By Any Means Necessary

Vivian Lindermayer

The Campaign to Overturn Felton v. Aguilar

After last year’s Newsday reports on the assorted inequities of the New York City Board of Education’s deluxe remedial education program for religious schools, New York’s education authorities adopted a new media strategy: After years of stonewalling, the Board of Education, together with state and federal education officials, now acknowledged the high costs of the religious school program and the havoc these costs created in the qual-ity and availability of remedial services to public school children—but then shifted responsibility away from themselves and onto the Supreme Court’s decision in the National Committee for Public Education and Religious Liberty’s (PEARL) Felton v. Aguilar (1985).

Apparently, Felton made them do it. This media tactic would be laughable, were it not for the fact that it has now become the defendants’ legal strategy as well. And a potentially successful strategy at that, since it has been helped along considerably by some unfortunate recent federal court decisions.

In Felton v. Aguilar (1985), a landmark lawsuit brought by PEARL, the Supreme Court ruled that sending public school teachers into parochial school classrooms to provide remedial services in reading, math, and English as a Second Language violated the Establishment Clause. New York City was then ordered to implement an alternative plan, and in 1987, after it became apparent that the alternative plan was just as unconstitutional as the pre-Felton arrangement—and a lot more costly—PEARL went back to court again (PEARL v. Secretary, U.S. Department of Education et. al, known informally as Felton II.)

In April 1995, after eight years of legal maneuvering and stalling efforts by the Board, PEARL filed a motion for summary judgment and awaited the court’s response.

For the eleven years since Felton and the nine years since Felton II was first filed, the city and state somehow failed to notice that the costs of the post-Felton alternative plan were too onerous to bear, or that a seismic shift had occurred in church-state law. Then suddenly—and after five Supreme Court Justices indicated that they were interested in reconsidering Felton (in Grumet v. Kiryas Joel Village School District)—the Felton II defendants saw the light. In the spring of 1996, state and city officials invoked a Federal Rule of Civil Procedure—Rule 60(b)(5)—to ask the federal district court to relieve them of the burdens of complying with Felton. Taking their cue from the Kiryas Joel decision, the school authorities argued that Felton’s demise was imminent, that recent church-state decisions negated Felton, and that their motion should be granted on the grounds that Felton was no longer applicable.

Rule 60(b)(5) provides that “a court may relieve a party…. from a final judgment [if] the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or vacated, or it is no longer equitable that the judgment should have prospective application.” In the Felton case, only the second consideration applies, and no court had yet found that the rule can be properly invoked in the absence of an actual, indisputable change in the applicable law. Nonetheless, District Court Judge John Gleeson issued a decision in late summer that put the defendants on a superhighway to the Supreme Court. The judge found that the defendants had properly invoked the rule, and then denied their motion on the grounds that Felton was still the law! Bizarre or not, this decision allowed the city and state to appeal directly to the U.S. Court of Appeals for the Second Circuit, which, after granting an expedited appeal, affirmed the lower court’s ruling.

Without stopping to catch their breath, the city and state petitioned the U.S. Supreme Court for review, where they were soon joined by the U.S. Department of Education. Defendants argue that the Supreme Court plans to revisit Felton and overturn it, and that subsequent decisions in Zobrest v. Catalina Foothills School District (1993), Rosenberger v. Rector & Visitors of University of Virginia (1995), and, of course, Grumet v. Board of Education of Kiryas Joel Village School District (1994) have refuted or undermined the holding in Felton.

PEARL counsel Stanley Geller has filed a cross-petition arguing that the procedural mechanisms used by the defendants are so improper that they should be rejected by the Supreme Court. (As for Felton II, Judge Gleeson just ruled against PEARL.)

  1. This procedure has no basis in the plain language of the rule, the case law interpreting the rule, the procedure followed by the Supreme Court in reconsidering a prior decision, or basic principles of common as well as constitutional law.
  2. This procedure, if given a stamp of approval by the Supreme Court, would burden the Court and lower courts with unwarranted motions, as enterprising losing parties saw occasion to use the rule whenever the make-up of the Court appeared to have changed to their benefit.
  3. Finally, the defendants’ petition, if granted, would bring the Felton decision back for reconsideration on the basis of a record that is inadequate and out of date.

PEARL’s cross-petition to the Supreme Court details all three issues enumerated above, and is available from our offices. For those of us most concerned with religious liberty and the health of public education, however, the implications of the third item merit the most elaboration.

