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Board of Education of the Kiryas Joel Village School District v. Grimet
New York Court of Appeals




Although we believe that Chapter 748 is a constitutionally acceptable legislative resolution of the problem facing handicapped children in Kiryas Joel, we readily concede that it is an extraordinary resolution. And, as noted above, it is far from an ideal resolution.

That the legislature saw fit, and necessary, to fashion such an unusual remedy points to a striking aspect of this case, one the Court would do well explicitly to consider. Prior to 1985, the Monroe-Woodbury Central School District provided special education services to the handicapped children of Kiryas Joel by sending public school personnel to an annex of one of the religious schools in the Village. However, after this Court's companion rulings in School District of the City of Grand Rapids v. Ball, 473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), prohibiting public school teachers from entering religious school premises to provide statutorily mandated remedial education services, the school district concluded that it could no longer continue this arrangement. Thus was launched the extraordinary odyssey that at long last has brought the parties to this Court today -- with stops along the way for bitter negotiations that led to nowhere, several rounds of acrimonious litigation in the state courts, and a visit to the state capitol in Albany for some extraordinary legislative relief.

When Felton was decided, Chief Justice Burger commented on the practical implications of the ruling:

"Under the guise of protecting Americans from the evils of an


Established Church such as those of the 18th century and earlier times, today's decision will deny countless schoolchildren desperately needed remedial teaching services funded under Title I. The program at issue covers remedial reading, reading skills, remedial mathematics, English as a second language, and assistance for children needing special help in the learning process. The 'remedial reading' portion of this program, for example, reaches children who suffer from dyslexia, a disease known to be difficult to diagnose and treat. Many of these children now will not receive the special training they need, simply because their parents desire that they attend religiously affiliated schools.... I cannot join in striking down a program that, in the words of the Court of Appeals, 'has done so much good and little, if any, detectable harm'." 473 U.S. at 419-20 (Burger, C.J., dissenting).

Justice O'Connor, in a similar vein, offered the following observation:

"For these children, the Court's decision is tragic. The Court deprives them of a program that offers a meaningful chance at success in life, and it does so on the untenable


theory that public school teachers (most of whom are of different faiths than their students) are likely to start teaching religion merely because they have walked across the threshold of a parochial school. I reject this theory and the analysis in Meek v. Pittenger on which it is based. I cannot close my eyes to the fact that, over almost two decades, New York City's public school teachers have helped thousands of impoverished parochial school children to overcome educational disadvantages without once attempting to inculcate religion. Their praiseworthy efforts have not eroded and do not threaten the religious liberty assured by the Establishment Clause." Id., 473 U.S. at 431 (O'Connor, J., dissenting).

Eight-and-a-half years later, it has become apparent that Felton and Grand Rapids have had negative impacts that extend considerably further even than the dissenting Justices at that time envisioned -- not just in the context of statutorily mandated remedial education services to religious school students, but also in the context of cases like this one involving special education services for the handicapped.

In 1987, Agudath Israel called on Congress to take steps to help alleviate the post-Felton problems, which had become apparent already then. We summarized those problems under four broad headings:


"These, then, are the problems created by Felton: (1) decreased participation by nonpublic schools students in the Chapter 1 program; (2) academically and socially unsatisfactory off-premises alternate service delivery mechanisms for students who do participate; (3) staggering administrative expenses necessary to implement such off-premises services; and (4) heightened inter-community strife and tension." (Testimony of David Zwiebel on behalf of Agudath Israel of America, before the House Subcommittee on Elementary, Secondary and Vocational Education, March 30, 1987.)

Each of these four points, no less valid today than when Agudath Israel presented its congressional testimony, merits brief elaboration.

(1) Decreased Participation: In an August 1993 study, Chapter 1 Services to Private Religious School Students: A Supplemental Volume to the National Assessment of the Chapter 1 Program (hereafter referred to as the "Department of Education Study"), the U.S. Department of Education indicated that there was a considerable decline in the number of nonpublic school students participating in the Chapter 1 program in the years since Felton was decided -- dropping from


approximately 185,000 in 1984-85, the year prior to the decision in Felton, to approximately 128,000 in 1985-86, and then gradually increasing to approximately 158,000 in 1990-91 (the last year for which figures were available). Department of Education Study at 9. The study shows that despite a broad array of alternative service delivery mechanisms developed in the aftermath of Felton -- e.g., mobile vans parked near religious schools; other neutral sites; public school facilities; computer assisted instruction on religious school grounds -- the level of religious school student participation still has not reached pre-Felton numbers. Id. at 8.

