released a report asserting that the board of education is spending $15 million to $20 million annually to "accommodate religious-school interests" by providing most Chapter 1 services to such schools with mobile units or computer-aided instruction.

Pearl said its research indicates that 82 percent of religious schools in New York City are within three to six blocks of a public school where Chapter 1 services can be obtained.

Mr. Boothby of Americans United said he believes the Education Department would like to see one or more of the current lawsuits reach the Supreme Court in the belief that the Justices, with a more conservative makeup, might rule differently than the slim majority in Felton.

But Mr. Boothby said he believes that the court would refuse to allow public-school teachers back into the classrooms of private religious schools.

"With the factual record we have in these cases," he said, "we have an even more compelling case for the Court to find as it did in Felton."

Often lost amid all the logistical challenges and court battles over the program, say private school educators, is the success of, and the continuing need for, the remedial help for thousands of pupils in nonpublic schools.

"I keep track of students who have been in the program for a period of three years," said Mr. Shyshka, the principal of Holy Spirit School in the Bronx. "Over three years, the kids improve more than four years on average in their reading and math scores."

"This is a supplement to regular classroom instruction where students are able to experience success at their own pace," he added. "If they didn't need it, they wouldn't be in there."

Vol. 10, Issue 35

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