Case Limiting Title I Gets New Day in Court

By Mark Walsh — April 09, 1997 9 min read

Allentown, Pa.

Each weekday morning, teacher Susan Ritter drives an Allentown school district van up to the front curb of Sacred Heart Catholic School here.

She parks the vehicle, plugs in a hefty power cable from the school building, then shivers while the cramped van warms up and she welcomes Catholic school students who need extra help learning English as a second language. The classes are provided under Title I, the federal K-12 remedial education program.

“I don’t think we are in the safest location,” Ms. Ritter says about the busy street in front of Sacred Heart. But the building, one of the oldest parochial schools in the Roman Catholic Diocese of Allentown, does not have any other suitable place to park the mobile classroom.

“Sometimes trucks go by, and they seem very close,” Ms. Ritter says. “There are also times when I see questionable individuals outside. I keep the door locked.

“I would prefer to be inside the school building,” she adds. “I would get more instructional time with the children.”

Going Mobile

Under a 1985 ruling by the U.S. Supreme Court, Ms. Ritter and other public school teachers nationwide are forbidden to provide Title I services inside religious schools. The court will hear arguments next week on whether to overturn that 5-4 decision.

Congress has mandated since the inception of Title I of the Elementary and Secondary Education Act in 1965 that disadvantaged students in private schools, whether religious or secular, be eligible for the program’s remedial services.

But the Supreme Court declared in Aguilar v. Felton that sending public school teachers into religious schools resulted in too much entanglement between government and religion and thus violated the U.S. Constitution’s ban on any government establishment of religion.

The decision meant that districts had to come up with alternatives to sending their teachers into religious schools. The most widely used methods are mobile classroom vans or trailers parked near religious schools, classes at neutral sites or in public schools, and special remedial computer programs that children can work on at home or in their religious schools.

Five current justices are on record as calling for the reversal or reconsideration of the 1985 ruling. As Justice Antonin Scalia put it in an unrelated 1994 opinion, the Felton decision was “hostile to our national tradition of accommodation.”

In the new appeal, Agostini v. Felton (Case No. 96-552), the New York City school district, joined by the Clinton administration and parents of Catholic school students, argues that the ruling 12 years ago has resulted in the expenditure of hundreds of millions of dollars on less effective alternative means of providing Title I services to children in religious schools.

Aguilar has led to considerable cost to education and the public fisc but has yielded little constitutional benefit, in the sense of preventing any real entanglement between governmental and religious institutions,” says a brief filed on behalf of U.S. Secretary of Education Richard W. Riley.

Advocates of strict church-state separation are vigorously fighting the effort to have the Felton decision overturned. They argue that the New York City district is seeking a replay of the issue decided in 1985 before a new, more sympathetic set of justices.

And they contend that much of the cost and logistical difficulties related to Title I alternatives such as mobile classrooms could have been avoided if public school authorities had insisted that eligible religious school children travel to public schools to receive services.

Allen H. Zelon, a member of the Committee for Public Education and Religious Liberty, a New York City group known as pearl, said public school officials there have let Catholic and Jewish school leaders dictate the use of expensive mobile classrooms as the primary alternative under the Felton ruling.

“The board of education has always been unduly solicitous to the parochial schools,” said Mr. Zelon, a former community school board member. He was one of the original plaintiffs in the 1978 lawsuit organized by PEARL to challenge the presence of public Title I teachers in religious schools.

Public school officials in New York City and here in Allentown respond that unless there is a public school nearby, it is undesirable to transport Title I students from religious schools to public school buildings.

Off-the-Top Funding

If the New York City district succeeds in getting the Felton decision overturned, the effects will be felt across the nation, including in the 15,000-student Allentown district.

In Allentown, an industrial city of about 105,000 people, roughly 4,300 students are served in Title I overall. About 340 of those come from the city’s five Catholic elementary schools. Officials of the Allentown district and the Catholic diocese say that in the 12 years since the decision, they have worked cooperatively to continue services for eligible religious school children.

But early on, both sides agreed that sending those children to public schools would not work in most cases.

“I was very much opposed to transporting students to public schools because of the loss of time involved,” said John R. Clark, the assistant superintendent for government programs in the Allentown Diocese. “It would be kind of ludicrous.”

