In 1985, the Supreme Court held inAguilar v. Feltonthat it is unconstitutional for public school personnel to provide instruction in religiously-affiliated private schools under Title I of the Elementary and Secondary Education Act. This decision 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 theFeltondecision in an appropriate case. In my opinion,Feltondoes not advance the progress of education or pass the test of good common sense. At a time when school budgets are under increased scrutiny,Feltonplaces an additional undue burden on them.
TheFeltondecision has had a significant negative impact on Title I services for the neediest children in both public and private schools. Importantly, the costs of compliance withFeltonare taken off the top of the school district?s total Title I allocation, prior to providing funds for comparable instructional services for public and private school children. Therefore, compliance withFeltonreduces the amount of Title I funds available for public school children, as well as private school children. Also, in the years immediately following the decision, there was a dramatic decrease in the number of private school children participating in the Title I program. Although the number has increased in subsequent years, the underlying problems caused by theFeltondecision continue. Instead of having Title I services in their own school buildings, as public school children generally have, religious school children must go to another location to receive instruction from a teacher. This creates not only logistical problems, but significant increases costs (for such things as transportation or the purchase or rental of mobile vans) which adversely affects both public and 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.Feltonstands in the way of our doing so.
Based on a 1989 study by the General Accounting Office, we estimate that school districts have expended hundreds of millions of dollars on non-instructional costs in order to comply withFelton. For example, for the 1995-96 school year, New York City along is budgeting $16 million for these costs. It is estimated that $10 million of this amount will come from a special Title I appropriation, but the remaining $6 million will have to come off the top of New York City?s regular Title I grant. This $6 million could be used to serve 5600 additional needy students in both public and private schools, or alternatively to improve services for thousands of children already being served under Title I in New York City. However, untilFeltonis reconsidered, New York City and other school districts must continue to comply with that decision.
As demonstrated by the facts of the original case, we believe that Title I services can be provided in private schools without aiding religion or creating excessive entanglement between government and religion. This Department has also supported and defended in litigation a variety of alternative arrangements for providing Title I services for private school children, including providing computer-assisted instruction in private schools and, in appropriate circumstances, parking mobile vans on or near private school property. There has been criticism, however, that even the alternative arrangements that have developed as a result ofFeltonare not the most educationally effective methods for providing Title I services. In addition, theFeltondecision at times has caused unnecessary tension between public and private school officials concerning how and where Title I services should be provided for private school children.
In light of these continuing problems, I support efforts to have theFeltondecision reconsidered in an appropriate case.