Reversal of Ban on Title I Services in Religious Schools Asked

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The Clinton administration last week asked the U.S. Supreme Court to reverse its 1985 decision that bars public school teachers from providing Title I remedial education services in religious schools.

The administration joined sides with the New York City public schools and a group of Roman Catholic parents in an unusual legal strategy designed to give the high court a chance to reconsider its ruling in Aguilar v. Felton. The 5-4 decision, which was based on a challenge to New York City's Title I program, held that it was an unconstitutional government establishment of religion for public school teachers to provide remedial classes in religious schools.

The Department of Justice brief, filed on behalf of Secretary of Education Richard W. Riley, echoes a statement the secretary made a year ago that the Felton decision has required districts to use costlier and less effective means for providing remedial education to eligible children in religious schools. ("Riley Backs Reversing Title I Felton Ruling," Nov. 1, 1995.)

"Hundreds of millions of dollars of Title I funds, which otherwise could have been used for instructional services, have been spent on administrative costs made necessary only because of the need to comply with [Felton]," Solicitor General Walter Dellinger says in the brief. The brief also reminds the high court that five of its members have, in recent years, called for the reversal or reconsideration of Felton.

Appeal in Motion

The new appeal in the case of Agostini v. Felton (Case No. 96-552) came about because the New York City school board filed a motion last year asking a federal judge for relief from the 1985 Felton ruling. ("N.Y.C. Seeks To Overturn Limits On Title I at Religious Schools," Feb. 28, 1996.)

The district's use of mobile classrooms, leased sites, and computer-aided instruction for eligible religious school students has been attacked in a separate action by the same advocacy group that originally challenged the placement of Title I teachers in religious schools.

The National Committee for Public Education and Religious Liberty, or PEARL, argues that it would be more efficient for the district to send eligible private school students to Title I sites in public schools. The district spends about $14 million a year on mobile classrooms for Title I.

Private school students have been eligible for Title I services since the program started in 1965. But in 1978, PEARL challenged New York City's Title I program, saying that the presence of public school teachers in private religious schools was unconstitutional.

In addition, religious school leaders have long resisted the idea of sending their pupils to public schools for Title I services.

Last month, U.S. District Judge John Gleeson upheld the district's use of mobile-classroom vans and other means of serving religious school students.

On the district's motion for relief from Felton, Judge Gleeson ruled in May that he could not overturn the Supreme Court decision on his own. But his order denying the board's request for relief gave New York officials a legal vehicle to begin the appeals process.

In late August, the U.S. Court of Appeals for the 2nd Circuit expeditiously handled the board's appeal. A three-judge panel of the court upheld the district judge's ruling in a short opinion that essentially agreed that lower federal courts could not overturn Felton but that New York City's case should go to the Supreme Court.

On Oct. 7, the district filed its appeal with the Supreme Court, as did a group of Catholic parents who have intervened in the case.

The administration filed its brief Oct. 29, one week before the presidential election. PEARL has charged that the administration had embraced the idea of reversing Felton as a way to woo Catholic voters.

Reversing a Precedent

Regardless of its motivations, the administration raised one important issue in its brief that was ignored by the school district: whether it is appropriate for the high court to use the same case to reverse an important precedent.

The Justice Department said that, usually, it would be inappropriate for the Supreme Court to use the same case to relitigate an issue. But the court can take into account intervening decisions that may have changed the legal landscape. Furthermore, there are no other cases on the horizon that would likely give the high court the chance to re-examine Felton in the near future, the brief argues.

Stanley Geller, the PEARL lawyer who originally argued the Felton case and who still represents the group, said it would be wrong for the Supreme Court to use the New York case to reconsider its earlier decision because that would amount to a second appeal for the school district.

Mr. Geller was preparing PEARL's legal response, which has not yet been filed with the high court. If the high court decides to take the case, it could still schedule it to be argued in the current term.

Vol. 16, Issue 10

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