The record submitted by the Defendants in their Rule 60(b)(5) motion is the same record as that presented to the Court when it decided Felton in 1985. Yet, on the same day as Felton, the Supreme Court heard and decided School District of Grand Rapids v. Ball, in which it found that two programs in which publicly paid and employed teachers provided instruction in several “secular” courses on the premises of religious schools were unconstitutional, not only because of “excessive entanglement” between religious and government authorities but also for two broader reasons. As Justice Brennan explained:

The symbolic union of church and state inherent in the provision of secular, state-provided instruction in the reli-gious school buildings threatens to con-vey a message of state support for reli-gion to students and the general public. Finally, the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial por-tion of their responsibility for teaching secular subjects.

Obviously, Grand Rapids was not part of the record submitted in Felton. If, therefore, the Supreme Court grants the defendants’ motion as is, the Court will not be presented with facts related to the issues addressed in Grand Rapids and subsequent decisions. Namely: Isn’t government-provided “remedial instruction” in such basic subjects as reading and mathematics in religious schools as much a subsidization of the religious functions of these schools as the instruction in art, music, and physical education struck down in Grand Rapids?

To make matters worse, the remedial program in effect today has changed significantly since 1985—and in ways that strike at the heart of the constitutional question in Felton. Changes in the statute authorizing the program (known as “Chapter I”) have resulted in more and more schools, including religious schools, using their Chapter I funds on a school-wide basis. In New York City, school-wide projects are available only in public schools, but who is to say that that won’t change? Certainly not anyone quoted in 1985, when school-wide Chapter I was not an issue.

Here is how Michele Nowosad, the person in charge of administering Chapter I in New York City, describes school-wide projects:

Under this method, services are pro-vided to the entire school; all students in the school are considered Chapter I eli-gible and receive services. The goal of the schoolwide projects is the redesign of the curriculum for the entire school body. The focus is on school-wide prob-lem areas which require improvement. … In one school Chapter I funds could be used to hire a librarian, in another school to hire additional counselors, in a third to reduce class size and in a fourth to buy computers.

The New York City Board of Education, moreover, now prefers the “push-in” method of providing Chapter I: “the Chapter I teacher together with the regular classroom teacher, provides instruction to the entire class, with special attention being given to the educational needs of the Chapter I students.”

In the Chapter I program struck down in Felton, Chapter I students in religious schools received instruction in separate classrooms, specifically designated as Chapter I classrooms, from which all religious indicia had been removed. If the Supreme Court accepts the defendants’ petition, none of us will know how Chapter I services will be provided, since Nowosad’s testimony, taken in 1995, as well as any additional testimony, will not be part of the record on appeal.

PEARL’s cross-petition to the Supreme Court on the rule motion asks the Court to deny the defendants’ petition. Failing denial, PEARL asks the Court to remand the case to the District Court so that a full record can be developed, with a hearing or trial on the facts, so that the Court would be able to take into full account the facts and events that have transpired and the decisional law handed down since Felton. PEARL also asks that, on remand, the Board of Education be required to submit a specific plan for administering Chapter I if Felton is struck down so that all parties know precisely what is presently at issue.

Given the voucher threat, both nationally and locally, it is tempting to overlook the less obvious but equally serious threats posed by Chapter I subsidies to religious schools. That temptation should be resisted at all costs, for it comes with great costs: After all, it requires no great leap—at least in the political debate—to go from justifying funding a school-wide project to justifying funding a school. Especially when the legal strategy of the right is ultra-sensitive to precedent-setting uses of public money for religious schools.

PEARL has alerted all its organizational members, as well as other concerned organizations, to the dangers posed by the defendants’ Rule 60(b)(5) maneu-ver—to due process, to the First Amendment, to public education. Needless to say, we will keep you posted.

Vivian Lindermayer

Vivian Lindermayer is the Associate Director of the National Committee for Public Education and Religious Liberty (PEARL), a national coalition of organizations, including the Council for Secular Humanism. PEARL is dedicated to preserving public schools and church-state separation.


The Campaign to Overturn Felton v. Aguilar After last year’s Newsday reports on the assorted inequities of the New York City Board of Education’s deluxe remedial education program for religious schools, New York’s education authorities adopted a new media strategy: After years of stonewalling, the Board of Education, together with state and federal education officials, …

This article is available to subscribers only.
Subscribe now or log in to read this article.