Annа BARRERA et al., Appellants, v. Hubert WHEELER et al., Appellees.
No. 72-1440.
United States Court of Appeals, Eighth Circuit.
March 16, 1973
Rehearing and Rehearing En Banc Denied April 11, 1973.
475 F.2d 1338
Before LAY, HEANEY and STEPHENSON, Circuit Judges.
We note that the trial judge gave an instruction limiting the use of this evidence to impeachment. Additionally, because this was evidence of prior similar acts, Pitman might have requested a limiting instruction concerning the probative use of the evidence.4 However, he did not, and thus the only question in this regard is whether the failure to so instruct was plain error.
Affirmed.
Thomas M. Sullivan, Kansas City, Mo., and Louis C. DeFeo, Jr., Jefferson City, Mo., for appellants.
Leo Pfeffer, New York City, for appellees.
We are presented on this appeal with significant questions relating to the lawful programming and proper allocation of funds to educationally deprived school children, both public and private, under Title I of the Elementary and Secondary Education Act of 1965,
The plaintiffs, suing individually and on behalf of their minor children, are parents of educationally deprived children who attend non-public schools in the State of Missouri. This class suit was commenced on April 6, 1970, in the United States District Court for the Western District of Missouri against the State Commissioner of Education and the eight members of the Missouri Board of Education. The plaintiffs claim that Title I funds are being arbitrarily denied to non-public school children in Missouri. In seeking injunctive relief plaintiffs assert violations of the First and Fourteenth Amendments and a denial of their civil rights under
Plaintiffs originally prayed for an injunction restraining defendants from continued violations of the Act as well as for an accounting of misapplied funds totalling over $13 million received and expended from 1966 through 1969. The trial court initially dismissed plaintiffs’ action because of their alleged failure to exhaust administrative remedies and because it believed the federal court should abstain from exercising jurisdiction since the case involved unsettled questiоns of state law. This court held these findings to be erroneous and reversed and remanded the case to the district court for trial. Barrera v. Wheeler, 441 F.2d 795 (8 Cir. 1971). Upon remand of the case plaintiffs filed an application for preliminary injunction on October 12, 1971. In a pretrial order on January 18, 1972, the trial court ordered a separate trial as to issuance of the injunction and limited the issues as follows:
- Whether Title I, ESEA, and the criteria established thereunder by the United States Commissioner of Education, requires that educational benefits provided by Title I be made available to educationally deprived children attending private schools on a basis that is equitable in quality, scope and opportunity, to those available to educationally deprived children attending public schools and that there must be an equitable sharing of educational resources provided by Title I so that the
amount expended for each Title I project as to an educationally deprived child attending a private school be as nearly equal as possible to the amount so expended as to each educationally deprived child attending a public school; - Whether the defendants may be excused from complying with the requirements of Title I, ESEA, and the criteria established thereunder by the United States Commissioner of Education, relating to the participation of educationally deprived children attending private schools, by reliance upon any interpretation of Missouri state constitutional provisions, statutes, regulations or state court decisions; and
- Whether it is lawful to make public personnel, who are employed to implement Title I projects, available on private school premises during regular school hours in order to provide special services to educationally deprived children attending private schools.
Upon trial of those issues the district court, in an unpublished opinion, denied injunctive relief and held that whether Missouri state law “prohibits the use of any money” for teachers to be employed in private schools was not necessary to be decided in the case. The court concluded that although there undoubtedly has been inequitable expenditures of Title I funds between educationally deprived children in public and non-public schools in some local school districts, such inequity could be rectified by private school authorities requesting their “equitable share of dollar aid” for private school pupils to attend after-school and summer school instructional programs.2
TITLE I AND ITS REGULATIONS
In 1965 Congress recognized that there were over five million children living in families whose income was less than $2,000 a year.3 The adverse poverty of thеse children was found to lead directly to educational neglect resulting oftentimes in human frustration, delinquency and crime. Congress further realized that the impact of poverty and financial hardship was not confined solely to public school children. Consequently, when Title I was drafted Congress expressly required the inclusion of non-public school children by conditioning any grant upon the proviso that:
“[T]o the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provisions for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . .”
