Felton v. Secretary, U.S. Dept. of Educ.
| Citation | 739 F.2d 48 |
| Decision Date | 09 July 1984 |
| Docket Number | D,No. 964,964 |
| Parties | 18 Ed. Law Rep. 848 Betty-Louise FELTON, Charlotte Green, Barbara Hruska, Meryl A. Schwartz, Robert H. Side and Allen H. Zelon, Plaintiffs-Appellants, v. SECRETARY, UNITED STATES DEPARTMENT OF EDUCATION, and the Chancellor of the Board of Education of the City of New York, Defendants-Appellees, and Yolanda Aguilar, Lillian Colon, Miriam Martinez and Belinda Williams, Intervenor-Defendants-Appellees. ocket 83-6359. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Stanley Geller, New York City, for plaintiffs-appellants.
Michael Jay Singer, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee Secretary of Education.
Lorna B. Goodman, Asst. Corporation Counsel, New York City (Frederick A.O. Schwarz, Jr., Corporation Counsel, and Leonard Koerner and Michael Gage, New York City), for defendant-appellee Chancellor.
John J. Buckley, Jr., Charles H. Wilson, Paul Mogin, Washington, D.C. (Williams & Connolly, Washington, D.C.), Joseph C. Markowitz, New York City (Parker, Auspitz, Neesemann & Delehanty, New York City), for intervenor-defendants.
Before FEINBERG, Chief Judge, and FRIENDLY and OAKES, Circuit Judges.
The venerated language of the First Amendment provides that
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....
Title I of the Elementary and Secondary Education Act of 1965 ("the Act"), 20 U.S.C. Sec. 2701 et seq., 1 declared it to be the policy of the United States to provide financial assistance to local educational institutions serving areas with concentrations of children from low-income families to expand and improve their educational programs which contribute particularly to meeting the special educational needs of educationally deprived children, and authorized the Commissioner, now the Secretary, of Education to make payments to State educational agencies for grants made on the basis of entitlements created by the statute. Since 1966 New York City ("the City") has been receiving federal funds to finance programs wherein it sends public school teachers and other professionals into religious and other nonpublic schools to provide remedial instruction and clinical and guidance services to students meeting the standards of the Act and the Secretary's regulations thereunder. The question is whether the Establishment Clause permits this.
We have no doubt that the program here under scrutiny has done much good and that, apart from the Establishment Clause, the City could reasonably have regarded it as the most effective way to carry out the purposes of the Act. We likewise have no doubt that the City has made sincere and largely successful efforts to prevent the public school teachers and other professionals whom it sends into religious schools from giving sectarian instruction or otherwise fostering religion. However, we hold that the Establishment Clause, as it has been interpreted by the Supreme Court in Public Funds for Public Schools v. Marburger, 358 F.Supp. 29 (D.N.J.1973), aff'd mem., 417 U.S. 961, 94
S.Ct. 3163, 41 L.Ed.2d 1134 (1974); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) (particularly Part V, pp. 367-72); and Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977), constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here. A more elaborate statement of the facts follows.
The Act provides for annual Congressional appropriations for programs proposed by local educational agencies ("LEAs") and approved by state education agencies ("SEAs"), 20 U.S.C. Sec. 2731. All programs are administered solely by the LEA in the particular area and are staffed entirely with the LEA's employees. 20 U.S.C. Sec. 2734(m); 45 C.F.R. Secs. 116.42, 116a.23(f). To be eligible for Title I funds, a program must satisfy certain statutory criteria that are designed to assure that the Act's purposes are advanced. For example, Title I funds may be provided only to children who meet the dual eligibility requirement of (1) educational deprivation, defined as below age-level performance, and (2) residence in an area designated by the LEA, in accordance with Title I regulations, as having a high concentration of children from low-income families. 20 U.S.C. Secs. 2722, 2732-34. Federal financing is available only for programs that will supplement, rather than supplant, non-federally funded programs that would have been available in the absence of Title I funds. 20 U.S.C. Secs. 2734(f), 2736(c).
20 U.S.C. Sec. 2740(a) provides:
To the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency shall make provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate.... Expenditures for educational services and arrangements pursuant to this section for educationally deprived children in private schools shall be equal (taking into account the number of children to be served and the special educational needs of such children) to expenditures for children enrolled in the public schools of the local educational agency.
Regulations issued by the Secretary require that each LEA provide services designed to meet the needs of educationally deprived children who attend private schools, see 45 C.F.R. Sec. 116a.23. Going somewhat beyond the statute, the regulations provide that the types of services to be provided shall be determined "on a basis comparable to that used in providing for the participation of public school children." Id. 2
The New York City Board of Education ("the Board") has developed elaborate procedures, not questioned here, for identifying the "target public school attendance areas" satisfying the economic disadvantage criteria for Title I eligibility 3, see 20 U.S.C. Sec. 2732, and the students in need of remedial instruction, see 20 U.S.C. Sec. 2734(b). New York State has developed procedures, also not criticized here, for determining New York City's share of the Title I funds received by it. The New York City Board of Education allocates these funds between public and nonpublic school children according to a per capita formula based on the total number of public and nonpublic school students determined to be eligible for Title I services. These amounts are then scaled down to take account of budgetary constraints. In 1981-82 the nonpublic school population benefitting from the City's Title I program constituted 13.2% of the total. The constitutional problem arises from the fact that the vast majority of these nonpublic school students attend religious schools, with schools affiliated with the Roman Catholic Archdiocese of New York and the Diocese of Brooklyn accounting for 84% of such students and Hebrew day schools accounting for another 8% (1981-82 figures).
The City's initial Title I program for nonpublic school students required them to travel to public schools after regular school hours to receive remedial services from public school employees. When attendance lagged, the Board transferred some Title I services to nonpublic schools after regular school hours while maintaining other services at off-premises sites. Attendance, however, remained poor. The reasons assigned for the failure of the programs were that both students and teachers were tired, that there was concern about the safety of the children traveling home after dark or in inclement weather, and that communication between Title I teachers and other professionals and the regular classroom teachers of the nonpublic schools was virtually impossible. A solution whereby nonpublic school students could participate with public school students in programs conducted at public schools during the regular school day was rejected in part because of doubts whether under Art. XI, Sec. 3, of the New York Constitution 4 nonpublic school students could participate with public school students in programs conducted on public school premises during regular school hours. In consequence, on August 31, 1966, the Board adopted a resolution that remedial reading, remedial arithmetic, speech therapy and guidance counseling for educationally disadvantaged children in nonpublic schools be provided on the latters' own premises by peripatetic public school employees who would go from one school to another during the school day. Essentially that program has been continued to the present time. A study made for the 1977-78 school year indicated that a program whereby the nonpublic school students would be transplanted to public schools would involve additional expense for transportation and other costs of more than $4.2 million, which would have been more than 42% of the budget for the nonpublic school Title I program. Apart from the large reduction in instructional and other services thereby entailed, the off-premises program, as alleged by the City, would have been less effective for reasons already indicated.
We interrupt this statement of the facts to indicate how the case comes before us. In 1976, the National Coalition for Public Education and Religious Liberty brought an action in the District Court for the Southern District of New York against the Secretary of Health, Education and Welfare, the United States Commissioner of Education, and the Chancellor of the New York City Board of Education to enjoin the program thus partially described as violative of the Establishment Clause. See National Coalition for...
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