News Analysis–Religious Jews hail high court ruling others worried

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It also could have direct implications for the ongoing legal dispute concerning the Kiryas Joel public school district in Orange, County, N.Y, which was created as an outgrowth of the case decided this week.

Monday's high court ruling reversed a 12-year-old decision banning public school teachers from offering special needs instruction at parochial schools.

The court, ruling 5-4 in Agostini vs. Felton — one of several weighty decisions expected to come down in the court's last week of session — said the practice does not violate the constitutional separation of church and state.

Not everyone in the Jewish community is cheering. Some legal activists and church-state watchdogs called the court action a setback for church-state separation.

While noting that the decision recognizes the need for safeguards to protect against government entanglement with religion, they expressed concern that the ruling could leave the door open for other forms of federal aid to religious schools.

But in the Orthodox community, where many have maintained that Jewish schools have suffered under the earlier ruling, the decision came as a welcome development.

David Zwiebel, general counsel and director of government affairs at Agudath Israel of America, which represents the ultra-religious, called the decision "a victory for people who are in the trenches of education and a victory for common sense."

The 1985 ruling stemmed from a New York City case that centered around the question of how to provide remedial education for parochial school students without violating the constitutional separation of church and state.

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

The 1985 ruling, known as Aguilar vs. Felton, did not ban public school teachers from assisting parochial students, but said such assistance could not take place in sectarian schools. As a result, the instruction could only be offered in public schools, in mobile classrooms, by computer or even on school buses.

To comply with the decision, public school systems across the country have spent hundreds of millions of dollars transporting students, leasing sites for instruction and purchasing equipment.

Citing an adverse impact on students and exorbitant costs, the Clinton administration, New York City and parents of some parochial school children had asked the justices to reopen the 1985 case.

Writing for the court majority, Justice Sandra Day O'Connor declared the 1985 ruling was "no longer good law."

O'Connor said the program was not invalid under the Constitution, noting that New York City had sufficient safeguards to prevent against improper church-state entanglement.

Outside the Orthodox community, many Jewish organizations, including the Reform movement, which operates its own day schools, found the ruling troubling.

The American Jewish Congress, speaking on behalf of several Jewish, Christian, educational and civic organizations, had filed a friend-of-the-court brief, urging the justices to uphold the basic principles of the 1985 ruling.

The groups said, however, that the decision could be modified to permit federally funded remedial instruction in parochial schools provided that safeguards were in place to guarantee the separation of church and state.

These groups said they were pleased that the court left the safeguards in place, but they were concerned about the potential implications of the decision.

After the Supreme Court ruled on Monday, Marc Stern, co-director of AJCongress' legal department, said he was most concerned by a statement the court made on an issue that was not before it.

He said the court's opinion indicates that public school teachers, in addition to offering remedial instruction, might be able to offer other supplemental courses, including some that are part of a parochial school's ordinary curriculum.

Such a move, Stern said, would undermine a major pillar of church-state separation — government's prohibition against assuming responsibility for the costs of sectarian education.

On the dissenting side, Justice David Souter charged that the ruling authorizes "direct state aid to religious institutions on an unparalleled scale."

Under the majority's logic, he wrote, state government will be free next "to assume, or assume payment for, the entire cost of instruction provided in any ostensibly secular subject in any religious school."

Echoing the view of many in the Orthodox day-school community, one Jewish educator was quick to praise the Supreme Court's decision.

"It will make a tremendous difference," said Leya German, principal of the Be'er Hagola Institute, the largest day school serving New York's Russian Jewish community.

Between 10 percent and 15 percent of the school's 1,000-some students receive remedial instruction.

German said compliance with the 1985 decision has regularly forced students to leave school premises, often on cold winter days, to receive instruction, a process that she said has proved highly "disruptive."

Other students have found themselves learning in isolation, sitting in front of computers or listening to teachers via audio feeds.

"The children miss the fact that there is no teacher that they can physically see and relate to," German said. "They still need the bond of a person, to have someone who can smile at them."

Meanwhile, legal activists involved in the Kiryas Joel dispute have been watching the Agostini case closely.

It was the 1985 decision in Aguilar vs. Felton, as the case was then called, that prompted the creation of a special school district for Kiryas Joel.

Kiryas Joel is an Orange County, N.Y., village whose residents are all Satmar Chassidim.

For years, learning and developmentally disabled children from the community had been provided with state-funded, special educational services by the nearest public school district, Monroe-Woodbury, whose teachers came to the Satmar yeshivas.

After the 1985 decision barred public school teachers from entering parochial schools, New York enacted a law creating a special school district for the Satmar's benefit.

The Supreme Court struck down the law as unconstitutional in 1994, paving the way for continuing legal battles over the issue.

While the immediate impact of this week's Supreme Court decision for the pending Kiryas Joel case is not yet clear, legal observers say it effectively rolls the clock back more than 12 years, restoring the situation to where it was before the entire dispute began.