20 U.S.C. § 241e(a)(2) (1972) .
The Act made it the strict responsibility of the local educational agency to plan and administer programs that would meet the particularized needs of all educationally disadvantaged children.4 Thus, the undisputed purpose of Title I was to benefit the educationally deprived child whether attending a public or a non-public school.5
Upon passage of the Act the United States Commissioner of Education provided by detailed regulation that educationally deprived children in private schools be afforded “genuine opportunities” to participate in Titlе I programs “comparable” to the programs available in public schools.6 In March, 1968, the Commissioner set out revised criteria for the approval of Title I applications based upon the law and the existing regulations which stated:
“The applicant‘s assessment of needs of children at various grade and age levels must include the children in the eligible public school attendance areas who are enrolled in private schools. This assessment is to be carried out in consultation with private school authorities and to provide the basis for (a) determining the special services in which private school children will have genuine opportunities to participate, and (b) selecting the private school children for whom such services are to be provided.
“The needs of private school children in the eligible areas may require different services and activities. Those services and activities, however, must be comparable in quality, scope, and opportunity for participation to those provided for public school children with needs of equally high priority. ‘Comparability’ of services should be attained in terms of the numbers of educationally deprived children in the project area in both public and private schools and related to their specific needs, which in turn should produce an equitable sharing of Title I resources by both groups of children.” Commission of Education, Title I Program Guide No. 44, 4.5 (1968).7 (Emphasis ours.)
We think it clear that the Act and the regulations require a program for educationally deprived non-public school children that is comparable in quality, scope and opportunity, which may or may not necessarily be equal in dollar expenditures to that provided in the public schools. Although the district court originally phrased the issue in terms of “quality, scope and opportunity,” it nevertheless based its opinion on an “equitable” funds standard. We, therefore, find the district court‘s ruling to be erroneous in holding that the use of Title I funds by the Missouri Board of Education meets proper standards and find that plaintiffs are entitled to equitable relief.
In the Kansas City, Missouri, school district where the plaintiffs reside, approximately 11,000 elementary and secondary students are eligible for Title I programs. Because of the limited funding and the wide disbursement of children, only about 7,000 public school pupils were enrolled in Title I programs. The number of educationally disadvantaged children in the five principal private schools in Kansas City was estimated at 355 (4.72 per cent of the 7,000 public school pupils receiving aid). These figures for the non-public schools are only estimates because (1) the income and the personal records of private school parents were not readily available to the public schools; (2) the non-public schools were not centrally organized and had to be dealt with separately; and (3) the public and non-public school officials notoriously failed to cooperate among themselves.
Almost the entire Title I program in Kansas City is devoted to remedial reading taught in the public schools during the regular school day for disadvantaged public school children only. Outside of equipment and materials provided to the private schools, the one program available under public school auspices for educationally disadvantaged non-public school children was a summer school remedial reading class. In the summer of 1971 approximately 112 private school children and 2,500 public school children participated. With this experience both the public school and private school officials admitted at trial that summer school was a poor substitute for regular day school classes.
The Kansas City public schools have set a $250 per pupil guideline for Title I assistance which under present funding would allow for approximately 8,050 participants. The largest share of the Title I appropriations (approximately 65 per cent) is spent on teachers and teacher aids. About twenty teachers and 130 to 150 teacher aids are presently employed in eighteen elementary and four secondary schools in Kansas City. On several occasions in recent years the non-public schools have requested teachers and teacher aids to come to the private school and teach special remedial classes during part of the rеgular school day. All such requests have been denied by the public school officials, and the private schools have not, as yet, requested any other assistance except equipment and materials. As a consequence the disparity in Kansas City between expenditures for private and public school children in Title I has been $50 as compared to $275. Recently the public school officials have given the non-public school children their “equitable” share of funds all in monies for equipment and materials.
The practice in Missouri as a whole in prior years has been to give comparable equipment, materials and supplies to eligible private school children, but to exclude any sharing whatsoever of personnel services. Most Title I public school programs in Missouri involve remedial reading, speech therapy and special mathematics classes, thus the largest
From the facts presented the trial court itself recognized that Missouri‘s “interpretation of Title I has resulted in an undoubtedly inequitable expenditure of Title I funds between educationally deprived children in public and nonpublic schools in some local school districts in the state.”
