Public school teachers in religious schools

Christian Century, May 7, 1997

Attorneys for the Justice Department and the city of New York have told the U.S. Supreme Court that the justices made the wrong decision 12 years ago when they barred public school teachers from entering religious schools to teach remedial programs in English and math. The immediate issue, in what some observers believe could be a pivotal church-state case, is how Title I federal education funds can be used. The funds go to local public school districts to provide supplementary programs for economically disadvantaged and underachieving students whether in public, private or religious schools.

The justices could choose to use the current case, Agostini v. Felton, to provide new criteria for the way decisions involving separation of church and state are handled. Steven T. McFarland, general counsel for the Christian Legal Society, urged the court to do just that, saying it has the opportunity to "restore coherence and predictability to the law of religious liberty."

The case, on which the justices heard oral arguments April 15, is a challenge to the high court's 1985 ruling in Aguilar v. Felton, in which it held that public school teachers could provide remedial help to parochial school students but could not do so inside religious -schools. New York and parents of parochial school students challenged the ruling, arguing that compliance with the Aguilar decision makes it too expensive to cover all students needing the aid and provides inferior education to students in religious schools.

Since the Aguilar ruling, New York has operated a fleet of mini-vans outside religious schools. Paul A. Crotty, corporation counsel for New York, told the nine justices that the vans are "noisy, cramped with ten students and their teacher and without bathrooms or storage space." Crotty said Aguilar has meant that all of New York City's schoolchildren are disadvantaged as a result of the large expenses incurred in operating the vans. He told the court that New York has spent $100 million-on buses and related expenses since its earlier decision. Crotty estimated that there are about 22,000 city students in religious schools who qualify for the federal assistance and are adversely affected by the Aguilar ruling.

Acting U.S. Solicitor General Walter Dellinger said the Clinton administration supports New York in seeking to allow the public school teachers to enter parochial schools. Dellinger contended that the court could overturn its earlier decision without having to make any major revisions to its previous church-state rulings.

Arguing in favor of the Aguilar ruling, Stanley Geller of the National Committee for Public Education and Religious Liberty said allowing public school teachers to provide education inside parochial schools would violate the Constitution's provision separating church and state. Geller did not argue against parochial school students' receiving federal benefits, but he insisted they should receive the aid at "religiously neutral sites."

"Teachers are different, teachers are uncontrollable and very unprofessional," Geller maintained in response to a question from Justice Antonin Scalia as to how the work of federally financed teachers in religious schools differed from other services offered such schools by the government, including books and police and fire department assistance. That drew a sharp retort from Justice Sandra Day O'Connor: "Do you really think that this court senses that teachers are unprofessional and uncontrollable? That flies in the face of all tradition." O'Connor noted that New York operated Title I for 19 years without a single incident of a public school teacher's injecting religion into remedial education until the Supreme Court said teachers' practices failed to safeguard the so-called "establishment" clause creating the division between church and state.