Request By:
Mr. James O. Lykins
Director of Special Education
Bellevue Independent Schools
215 Center Street
Bellevue, Kentucky 41073
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you stated that you had received requests from St. Michael Catholic Elementary School, located in Bellevue, Kentucky, to provide individualized testing or evaluations for their students that might qualify for a special education placement. You asked this office to address the following two questions:
1. Is it the Bellevue Independent School District's responsibility to provide individual testing and evaluations to students that reside within the Bellevue Independent School District and who are enrolled in a private religious school with funds provided by the Education of the Handicapped Act? (20 USC 1400 et seq .)
2. If the answer to question number one is yes, then is it legal to send personnel employed by the Bellevue Independent School District into a private religious school to administer the tests and evaluations?
The answer to your first question is affirmative. Note that 20 USC 1413, of the Education of the Handicapped Act, requires that each state plan provide for utilization of federal funds in a manner consistent with the goal of providing appropriate free public education for all handicapped children (see (a) (2)), including handicapped children in private schools. (See (a)(4)(A) and (B)). Section 1414 requires that local educational agencies seeking funding under 1411(d) of Title 20 must provide assurance that all children residing within the district who are handicapped and in need of special education will be identified and evaluated; moreover, the plan is to include a goal to provide full educational opportunities to all handicapped children. (See § 1414(1)(A)-(c)). Therefore, it is the responsibility of the Bellevue Independent School District under the Education of the Handicapped Act to provide individual testing and evaluations to students residing in the district and who are enrolled in private religious schools. For more information on federal and state requirements, see Attachment A.
Secondly, you ask whether it would be legal to send public school personnel into a private religious school to administer the tests and evaluations. The courts have addressed whether evaluations and remedial services may be provided by public schools on or near private school grounds, analyzing whether such services would violate the Establishment Clause of the First Amendment of the United States Constitution.
In the First Amendment to the Constitution of the United States, the founders set forth the following standard with regard to church and state: "Congress shall make no law respecting an establishment of religion , or prohibiting the free exercise thereof . . . ." (emphasis added.) The language emphasized above is known as the "Establishment Clause," and has been interpreted by the United States Supreme Court to mean,
that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs.
County of Allegheny v. The American Civil Liberties Union, U.S., 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989).
Three tests have been developed by the Supreme Court in determining whether a governmental practice violates the Establishment Clause:
A statute or practice . . . must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.
County of Allegheny, supra, citing
Lemon v. Kurtzman, 403 U.S. 602 at 612-613, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).
The United States Supreme Court has examined state statutes and practices of providing educational services to children in nonpublic schools, including evaluations for special education services in
Wolman v. Walter, 433 U.S. 229, 97 S. Ct. 2593, 53 L. Ed. 2d 714 (1977). In Ohio, diagnostic services for speech and hearing and psychological evaluations were authorized by statute to be provided to pupils in the nonpublic school attended by the pupils. Treatment of any identified problem would take place off the nonpublic school premises. The Court found no basis for treating diagnostic speech and hearing services differently from diagnostic psychological services and concluded that the statutory provision was constitutional. Moreover, providing various kinds of remedial and therapeutic services to students of parochial schools at neutral sites, off the premises of the nonpublic schools, was constitutional and neither advanced religion nor caused excessive entanglement. Wolman, supra.
The Court distinguished this conclusion from that of
Meek v. Pittenger, 421 U.S. 349, 95 S. Ct. 1753, 44 L. Ed. 2d 217 (1975), in which the Court held unconstitutional a statute authorizing auxiliary services, including teaching, testing, speech and hearing services on nonpublic school premises. The diagnostic services were noted to fall under permissible general welfare services, but invalidated as the provision could not be severed from unconstitutional sections of the statute. For more information on federal and state standards regarding the provision of instruction on grounds of private schools, see Attachment B.
In conclusion, in Kentucky, where there is no statute expressly authorizing evaluations to be performed on the premises of religious schools by public school personnel, it is our opinion that evaluations of nonpublic students should take place off the premises of the parochial school. In addition, we recommend that you consult with the Department of Education on procedures to follow to avoid any problems of violating the First Amendment of the United States Constitution. The Department of Education works very closely with school boards to assist them in providing services while avoiding the constitutional pitfalls.
ATTACHMENT A
Federal regulation 34 CFR 300.451 provides that state educational agencies and local educational agencies shall make provision for participation of private school handicapped children in the state program. In particular, 34 CFR 300.452 states:
Each local educational agency shall provide special education and related services designated to meet the needs of private school handicapped children residing in the jurisdiction of the agency.
KRS 157.224, "Statewide plan for special education programs," sets forth the commitment of the Commonwealth of Kentucky to provide a comprehensive educational program for children of school age with exceptional needs. The program for the Commonwealth is directed by the Department of Education. Subsection (2) provides that all county and independent school districts shall operate special education programs to the extent required by the state plan, approved by the State Board of Education. Any district that fails to do so may be ineligible for state funds.
KRS 157.200 to KRS 157.290 set statutory standards for special education programs in local school districts. KRS 156.010, KRS 156.035 and KRS 157.224 set forth responsibilities of the Department of Education and the State Board on development and approval of a state plan. This plan is required for receipt of federal funds for special education programs. The Department of Education promulgated regulations on the annual program plan for compliance with the Federal Education of the Handicapped Act. 707 KAR 1:003 adopts the current state plan for 1988-1990 for administration of Part B of the Education of the Handicapped Act, in order to be eligible for federal funds under P.L. 93-380 as amended by P.L. 94-142. That plan is incorporated by reference and is available at the Office of Education for Exceptional Children.
Under KRS 157.230, "[s]chool boards of any school district subject to the provisions of KRS 157.200 to KRS 157.280, shall establish and maintain special educational programs for exceptional children who are residents of their school district, or contract for programs as may be authorized by KRS 157.280."
ATTACHMENT B
The United States Supreme Court has ruled that New York City's prrogram that used Chapter 1 funds to meet special education needs of children by paying salaries of public employees who taught remedial courses in classrooms located in the parochial schools violated the
Establishment Clause. Aquilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 87 L. Ed. 2d 190 (1985).
In Aquilar, supra, an attempt was made to distinguish the New York City program from one in Grand Rapids that the Court struck down, on the basis that New York City had adopted a system for monitoring the religious content of the publicly funded Title I classes in the schools. However, the Court held that this, inevitably, would result in excessive entanglement of church and state where the aid was provided in a sectarian environment. Assistance being provided in the form of teachers would require ongoing inspection to ensure the absence of a religious message. This would make it impossible to prevent the intrusion of either church or state into the precinct of the other and to maintain the necessary neutrality.
Recently, in Kentucky, a taxpayer, challenged the use of federal funds under Chapter 1 1 for a program to meet special education needs of children. Barnes v. Cavazos , No. C80-0501-L(A), Slip Op. (W.D. Ky., Feb. 21, 1990). See Attachment A. In particular, the plaintiff alleged that the program's authorization of federal funds for assignment of public school teachers to offer educational instruction in a religiously affiliated school would violate the Establishment clause of the United States Constitutional Amendment 1, even though instruction was offered in mobile vans located on public property near the private schools. While the United States District Court for the Western District of Kentucky held that the use of mobile vans does not violate the Establishment Clause, the decision is on appeal.
Footnotes
Footnotes
1 Chapter 1 was formerly known as Title I, and effective April 28, 1988, called Division I.