Yeshivas Included in Benefit Program Supreme Court Expected to Uphold U.S. Remedial Aid for Non-publ

A Jewish legal aid society official said today that the approach used by a federal judge in upholding the constitutionality of a federally-funded remedial education program for religious schools in New York City, including yeshivas, indicated that a similar ruling by the Supreme Court was likely.

Judge Edward Neaher of the Eastern District for New York, sitting in Brooklyn, ruled on October 12 that the city’s program under Title I of the Federal Elementary and Secondary Education Act of 1965, which sends teachers employed by local school boards to such schools, including yeshivas, to teach remedial reading and mathematics to educationally and economically deprived students, does not violate the First Amendment ban on establishment of religion.

Dennis Rapps, executive director of the National Jewish Commission on Law and Public Affairs (COLPA), in describing the significance of the approach used by Judge Neaher, said it was his understanding that both Jewish and non-Jewish foes of such funding on constitutional grounds may not make an appeal to the Supreme Court because they feel they would lose.

However, he added, with three similar test cases in various stages now before other federal district courts, it was likely that the issue would eventually be brought before the Supreme Court, a possibility mentioned by Judge Neaher in his ruling.

BASIS FOR RULING

The case ruled on by Judge Neaher — Felton v. Board of Education — arose when a group of New York citizens filed suit to bar city and federal education officials from permitting the assignment of teachers, paid with public funds, to religious schools to provide remedial education for such pupils. The suit contended that any assignment of teachers paid with public funds to “perform education services within the religious schools of New York City during regular school hours” was a violation of the First Amendment.

Judge Neaher held that, based on the record presented in the case, the program, in operation since 1965, did not in fact advance religion or create a substantial risk of such advancement.

Rapps said this was a second decision by a federal judge upholding the constitutionality of New York City’s use of Title I funds. In PEARL v. Harris, Judge Charles Tenney, sitting in Manhattan, ruled in 1980 that the program in the New York City was constitutional.

In that case, in which Howard Rhine, former COLPA president, and Rapps represented yeshiva and day school students, an extensive record of the operation of the Title I program in New York City was presented. The plaintiffs used the same argument submitted in the Felton case. The Supreme Court refused to hear an appeal from Judge Tenney’s ruling.

However, Rapps said, that refusal may have been only because the appeal was filed too late and thus could not be considered an indication of the Supreme Court’s view on the issue. The plaintiffs in the Felton case sought a ruling by Judge Neaher declaring the federal law unconstitutional on its face. Rapps noted that the parties in the Felton case had stipulated that the case would be decided on the record of the Harris case and no new evidence was introduced.

Judge Neaher ruled that the evidence about the operation of the city’s program demonstrated that the plaintiffs’ concerns “about the potential for the unconstitutional mingling of government and religion in the administration of this type of program have not materialized.”

SUPREME COURT’S APPROACH TO ISSUE

Rapps said Judge Neaher’s opinion was another indication that courts will continue the relatively recent approach of evaluating the details of specific programs under constitutional challenge. He added that the prior practice of merely stating constitutional doctrine without seeking to determine the actual operation of various programs had resulted in the arbitrary denial of needed public funds to children, including yeshiva children, receiving their secular education in religious rather than public schools.

He said the banned programs included instructional equipment, trips, educational enrichment projects and guidance counseling. He said the remedial aid program for 1978, which he called a representative year, involved $146 million for all New York City schools, with about $1.1 million for yeshiva students and $2.7 million for non-Jewish religious school students.

Rapps noted that, in two recent religious school funding cases, the Supreme Court had employed the actual operation approach. One involved payment to such schools for costs of keeping and reporting attendance records, and the other, deductions from state income taxes for tuition paid to public and private schools. In both cases, in which COLPA attorneys represented yeshivas, the Supreme Court had found no significant mingling between the state and the religious schools and upheld the challenged statutes.

Rapps also said, in referring to a possible Supreme Court review of the Title I funding, Judge Neaher had declared that “undoubtedly the Supreme Court will not ignore the direct evidence of how Title I has functioned and operated in New York City’s non-public schools for some 17 years, in favor of the plaintiff’s conjecture about the possibility of unconstitutional government activity inherent in the arrangements in this program.”

The pending cases are in the district courts in Frankfort, Ky., St. Paul, Minn.; and St. Louis, Mo.