N.Y.C. Seeks To Overturn Limits On Title I at Religious Schools

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The New York City school district is spending about $16 million this academic year on mobile vans, building rentals, and computers for religious-school students who are eligible for federally financed remedial education.

The money is being spent on infrastructure rather than instruction--on top of the cost of actual Title I services for nonpublic school students--because of a 1985 U.S. Supreme Court ruling that barred New York and other districts from sending teachers into religious schools.

New York City officials argue that these alternatives are expensive and inefficient. The fiercest critics of the district's Title I program, led by an advocacy group that champions church-state separation, agree with that assessment.

But the two sides part company over what to do about it. The critics say New York could find less costly ways to provide services to religious-school students, primarily by transporting them to public schools.

The district has another idea: It is trying to get the troublesome Supreme Court ruling in Aguilar v. Felton overturned.

New York has some important allies. U.S. Secretary of Education Richard W. Riley threw his support behind the effort in October. Because of the expense and ineffectiveness of the service-delivery methods used by many districts, he said, the ruling should be reconsidered "in an appropriate case." (See Education Week, Nov. 1, 1995.)

More importantly, five members of the current Supreme Court have questioned the legitimacy of the 1985 ruling.

"It is almost certain that [Felton] will be overturned in the future," New York City argues in papers filed in U.S. District Court in Manhattan. "Unfortunately, during the interim period, millions of dollars in Chapter 1 funds will be spent on noninstructional compliance costs which are of no pedagogical value to New York City youngsters."

The outcome of the district's legal efforts will have an impact not just in New York, but also on public and religious schools across the nation.

"My sense is people would be very happy if teachers could go back into [religious school] buildings again," said Sister Patricia Supple, the coordinator of government programs for the Roman Catholic Archdiocese of Los Angeles. "It is very costly the way it is now."

Monsignor Thomas McDade, the secretary for education at the U.S. Catholic Conference in Washington, agreed that most Catholic educators would welcome a reversal of the Felton decision.

"There is no substitute for one-on-one interaction with a teacher for children who are economically and socially disadvantaged," he said.

But Jack Baptista, the Title I director for the Boston school district, is not sure that educators would want a change.

"If we could go back in time, of course we would be in favor of not having the Felton decision," Mr. Baptista said.

"But the private schools have adjusted," he said. "Given the choice, I am not even sure whether they would like to have [public school] teachers come back to deliver services" at religious schools.

According to the U.S. Department of Education, only about 3 percent of the 6 million Title I students nationwide attend nonpublic schools. Most of them are in religious schools and live in school districts with enrollments of 25,000 or more, according to a 1993 study.

The new Title I law changed eligibility rules, and private school students must meet income as well as achievement criteria starting this year. (See Education Week, July 12, 1995.) Some educators predicted that fewer private school students would qualify, but observers say it is too early to assess the new rules' impact.

In New York City, 22,000 of the 259,000 students now participating in Title I attend private schools, and 99 percent of them are in religious schools, said Margaret O. Weiss, the director of the district's bureau of nonpublic schools. Of those, 86 percent attend Roman Catholic schools, and 8 percent Jewish day schools.

A Long Battle

Private school students have been eligible for Title I ever since the program was enacted in 1965, thanks to a compromise that secured the support of religious groups for the biggest federal initiative in K-12 education. Those children were most often served by visiting public school teachers.

But in 1978, the Committee for Public Education and Religious Liberty, an advocacy group known as PEARL, challenged New York City's Title I program, laying the groundwork for the 5-4 Felton ruling. The Supreme Court agreed that the presence of public school teachers in religious schools violated the U.S. Constitution's prohibition of a government establishment of religion by creating "excessive entanglement" between public and religious schools.

The 1985 ruling threw Title I (then known as Chapter 1) services for religious-school students into chaos. Their participation dropped from 184,000 in the year before the ruling to 127,000 in the 1985-86 school year. Many religious-school leaders fought proposals to send eligible pupils to public schools for Title I instruction. This led to the adoption of the more costly alternatives now widely in use, such as mobile classrooms and the leasing of "neutral sites."

