In 1985, the Supreme Court held inAguilar v. Feltonthat instructional services under Part A of Chapter 1 of the Education Consolidation and Improvement Act of 1981 could not be provided in religiously affiliated private schools. While I have expressed support for reconsideration of that decision in an appropriate case (see enclosure), the decision continues to apply to Part A of Title I of the Elementary and Secondary Education Act of 1965, as amended by the Improving America's Schools Act (Title I), the successor to the Chapter 1 program.
I am writing to reaffirm the view of the Department of Education, originally articulated in 1985, that theFeltondecision need not have the effect of prohibiting on-premises services to religiously affiliated private school children in other federal education programs. The Supreme Court has recognized that the implications of one decision under the Establishment Clause are not always clear for other cases presenting different facts and circumstances.
The special statutory schemes and problems relating to other programs were not before the Supreme Court when it decidedFelton. InZobrest v. Catalina Foothills School Dist., 113 S. Ct. 2462 (1993), for example, the Supreme Court subsequently has held that the Establishment Clause did not prevent a school district from providing sign language interpreter services for a deaf student on the premises of a religious high school under a program funded by the Individuals with Disabilities Education Act. With respect to other programs such as the Bilingual Education Act, a prohibition of on-premises instructional services may make it impossible to provide authorized programs involving bilingual instruction in a wide range of academic subjects.
For these legal reasons and because of the educational concerns summarized in the enclosed statement, the Department of Education does not believe that theFeltondecision need be applied beyond the circumstances clearly addressed by that case. I shall keep you advised of further legal developments in this area. If you are aware of any controversy, including litigation, in which it is contended thatFeltonextended to other educational programs, please inform Judith Winston, my General Counsel. The Department intends to review any effort to applyFeltonbeyond its specific circumstances.
Richard W. Riley
cc: Chief State School Officers
State Directors of Special Education