A few school districts in Missouri have attempted to remedy this disparity by providing, in addition to the projects conducted during regular school hours for deprived public school children, Title I programs in the public schools which are open to all educationally deprived children after regular school hours and in the summer. The opinion held by most educators was that these programs were not nearly as successful as the programs conducted during the regular school hours for public school children. The evaluation specialist of the Kansas City School District, Edmund Downey, and the principal of a parochial school in Kansas City, Sister Agnes Marie Hagen, testified that in their opinion, even with these attempts at giving assistance, disadvantaged non-public school children in Kansas City were not receiving comparable educational services under Title I.9
There are practical as well as legal considerations when assessing the qualitative scope of a “comparable” Title I program for deprived private school children. For example, in Kansas City the estimated 355 non-public school students who qualify for aid under Title I are scattered throughout five elementary and secondary schools. Obviously the same type of remedial help cannot be programmed for an extremely small number of needy children located in a private school as can be instituted in a public school where a large number of children may be reached. Furthermore, there are many Title I programs which can be utilized in public schools which would not be constitutionally permissible on private school premises. For example, using Title I funds to reduce the general pupil-teacher ratio is permissible in a public school within a low-income area but constitutionally impermissible in a similarly situated private school. However, this concern misses the Congressional mark since Title I programming contemplates for the private pupil only “special educational services and arrangements . . . in which such children can participate.”10 Thus, comparability in size, scope and opportunity cannot necessarily be measured in terms of total similarity. It is only in the area of “special services” where the program need be comparable, provided it is determined by the local educational agency that the needs of the children are similar. Furthermore, it is inaccurate to attempt to equate Title I programs on a “fair-sharing” basis which requires an equivalent pro-rata distribution of funds among public and private school students. Fair-sharing of funds is not the intent of Title I.11 When appraising what is equitable and comparable, the dollar amount allocated can serve only as an indicia of compliance or noncompliance. In fact, recent federal guidelines allow a greater amount of Title I funds to be spent on school areas with higher concentrations of children from low-income families in order to obtain the maximum effect.12
The grant of Title I funds is based solely upon the “need . . . determined” of the individual child. Consequently some children may require speech therapy or special instruction in the English language13 whereas others may demonstrate no particular need at all. This need factor may vary between educationally disadvantaged public school children as well as between deprived public and private school children.14
The analysis of whether the program within the private school is comparable to the public school program lends itself more to the definition of what is not comparable rather than what is.15 It is not a comparаble program where the need for remedial services of the educationally deprived private school pupil is at least equal to that of the educationally deprived public school student and the only service provided to the private school child is the furnishing of equipment. It is not a comparable program to provide only after-hour and summer remedial instruction on neutral sites which are open to the needy private school child while offering the same services during regular school hours for deprived public school pupils, especially when the partial expense for transportation must be borne by the private school child who comes from a low-income family.16 Of equal or greater significance is the fact that educational authorities believe such programs do not provide equivalent benefits nor do they successfully reach a significant number of the eligible students. Once the need of all qualified students is determined, the state or local educational agency must then show some reasonable justification, within the defined purposes of the regulations and the Act, for denying comparable services to eligible private school pupils. No showing has been made here.
The gross justification presented by the defendants for the dissimilarity of programs under Title I is that Missouri state law does not allow any shared or dual-time programs whereby the non-public school student can be brought into the public sсhool during regular school hours to receive specialized instruction. Furthermore, the defendants argue that Missouri constitutional law, as well as the Constitution of the United States, prohibit the use of public teachers on private school premises. The defendants urge additionally that Title I does not contemplate the assignment of Title I teachers to non-public schools during the regular school hours. It is, therefore, contended that the only means by which non-public school students can receive teacher services under Title I is through the operation of some after-hour and summer instructional training.