(2) Diminished Quality: The Department of Education Study focused also on the quality of Chapter 1 services for nonpublic school children in the post-Felton era:

"Although the religious-school educators interviewed in the case studies said that their students benefitted from Chapter 1, they also said that services were better before Felton. They expressed concern about the physical and programmatic isolation of Chapter 1 from other school programs... As other studies have documented, the mobile units can be noisy, difficult to park and very cramped. At the risk of over-simplification, case study data suggest that good teachers were usually able to adapt to the limits imposed by the mobile units, but they


seldom overcome them. Other teachers had difficulty adapting to the mobile units and ended up relying on a very limited repertoire of instructional activities. CAI [Computer Assisted Instruction] as a single service delivery option typically does not focus on advance thinking skills or expose students to challenging content, and students often have little or no direct contact with Chapter 1 instructional personnel. CAI in combination with other strategies appeared to be an improvement, but there were difficulties in coordination and communication, which almost certainly detracted from the overall quality of the instructional program". Id. at 53-54.

Agudath Israel's own experience in dealing with Jewish nonpublic schools confirms these findings. Particularly with respect to off-premises services, the principals of these schools have complained that they face severe administrative and logistical problems. Those problems pale in comparison to the problems faced by students who have to put on their coats and boots in the middle of the school day to traipse along to some off-premises site for remedial education, who suffer displacement, disruption and discomfort, as well as a social stigma that negates much of the benefit of the Chapter 1 remedial program. And while computer assisted Chapter 1 instruction has gained some popularity in the schools we deal with, the overwhelming consensus


of the principals is that there is no substitute, especially in remedial education, for face-to-face instruction and interaction.

(3) Economic Costs: Congress has appropriated many tens of millions of dollars to cover the costs needed to develop alternative service delivery mechanisms in the aftermath of the Felton ruling. Appropriations for capital expenses for fiscal years 1988-91 approached $81 million. [Department of Education Study, at 43.] However, according to a 1989 GAO study, districts throughout the country incurred some $105 million in eligible expenses through 1988-89, id. -- thereby requiring state and local governments to make up the additional costs either through special local allocations, or directly out of Chapter 1 educational funds.

Several courts have ruled that special expenses incurred by school districts in implementing the necessary alternative service delivery mechanisms must be borne by the Chapter 1 program as a whole, not just by that portion of the program allocated to nonpublic schools. Board of Education of City of Chicago v. Alexander, 983 F.2d 745 (7th Cir. 1992); Barnes v. Cavazos, 966 F.2d 1056 (6th Cir. 1992); Pulido v. Cavazos, 934 F.2d 912 (8th Cir. 1991). Thus, Felton's impact has been felt not only in the nonpublic school sector, but even in the public schools, from which vitally important Chapter 1 dollars have been siphoned off to cover alternative service delivery mechanisms for nonpublic school children.

(4) Inter-community strife: This case, and several others that have arisen in the post-Felton era (see, e.g., Parents' Association of P.S. 16 v. Quinones, 803 F.2d


1235 (2d Cir. 1986)), point to one of the most tragic ironies of the Felton decision: It has engendered precisely the types of "political divisiveness along religious lines" that Justice Brennan's majority opinion, 473 U.S. at 414, claimed it was designed to avoid. See also Justice Powell's concurring opinion in Felton, 473 U.S. at 416. So long as Felton remains the law of the land -- and local education officials struggle to balance the competing requirements of providing religious school children with equitable Chapter 1 services while avoiding anything that might cross the line into forbidden establishment of religion, all the while trying to achieve both goals within reasonable budgetary constraints -- conflict is likely to arise again and again.

The constitutionality of public school teachers entering religious school premises for the purposes of delivering remedial or special education services is not now directly before this Court. However, as should be readily apparent by the background that led up to this litigation, the ideal solution to the problem faced by the 200 handicapped children of Kiryas Joel -- and the problem faced by thousands of nonpublic school students who have been deprived, qualitatively and quantitatively, of statutorily mandated special education or remedial education services; and the problem faced by the many hundreds of thousands of public school students whose funds for such services are being eaten away by the "off-the-top" costs of providing the alternative service delivery mechanisms required by Felton; and the problem faced by all taxpayers who have been forced to bear the extra burden of enormous special legislative expenditures to help meet those additional costs -- the ideal solution would be for the Court to reconsider its justly maligned 5-4


rulings in Felton and Grand Rapids. And while the Court cannot directly do so in this case, it can offer signals.

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