Secretary of Education Richard W. Riley declared last week that he would support reversal of a 1985 U.S. Supreme Court ruling that barred public school teachers from delivering remedial-education services on the premises of religious schools.
In a written statement released at a congressional hearing, Mr. Riley noted that the high court’s decision in Aguilar v. Felton “has caused continuing problems in the Title I program for both public and private school children who need extra help.”
“I therefore support reconsideration of the Felton decision in an appropriate case,” Mr. Riley said.
When Title I was first enacted in 1965, its sponsors evaded political and constitutional questions about aid to religious schools--and picked up additional support--by mandating that public school districts provide services to eligible private school students.
Since the Felton ruling, districts have had to come up with costly and often ineffective ways to serve those students, such as computer-assisted instruction, holding classes in mobile vans, or transporting students to neutral sites.
Furthermore, federal regulations require that these logistical costs be deducted “off the top” of each district’s entire Title I allocation, Mr. Riley noted, “which reduces the amount of Title I funds available for public school children, as well as private school children.”
“I believe we must make more effective use of Title I dollars to support our neediest students in both public and private schools,” Mr. Riley said.
Currying Favor?
Lisa H. Thurau, the executive director of the Committee for Public Education and Religious Liberty, a New York City-based group that has sued the Department of Education and the New York City district over their responses to the Felton decision, contended that Mr. Riley’s statement was part of an effort to gain political favor.
“It strikes me as part of a general theme on the part of the Clinton administration to mollify conservative [groups] that want to have more religion in public schools and more public aid to religious schools,” she said.
“It’s disappointing to see Secretary Riley buying into the Bill Bennett approach on church-state law,” said Joseph L. Conn, a spokes-man for Americans United for Separation of Church and State.
The Washington-based group filed several lawsuits in the 1980’s challenging the way William J. Bennett, then the secretary of education in the Reagan administration, interpreted the Felton ruling, particularly the “off the top” rule.
Several federal courts have upheld that rule. With some variations, federal courts have also approved the use of vans or mobile classrooms. But advocates of strict church-state separation remain critical of some popular means of delivering Title I services.
“Bennett turned to the most expensive and inefficient means of delivering services to parochial-school students,” Mr. Conn said. “There are other ways this could have been dealt with that were much more common-sense.”
Some school districts initially sought to bus eligible religious-school students to public schools for Title I services, but many Catholic schools and other private school leaders opposed that idea.
Logistical Costs
There are inherent tensions in the Title I program--the flagship federal effort to provide educational services to disadvantaged students--over resources for public school and private school students, as evidenced by a recent controversy over the interpretation of new eligibility rules. (See Education Week, July 12, 1995.)
However, in most communities serving large numbers of Title I students, educators from both sectors have long agreed that the Felton ruling has led to logistical nightmares, and most of them would likely welcome its reversal.
For example, Mr. Riley said that the New York City district has budgeted $16 million in the 1995-96 school year for noninstructional costs of complying with Felton, and estimated that 5,600 more children in the city’s public or private schools could receive services if that expense were eliminated.
“The [Felton] decision took a great program that was sitting in the nonpublic schools ... and added all these impediments. It’s a logistical headache,” said Burt Sacks, the New York City school system’s chief executive for community school district affairs, outreach and monitoring.
The city’s school board voted last spring to pursue a reversal of the decision. “If the secretary is behind us I think that’s great,” Mr. Sacks said.
In ruling on a 1994 case, the justices indicated that a majority of the current Supreme Court might go along.
In its 6-3 ruling in Board of Education of Kiryas Joel Village School District v. Grumet, the court held that a separate school district that had been created to provide special-education services to children from a Hasidic Jewish village in New York State was an unconstitutional establishment of religion. (See Education Week, July 13, 1994.)
Reconsidering the Ruling
But in concurring and dissenting opinions, five justices expressed interest in reconsidering Felton, which had held that the New York City school district’s practice of sending Title I instructors into religious schools resulted in a “pervasive state presence” in a religious institution that violated the U.S. Constitution’s prohibition against any government establishment of religion.
The earlier decision disfavored religion and “led New York to favor it here,” Justice Sandra Day O’Connor wrote. “The court should, in a proper case, be prepared to reconsider Aguilar [v. Felton].”
Secretary Riley’s statement was released at a Sept. 25 Senate Judiciary Committee hearing on religious liberty. Assistant Attorney General Walter E. Dellinger, who testified for the Clinton administration, said he had discussed the Felton case with Mr. Riley because he anticipated a question about it.
The statement argued that “Title I services can be provided in private schools without aiding religion or creating excessive entanglement between government and religion.”