The trial court agreed with the defendants’ contention that the Act does not permit the assignment of public school teachers to non-public schools. Presumably the court‘s conclusion was drawn from the Senate House Reports which declare that the Act does not authorize funds for the payment of private school teachers. See S.Rep.No.146, 89th Cong., 1st Sess. 11 (1965); H.R.Rep.No.143, 89th Cong., 1st Sess. 7 (1965). However, plaintiffs make no claim that Title I funds should be paid to private school teachers nor do they argue that public school teachers should be assigned to non-public schools for the teaching of general secular classes. They readily concede that such an application of Title I funds would be a violation of the First Amendment. See generally Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Americans United for Separation of Church and State v. Oakey, 339 F.Supp. 545 (D.Vt. 1972); cf. Wolman v. Essex, 342 F.Supp. 399 (S.D. Ohio 1972), aff‘d, 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69 (1972); Johnson v. Sanders, 319 F.Supp. 421 (D.Conn.1970), aff‘d, 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971). And, of cоurse, Title I must be read as comporting with constitutional requirements. See generally Communications Ass‘n v. Douds, 339 U.S. 382, 407, 70 S.Ct. 674, 94 L.Ed. 925 (1950); United States v. C.I.O., 335 U.S. 106, 120-121, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948); cf. Singer Sewing Machine Company v. Brickell, 233 U.S. 304, 313, 34 S.Ct. 493, 58 L.Ed. 974 (1914); Port Construction Co. v. Government of the Virgin Islands, 359 F.2d 663 (3 Cir. 1966). The district court overlooks, however, that the Senate Report does consider the use of public school teachers in the private school for restricted purposes:
“It is anticipated, however, that public school teachers will be made available to other than public school facilities only to provide specialized services which contribute particularly to meeting the special educational needs of educationally deprived children (such as therapeutic, remedial or welfare services) and only where such specialized services are not normally provided by the nonpublic school.” S.Rep.No.146, 89th Cong., 1st Sess. 12 (1965), U.S.Code Cong. & Admin. News, p. 1457.
The Senate and House debates also demonstrate that this limited use of public school teachers for specialized services was foreseen and intended by the managers of the Bill. 111 Cong.Rec. 5746-5748, 5758, 5979, 7309 (1965). Therefore, we find the district court‘s interpretation of Title I as involving a broad proscription of public teacher services in the private schools to be in error.
We come then to defendants’ contention that this use of public school teachers in private schools is in violation of Missouri state law. In Special District v. Wheeler, 408 S.W.2d 60 (1966) (Judges Finch and Hyde dissenting on the dual-time holding), the Missouri Supreme Court spеcifically banned dual-time as a means of carrying out joint instructional programs for public and non-public school children.17 The court held that the Missouri compulsory attendance law requires each child to remain in his regularly assigned school for a minimum of six hours.18 In the Wheeler case the Missouri Supreme Court was also faced with the practice of public school teachers providing speech therapy for non-public school children on the private school premises. The Missouri court found this practice violated the Missouri Constitution by using public school funds for the education of private school pupils in derogation of
After the Wheeler decision the Missouri State Board of Education promulgated two regulations relating to programs to be administered by local agencies under Title I. They read as follows:
(a) “. . . Therefore, shared time or dual enrollment between public and nonpublic schools would not be in conformity with state law. Programs operated in the public schоol for all children after regular school hours, on Saturday, and during the summer after close of the regular school term would be in conformity with state law.”
(b) “Special educational services and arrangements, including broadened instructional offerings made available to children in private schools, shall be provided at public facilities. Public school personnel shall not be made available in private facilities. This does not prevent the inclusion in a project of special educational arrangements to provide educational radio and television to students at private schools.”
The state board has interpreted the proscription of public monies in the Missouri Constitution under the Wheeler decision and has thus concluded that Title I funds are also state public funds to be similarly proscribed. As a result of the board‘s regulations the local school districts have denied requests of non-public schools for the services of public school teachers in providing remedial training to their educationally disadvantaged children.
Although dual enrollment has been precluded under Missouri law, except for the state board‘s regulations, the crucial question of whether the Missouri Constitution prohibits the use of all funds, regardless of the source, for sending public school teachers into the private schools for specialized programs has not been decided. The Missouri Attorney General for one has publicly disagreed with the State Bоard of Education‘s interpretation of the law.20
Plaintiffs discount the applicability of state law by asserting that since Title I is a federal act and since there exists a conflict between federal and state law, the supremacy requirements dictate that federal law controls, citing Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); Brown & Bartlett v. United States, 330 F.2d 692 (6 Cir. 1964); Matcovich v. Anglim, 134 F.2d 834 (9 Cir. 1943). This approach, however, substantially ignores the legislative history of Title I which establishes that
Although state law is to be accommodated, the issue of whether Title I funds are state monies or federal funds must necessarily be decided by federal law. Cf. United States v. 93.970 Acres, 360 U.S. 328, 332-333, 79 S.Ct. 1193, 3 L.Ed.2d 1275 (1959), and cases cited therein; Enochs v. Smith, 359 F.2d 924, 926 (5 Cir. 1966). Directly involved here is the interpretation of the funding process under a federal act. The Act itself makes it readily apparent that Title I appropriations are a federal grant made in trust to local school agencies within a state for the direct benefit of the educationally disadvantaged child.
