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The United States Supreme Court today decided to hear an appeal
of the New York City Board of Education and Catholic school parents
about whether to allow remedial education to occur in religious
schools. That appeal will give the Court the opportunity to reverse
one of its most unfair and harmful decisions, Aguilar v. Felton.
In 1985, the Court in a 5-4 decision, decided that the federal
program at issue, then Title I of the Elementary and Secondary
Education Act of 1965, violated the Establishment Clause when
conducted in religious schools. The Title I program was the centerpiece
of the Great Society Program and is targeted at assisting all
educationally and economically disadvantaged children to read,
write and do mathematics better, regardless of the schools they
attend. Despite the fact that no one seriously doubted the enormous
good done by the program and despite the fact that its opponents
could not document a single instance of any unconstitutional use
of taxpayer funds, the Court decided that its caselaw required
the result. Four Justices strongly dissented, lamenting the harms
to the children that Title I was serving.
Those predictions have come true, to a greater extent than feared
at the time. In 1997, the Title I program costs more taxpayer
dollars, diverts funds from direct services to children, and,
in fact, serves fewer children, less effectively, than could be
served. Every U.S. Secretary of Education since 1985 has criticized
the post-Felton program and has struggled to provide services
to private school children in need of them consistent with the
Supreme Court's ruling. For the most part, those services are
provided in trailers and vans, leased at great expense by the
public school district. In 1994, in a case involving the creation
of a special school district in New York, five Justices traced
the problem in that case to its original decision in Felton and
indicated that the decision should be reviewed and perhaps abandoned
in an appropriate case.
In 1995, the Board of Education of the City of New York, and the
parents of children attending Catholic and Jewish schools in the
district, supported by the Secretary of Education asked to be
relieved of the requirement to provide the program off the premises
of religious schools. The lower courts in this case have decided
that they lacked the authority to depart from Felton, but the
Supreme Court could do so.
In deciding to hear the case, captioned Agostini v. Felton, I am confident that the Court has heard the claims of the parents and the Board of Education that the current system is too expensive and too ineffective. The Supreme Court should abandon its 1985 Felton decision, as inconsistent with its later decisions and as plainly wrong as the USCC argued then and throughout the last 12 years. I hope that this action signals the Court's willingness to do justice to the children most in need of education and sustain its constitutionality. We will make every effort to work for that result.