WASHINGTON (Jun. 6)
A federal appeals court, in a 2-1 decision, has upheld Missouri’s practice of allowing government-funded vans to provide remedial education in parochial school parking lots.
In a friend-of-the-court brief filed in the case of Pulido vs. Cavazos, the American Jewish Congress had argued to the 8th U.S. Circuit Court of Appeals that placing the vans on school property violated the First Amendment’s establishment clause, which bars government endorsement of religion.
Most American Jewish organizations have traditionally opposed any government support of religious institutions, citing the constitutionally mandated wall separating church and state.
The National Jewish Commission on Law and Public Affairs, however, an organization of volunteer lawyers and social scientists representing the observant Jewish community on issues of public concern, welcomed the May 21 ruling.
Earlier, the U.S. District Court in Missouri had upheld the parking of such vans on public streets off parochial school property, but barred them from school grounds.
Writing for the majority in the court of appeals decision, Judge John Gibson reasoned that a parochial school parking lot is “physically and educationally separate from the functions of the parochial school, and religiously neutral.”
In Missouri, Gibson wrote, the vans “do not contain or exhibit any religious symbols. Only secular subjects, remedial reading and mathematics, are taught in the units.”
In a dissent, Judge Arlen Beam wrote, “It is clear that the Supreme Court finds no location on church grounds acceptable.”
Beam was referring to Wolman vs. Walter, the 1977 case in which the U.S. Supreme Court held that a parochial school’s remedial services could be provided only at a “neutral site off the premises of the non-public school.”
Despite the uncertain constitutionality of vans in parking lots, the Supreme Court has explicitly barred such services from being offered in parochial school buildings — most recently in Aguilar vs. Felton, a 1985 case.
The National Jewish Commission on Law and Public Affairs, known as COLPA, has expressed its hope that the Supreme Court will agree to hear the Pulido case. A ruling by the Supreme Court affirming the appellate court’s decision would make it easier for yeshiva students to gain access to remedial services.
AJCongress is ambivalent about having the case reach the high court, anticipating a lack of resolve by that court to strictly interpret the establishment clause.
AJCongress is also concerned that the current court could decide to overturn Aguilar.
Instead, AJCongress plans to file a brief supporting a petition to have Pulido reheard by the circuit court.
Dennis Rapps, COLPA’s executive director, estimated that hundreds of yeshiva students currently do not take part in remedial programs because the programs are not conveniently located and because there is a “stigma” attached to them by fellow students.
“Parents don’t want their kids to go if they have to leave the building,” he said.
“I don’t know what the big deal is,” Stern countered. He added that even if the programs were offered in the parochial school, there would be a stigma attached.
“Kids are cruel,” he said.
New York City bars the vans from parochial school property and mandates that they be parked at least one block away from the school.
AJCongress would not object to the vans being placed immediately outside school grounds, Stern said.
Remedial education grants were first provided to parochial schools in 1965 under Title I of the Elementary and Secondary Education Act, one of the milestones of President Lyndon Johnson’s “Great Society.”
The program permitted the funding of remedial education programs for schools that cannot afford to pay for such services. Many yeshivas are “in the red” and cannot pay for such services on their own, Rapps said.
AJCongress’s Commission on Law and Social Action did not take a formal position on a related 3-0 ruling by the Missouri appeals court, which held that a disproportionate amount of the federal grant money for remedial programs could go to parochial schools.
Stern said his commission was leaning toward deeming such an arrangement constitutional, given the added expenses parochial schools incur because they cannot use their own buildings.