This reasoning is not in conflict with the proposition that state law and policy must be accommodated under the administration of Title I. A state could conceivably pass a law that would prohibit the use of any Title I funds in a private school. Assuming such a law could overcome equal protection arguments,25 the net effect would be that the state could not comply with the Title I requirement that comparable services be administered to educationally disadvantaged non-public school children. Under those circumstances, the state would not be entitled to a Title I grant and would have to make the “political” decision of whether to repeal the law or deрrive all its educationally disadvantaged children of the economic benefits of the Act. Cf. Rosado v. Wyman, 397 U.S. 397, 420-423, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).26
We conclude that although the administration of Title I must accommodate state law, Title I funds are federal funds with which state and local educational agencies cannot lawfully provide services for eligible public school children and at the same time deny comparable programs to eligible private school children by simply commingling such funds with proscribed state “public funds.” More apropos to our discussion here is the provision within the Missouri Constitution which reads:
“Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.”
Mo.Const., art. III, § 38(a) . (Emphasis ours.)
Thus, we find that when the need of educationally disadvantaged children requires it, Title I authorizes special teaching services, as contemplated within the Act and regulations, to be furnished by the public agency on private as well as public school premises. In other words, we think it clear that the Act demands that if such special services are furnished public school children, then comparable programs, if needed, must be provided the disadvantaged private school child.
This then brings us to the defendants’ final contention. They urge—all else failing—that public teacher service on private school premises would be unconstitutional under the First Amendment. The defendants rely on Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which held the direct subsidization of private school teachers in Pennsylvania and Rhode Island unconstitutional. Perhaps more closely related to this objection are Wolman v. Essex, 342 F.Supp. 399 (S.D.Ohio 1972), aff‘d, 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69 (1972); Americans United for Separation of Church & State v. Oakey, 339 F.Supp. 545 (D.Vt.1972); and Johnson v. Sanders, 319 F.Supp. 421 (D.Conn.1970), aff‘d, 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971). Although Oakey and Sanders would seemingly prohibit the use of public school teachers on private premises to teach general secular subjects, they are not directly controlling as to the suggested teacher service programs under Title I. As we have indicated, Title I contemplates public teacher services on private premises only for “specialized services which contribute particularly to meeting the special educational needs of educationally deprived children (such as therapeutic, remedial or welfare services) and only where such specialized services are not normally provided by the nonpublic school.”27
Although we find these cases not directly controlling, we determine that it would be improper for us to pass on the constitutionality of an abstract program of remedial teaching services which is not properly before us. In doing so, we appreciate the constitutional question remains, but as a reviewing court, we must refrain from passing upon important constitutional questions on an abstract or hypothetical basis. Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 174 (1969); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461-462, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945); Housing Authority of the City of Omaha v. U.S. Housing Authority, 468 F.2d 1, 10 (8 Cir. 1972), cert. denied 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973). This is what we would be doing if we decided this issue now.
We further observe that no particulаr program, curriculum or service is mandatory under the Act. S.Rep. No. 146, 89th Cong., 1st Sess. 11 (1965); 111 Cong.Rec. 7298 (1965) (remarks by Senator Morse). A local educational agency may request Title I funds for a variety of uses,28 and none of these specific remedial programs are now before us. For now we can only assume that the United States Commissioner of Education will approve funds for only those local educational agency programs which comport with Title I and the Constitution of the United States. When approval is given or withheld on a specific plan, only then should a court survey the precise program as falling within or without First Amendment boundaries.29
In conclusion, we find that plaintiffs are entitled to equitable relief in requiring the defendants to comply with Title I through allocation of funds to educationally disadvantaged non-public students. The fact that local agencies have failed to request funds for non-public school children or that private schools have not stated their needs is not justification for denial of an equitable and comparable program for eligible private school children. If the state is to participate in Title I programs, the state has the responsibility to seek out the disadvantaged child and discover his needs. 45 C.F.R. § 116.19(b) (1972).
The record here demonstrates that the basic problem in administering Title I in Missouri has been the tenor of non-cooperation by both public and non-public officials. Title I is premised and can work only upon a firm foundation of cooperation by both public and non-public officials. The regulations require that
The case is remanded to the district court with directions to enjoin the defendants from further violation of Title I of ESEA, and it is further ordered that the court retain continuing jurisdiction of the litigation for the purpose of requiring, within reasonable time limits, the imposition and application of guidelines which will comport with Title I and its regulations.31 Such guidelines must provide the lawful means and machinery for effectively assuring educationally disadvantaged non-public school children in Missouri participation in a meaningful program as contemplated within the Act which is comparable in size, scope and opportunity to that provided eligible public school children. Such guidelines shall be incorporated into an aрpropriate injunctive decree by the district court.32
Reversed and remanded.