The diocese extends well beyond the boundaries of Allentown itself, and Mr. Clark deals with as many as 60 school districts in five counties in eastern Pennsylvania. Unlike in New York City and in a handful of other districts across the country, no individuals or groups here have challenged the alternative methods of providing Title I instruction to parochial school students.

Ralph S. Todd, the director of instructional-support services for the Allentown district, said a reversal of the Felton decision likely would free more funding for the district’s overall Title I allocation.

He noted that Congress has appropriated money specifically for “capital expenses” related to compliance with the Supreme Court decision. That money, currently $41 million out of the total Title I budget of $7.7 billion, goes for buying or leasing mobile classrooms or for computer hardware. But in many districts, the federal capital funds do not cover all the compliance costs.

To make up the rest, districts must pay for compliance with Felton by taking money “off the top” of their entire Title I allocations. That is a U.S. Department of Education rule first announced in 1985 by then-Secretary William J. Bennett.

Critics have challenged the off-the-top funding rule as unfair to Title I students in public schools, but courts have upheld it. One result has been to make public and religious schools allies in their dislike of the Felton ruling. Besides the logistical difficulties the ruling has caused for both sectors, the ruling has meant that many districts have had less money to spend on Title I instruction than they otherwise would have.

That is not currently a problem in Allentown. Of the district’s total Title I allocation this year of $2.7 million, about $160,000 goes for services to students in the Catholic schools. But the district’s fleet of Title I vans is already paid for, so maintenance costs are all that remain.

Mr. Todd rejected an argument leveled by critics elsewhere that the post-Felton Title I programs for religious school students have been lavish while students in public schools make do with less.

“Our vans are not extravagant,” he said.

Ice Box

At St. Francis Catholic School here, paraprofessional Aggie Schaeffer gives a reading lesson to five students seated at two tables in a small Title I van parked on the school playground. She helps about 30 students, in groups of five or six, with reading for 30 minutes a day. Luckily, she said, she is not claustrophobic.

“It’s a pleasure to work with these students no matter what the conditions,” she said. But she recalled a recent day when water seeped into the van and froze on the carpet. Ms. Schaeffer took a big spill.

Linda Kressly, the principal of St. Francis, said she would like to welcome the remedial teachers back into her building.

“I think there is a lot of precious time wasted walking back and forth between the school and the van,” she said.

Jamie Schafer, a 4th grade teacher at Sacred Heart Catholic School, expressed reservations about the fact that five of her students are pulled out of class on a regular basis to get extra help in reading.

“It’s difficult because they are not always pulled out of class time when I am teaching reading,” she said. “They’re missing other subjects.”

That complaint could just as easily be made against Title I programs in public schools. But in its current form, public school Title I programs place more emphasis on helping needy students while they stay in their regular classrooms. New rules also allow Title I money to go for schoolwide improvements in eligible public schools. Private schools, religious or not, are not eligible for schoolwide improvement funds.

But even if the Felton decision is reversed and public school teachers could go back into religious school buildings, it is unlikely they would provide services in students’ regular classrooms.

Title I teachers “would still have to work with a distinct group of children,” Mr. Clark of the Allentown Diocese said.

Procedures and Legitimacy

PEARL’s main arguments against reversing Felton are that allowing public school teachers into religious schools creates a “symbolic union” between church and state and that the Title I program effectively subsidizes the religious mission of a parochial school by providing government aid for those students who lag in basic subjects.

But the group is also focusing on persuading the justices not to use the current New York City case to reverse the 1985 ruling.

The justices have asked the parties to the current appeal to address whether the procedure used by the New York City board of education to get its case back before the high court was proper. The board filed a motion seeking relief from the 1985 ruling based on the fact that a majority of justices expressed doubts about its legitimacy in a separate 1994 case, Board of Education of the Kiryas Joel Village School District v. Grumet. (“N.Y.C. Seeks To Overturn Limits On Title I at Religious Schools,” Feb. 28, 1996, and “N.Y.C. Gets Go-Ahead To Seek Felton Reversal,” May 29, 1996.)

Lower courts rejected the board’s request but ruled that the board was on solid procedural ground, thus allowing the appeal to proceed to the Supreme Court.

PEARL argues that the high court’s own legitimacy is at stake in the case. The justices should not create the impression that “constitutional doctrine vacillates merely because of changes in the court’s membership,” Stanley Geller, pearl’s lawyer, argues in a brief.

The case will be argued April 15, with a decision expected by the end of the court’s term in late June or early July.

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