A growing number of school districts serve religious-school students by means of computers that are adjusted so they can only run Title I software, ensuring that they cannot be used for other purposes.

A 1993 Education Department report found that by the early 1990's, religious-student participation in Title I had recovered significantly, although it remained below pre-Felton levels.

Americans United for Separation of Church and State, a Washington-based advocacy group, backed several lawsuits that challenged these new alternatives, but federal judges generally upheld the policies.

The suits also challenged a federal rule requiring public school districts to deduct noninstructional Felton-related expenses "off the top" of their entire Title I allocations, rather than from the amount earmarked for private school students. Critics argued that this rule resulted in vastly greater per-pupil Title I spending on students in religious schools.

But four federal appeals courts have upheld the policy on the theory that it is necessary to comply with both the First Amendment and the Title I law's requirement that public and private schoolchildren get "equitable" services.

In New York City, the status quo is under attack on two sides.

PEARL has challenged anew the off-the-top funding policy as well as some methods the district uses to provide services to nonpublic students. The group contends that the district is providing a first-class level of service to those children while public school students get an inferior Title I program.

While Title I teachers entered religious schools before the Felton ruling, the group argues in court papers, now "the same teacher arrives at the door of a religious school in a bus handsomely fitted out as a classroom, together with a publicly paid driver, at a cost of over $106,000 per year."

"Our argument is that there is no need to purchase these deluxe services when you could have served children in the public schools," said Lisa H. Thurau, the executive director of PEARL.

Meanwhile, New York officials filed a motion last fall seeking relief from the Supreme Court ruling. In a frank admission, the district acknowledged the excessive costs and educational ineffectiveness of its methods.

For example, 126 mobile units cost more than $13 million last year. Providing services in vans or at neutral sites forces students to waste time in transit and sometimes to walk through dangerous areas, the district argued. The 9,000 religious-school students who get computer-based services have shown less progress than Title I students who get face-to-face instruction, the district said.

The district says it spent more than $93 million on Felton-related costs between 1987 and 1994. While special state and federal funding has helped, the district says it will have to rely more on its basic Title I allocation in the future. The district's total Title I budget this year is $389 million.

New Referees

The city school board decided to pursue a reversal of Felton after a majority of Supreme Court justices questioned it in a 1994 case, Board of Education of Kiryas Joel Village School District v. Grumet. (See Education Week, July 13, 1994.)

In a 6-3 ruling, the court held that a separate school district created to provide special-education services to children from a Hasidic Jewish village was an unconstitutional establishment of religion. In concurring and dissenting opinions, five members of the court expressed interest in reconsidering Felton. (See box, this page.)

New York City is asking a federal judge to grant it relief from the Felton ruling on the basis that its authority as a precedent has been undermined by the opinions expressed in Kiryas Joel.

"Our position is that the law has changed," said Marilyn Richter, an assistant corporation counsel.

But she acknowledged that the federal district judge would be going out on a legal limb if he sided with the city.

"Whether or not the district court has the power do anything at this juncture is not clear," she said. "We think there is an argument that it could. If not, we would proceed to the appellate level."

Despite Secretary Riley's support for reversing Felton, the U.S. Department of Justice has taken the legal stance that the judge cannot free New York City from its constraints.

"Only the Supreme Court itself can grant relief," the department says in a brief. It adds, however, that the agency might later argue that the justices themselves could use the case to reverse Felton.

The district's motion has infuriated PEARL.

"It's a replay with a different set of referees--that's what they're counting on," said Stanley Geller, PEARL's lawyer.

The group contends that school officials have bowed to the considerable political influence of the city's Catholics and Jews.

"The school board would like to get rid of this headache," said Ms. Thurau. "But they should [offer Title I services] on the public schools' terms."

Vol. 15, Issue 23

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