A COMMUNITY CASE STUDY OF NON-PUBLIC SCHOOL CHILDREN AND TITLE I IN PITTSBURGH, PENNSYLVANIA *
“Pittsburgh is a heavily industrialized city of 650,000 persons. Figures provided by the school system show 122,000 children in the city, 76,000 enrolled in public schools (62%) and 46,000 in non-public schools (38%). Of these, 17,500 live in Title I project areas; 13,000 are public school children (74%) and 4,500 are private school children (26%). There are no private schools, other than Catholic schools, in the city with children eligible for Title I funds.
“Title I expenditures for City D have been as follows:
| 1966-67 | School year | $2,509,000 |
| 1967 | Summer | 21,000 |
| 1967-68 | School year | 3,163,000 |
| 1968 | Summer | 53,000 |
“A partial listing of programs for the 1966-67 school year are as follows:
| Instructional Activity | Number of Public-School Participants | Number of Nonpublic School Participants |
|---|---|---|
| Art | 1459 | 0 |
| English-Reading | 655 | 563 |
| English-Speech | 377 | 712 |
| English-Second Language | 866 | 481 |
| Music | 5258 | 531 |
| Recreation | 118 | 0 |
| Service Activity | ||
|---|---|---|
| Guidance-Counseling | 2049 | 1031 |
| Social Work | 348 | 1086 |
Planning and Evaluation in Pittsburgh
“Even before Title I allocations were announced for the first year of the program‘s operation, public school officials were meeting with Catholic school leaders to plan joint programs. The leaders of two systems were not strangers to one another; Pittsburgh has had a long history of shared-time programs. For years parochial school students had traveled to nearby public schools to participate in home economics classes and courses in vocational education. The plan agreed upon for Title I programs was based on a mutual understanding of the needs of disadvantaged children in the two school systems.
“Title I project areas were selected on a school-by-school basis in the public system using census and AFDC information. Once an individual public school was selected children in the parochial school in the same neighborhood also qualified, so long as Catholic officials verified the assumption that disаdvantaged children attended the school in
“Once the project areas were agreed upon, programs were established with services provided equally to the children in the paired public and parochial schools. Approximately 30 percent of the disadvantaged students in Pittsburgh were enrolled in parochial schools and about 30 percent of the Title I funds were expended on these students. In practical terms this has meant that some remedial teachers spend part of their day in the nonpublic school and part in the public school. Few programs mix students from the two systems.
“In the Communication Skills program, for example, where intensive reading preparation is given, half of the teachers spend half of their time in parochial schools. Thus 25 percent of the total program takes place with nonpublic children. This program is concentrated in 11 public schools, but provides services to children in 30 Catholic schools. In other words, 75 percent of the teachers and equipment are located in a fеw public schools while 25 percent serve children in numerous parochial schools. This arrangement was pressed by Catholic school officials; those public officials in charge of the program feel that students benefit most from a concentration of services. The U.S. Office of Education, in its guidelines, is explicit in urging such concentration.
“Certain programs, as seen in the listing above, serve only students in public schools, while others serve both in varying proportions. Funds for reducing class size, for example, are not expended for children in parochial schools. Some substitution takes place, however, so that more than 30 percent of the participants in some programs are nonpublic school children.
“According to both Catholic and public schoolmen, evaluation is an on-going process. The deputy superintendent of the Diocese schools and the associate director of compensatory education for the Pittsburgh school system, call one another whenever necessary to discuss Title I programs. Decisions on the retention or expansion for the various components of Title I are discussed at regular joint meetings, occasionally with the public school superintendent in attendance. In one example of what transpires at such gatherings, it was recently proposed by the public school administration that a program involving mobile speech clinics be ended. Parochial officials saw this as undesirable for their children since it would have ended speech therapy in their schools. A compromise finally was reached where one laboratory would be kept to serve nonpublic pupils.
“In part, this joint evaluation is encouraged by a State Department of Education regulation requiring the signature of nonpublic officials on the state evaluation form. This is to insure that consultation with private school leaders has, in fact, taken place. This is a recent regulation, however, and active cooperation was commonplace in Pittsburgh before its enactment.
