Supreme Court Appeal Planned on Ruling Which Bans Title I Remedial Aid to Religious Schools

A Jewish legal aid society expert said today that plans were underway to appeal to the Supreme Court against a unanimous ruling by a federal appeals court here that a federallyfunded New York City program which sends public school teachers into religious schools, including Jewish day schools, to provide remedial instruction is unconstitutional.

The three-judge decision, handed down by the Court of Appeals for the Second Circuit Court on July 9 in Manhattan, declared the program violated the First Amendment ban against governmental involvement with religion. The ruling reversed a decision last October 12 by federal district judge Edward Neaher, who had dismissed a suit by a group of taxpayers challenging the education program.

Judge Henry Friendly, who wrote the 68-page decision holding the program unconstitutional, said Neaher should issue an injunction stopping the program to provide sufficient time to find an “alternative program.”

Friendly wrote that, since 1966, New York City has been getting federal money to send public school teachers and other professionals into religious and other non-public schools to provide remedial instruction and guidance for students from low-income groups. The program has been implemented under Title 1 of the federal Elementary and Secondary Education Act of 1965.

NATURE OF THE APPEAL

The remedial aid program has not been tested in the Supreme Court. Dennis Rapps, executive director of the National Jewish Commission on Law and Public Affairs (COLPA), who said an appeal would be filed, noted that similar test cases now before other federal courts indicated the likelihood that the issue would probably come before the Supreme Court, whether or not the Supreme Court agreed to consider the planned appeal from New York.

He said the appeal would involve the federal Department of Education and “intervenor defendants,” referring to students attending Catholic schools in the New York City area. Rapps said the students would be represented by Williams and Connolly, a Washington law firm.

Rapps said that, unlike earlier stages in the legal battle over the constitutionality of the remedial aid program, COLPA would not be directly involved in the projected appeal to the Supreme Court. He said COLPA would file two friends-of-the-court briefs, one in support of the application to the Supreme Court for reversal of the circuit court ruling and another in support of the Title 1 provision under which the remedial aid program has been carried out.

Rapps, noting that the Supreme Court is currently in recess, said the appeal will be filed within 45 days “to start the clock rolling,” requiring foes of the remedial program to file opposing briefs.

Citing Judge Neaher’s ruling that no promotion of religion had, in fact, occurred in the course of the program’s operation, Judge Friendly declared that “that is a fundamentally wrong approach to the problem of public aid to religious schools. There is no guarantee that what seems to have been an enlightened approach by the city administration of its plan for sending public school personnel to religious schools will continue.”