Focus on Issues: Orthodox Hope Supreme Court Will Void Church-state Decision

Orthodox Jewish groups are hopeful the U.S. Supreme Court will decide to reconsider an 11-year-old ruling barring public school teachers from traveling to Jewish and other religious schools to offer federally funded remedial classes.

In an unusual procedural move, the Clinton administration last week asked the court to reverse its 1985 decision in Aguilar vs. Felton.

U.S. Solicitor General Walter Dellinger, supporting a similar request by New York City earlier this month, filed a brief contending that the Aguilar ruling has had a “significant, adverse impact” on the ability of low-income religious school students to receive secular educational and counseling services.

To comply with the ruling, public schools have spent hundreds of millions of dollars for transporting religious school students to public schools, teaching in mobile vans outside religious schools and at leased sites, and using other instruction methods, the government brief said.

While the court is expected to make a decision in January whether to reopen the case, now called Agostini vs. Felton, the split in the Jewish community that accompanied the original ruling already is resurfacing.

Jewish defense organizations, such as the American Jewish Congress, backed the court’s 5-4 ruling that the practice of sending public school teachers into parochial schools amounted to unconstitutional “entanglement” of church and state.

Orthodox Jewish groups say Jewish schools have suffered under the ruling and have long urged reconsideration of the decision.

David Zwiebel, general counsel and director of government affairs for Agudath Israel of America, said the quality of the remedial educational services available to students in yeshivas has declined since the ruling while costing public schools “a fortune.”

Nearly 83,000 Jewish students attend yeshivas in New York’s five boroughs, according to Agudath Israel. Of those, 2,600 low-income students participate in remedial classes and counseling, accounting for about 25 percent of all religious school students in the New York area who receive the federally financed services.

Leya German, principal of the Be’er Hagola Institute, the largest day school serving New York’s Russian Jewish community, said compliance with the 1985 decision has created learning environments that are highly “impersonal.”

Many of her students receive instruction from teachers via television monitors and live audio feeds.

“They are sitting in isolation, which I’m totally against,” said German, who spent 35 years working in public schools.

Defenders of the Aguilar decision say that funds are being diverted to accommodate religious school students at the expense of public school students.

The only fiscally responsible solution that protects the separation of church and state is to provide remedial instruction at public schools to as many religious school students as possible, said Lisa Thurau, executive director of the National Committee for Public Education and Religious Liberty, the group spearheading legal efforts to block a reopening of the 1985 case.

AJCongress hopes the court decides to maintain the status quo. It filed a joint friend-of-the-court brief with the American Civil Liberties Union in 1985 urging the justices to limit the practice of sending public school teachers into parochial classrooms.

Whether or not parochial students are entitled to the services has never been questioned. Federal law mandates the use of public funds to pay for remedial instruction and guidance counseling for eligible students from low-income families, regardless of where the children attend school.

The quandary has centered around how to deliver the services to religious school students without violating the constitutional separation of church and state.

Under the Elementary and Secondary Education Act of 1965, the responsibility for providing the instruction falls to the public school system. Prior to the 1985 ruling, public school teachers taught remedial classes in parochial classrooms where religious symbols had been removed.

The Orthodox community’s efforts to undo the ruling received a boost when the New York City Board of Education, and later the U.S. Department of Education, said the Aguilar decision should be re-evaluated.

“The board of education became our ally when they looked at their fiscal ledger sheet and saw how much money they were using to deliver these services off- site,” Zwiebel said. “And it became clear to them that it was a colossal waste of money.”

In his brief, Dellinger said that “unique circumstances” justified the Clinton administration’s unusual request for the justices to take a second look. Dellinger noted there were indications that the 5-4 decision in Aguilar did not have the support of the current justices.

Of three current justices who weighed in on the 1985 ruling, only one voted in the majority. Other justices have since indicated concerns about the ruling.

Marc Stern, co-director of AJCongress’ legal department, said even if the justices reverse the decision, the implications for the separation of church and state are far from clear. Much would depend, he said, on what kind of directive the justices leave in its place.

“There are ways of overruling Aguilar that would impose relatively small costs on the separation of church and state, perhaps even tolerable costs,” Stern said. “Or the justices could demolish the wall” of church-state separation.

Other defenders of the Aguilar decision warned of the precedent the high court might set if it reopened the case.

“Every time there’s a 5 to 4 decision and the loser doesn’t like the outcome, we’ll see this kind of shenanigan going on,” Thurau said.

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