“Current planning in Pittsburgh includes the establishment of a position within the public school‘s office of compensatory education to represent the nonpublic schools on a half-time basis. Such a liaison would assist in planning and evaluation and would assure full participation wherever possible. Funds do not presently provide for such an individual, however, and it appears that this plan will not be activated in the immediate future because of the curtailment of Title I funds.
“Both public and nonpublic school officials take pride in the harmonious relationship between the two systems. A long history of such cooperation is present, enhanced by a state constitution which has long permitted shared-time programs. Title I is being administered in keeping with this spirit to the satisfaction of all the participants involved.
“Programs in the 1967-68 school year, for which evaluаtions are not ready at the time of this writing, showed that nonpublic participation was occurring at approximately 30 percent, though probably at a slightly reduced level (one estimate was 27.3% total allocation). Individual program descriptions for 1967-68 demonstrated that disadvantaged nonpublic school children have been considered in the planning of each Title I program.
“There is less inter-mingling of public and nonpublic school children students in Title I programs than might be considered desirable by some observers, including some of the original sponsors of Title I legislation. In part this is the result of the convenience and the economy in shifting teaching personnel from school to school, rather than students. Distance is sometimes a factor, as walking is not always possible. Also, there are a number of problems associated with moving a large body of students through crowded urban neighborhoods. Such an effort, however, would lead to a sharing of programs between Pittsburgh public schools, many with large non-white populations, and Catholic schools, which tend to be filled with mostly white students.
“The nature of the Catholic school organization fosters cooperation. The Catholic Schools Office is highly centralized and has full support of the Bishop of Pittsburgh. The Schools Office has authority to speak for all parochial schools in the city and the Diocese. Thus, the public school officials have only one person with whom they must communicate. This is a tremendous advantage and has contributed greatly to the public/nonpublic cooperation. It would be much more difficult to establish such rapport in cities with autonomous Catholic schools.
“On the whole, the situation in Pittsburgh seems to follow closely the letter and spirit of Title I with regard to the provision of services to disadvantaged nonpublic school children. Nonpublic school officials contribute to both planning and evaluation. Aid is given to nonpublic school children but the nature of that aid is such that careful control seems to be exercised by the public school officials. At the same time, because participation in program formulation is invited and because of frequent intercommunication, the non-public officials are in a position to both assist in, and observe, the operation of Title I. Such a situation would seem to provide a sound basis for informed judgment on the part of public officials with whom responsibility for Title I programs ultimately rests. The real benefactor would seem to be the disadvantaged child in Pittsburgh who is receiving aid regardless of the school he attends, as is the intent of Title I.”
STEPHENSON, Circuit Judge (dissenting).
I respectfully dissent. Notwithstanding the view expressed in the majority opinion, Title I of the Elementary and Secondary School Act of 1965 clearly only permits and does not mandate the assignment of public school teachers to private schools during regular school hours. That no such congressional purpose ever prevailed is evidencеd by the Act‘s legislative history. The bill‘s floor manager in the House initially expressed the view that a public school teacher could not be assigned to a private school under the provisions of Title I.1
I therefore find myself in complete agreement with Judge Collinson‘s conclusion that:
“Title I clearly does not mandate the assignment of teachers paid by Title I funds to nonpublic schools. The legislative history of the Act demonstrates that such an intention was completely disavowed by every proponent of the bill.”
I would therefore affirm the trial court‘s denial of injunctive relief.
If, as the majority holds, Title I mandates the assignment of public school teachers to private schools, I fail to see how the constitutional issue presented can be avoided. I share in the District Judge‘s grave concern that Title I, under suсh circumstances, could not withstand the constitutional challenge. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Americans United for Separation of Church and State v. Oakey, 339 F.Supp. 545 (D.Vt.1972) and Johnson v. Sanders, 319 F.Supp. 421 (D.Conn.1970), aff‘d 403 U.S. 955, 91 S.Ct. 2292, 29 L.Ed.2d 865 (1971). The “entanglements” fostered by Title I, as construed by the majority, appear quite indistinguishable from the excessive entanglements proscribed by Lemon. See generally, 22 Rutgers L.Rev., supra.
I join in the majority‘s concern with respect to the failure of the parties to negotiate a lawful program pursuant to the Act. Unfortunately, the victims of this lack of cooperation are the intended beneficiaries of Title I, the educationally deprived children.