Charles H. Wilson, Esq., Williams & Connolly, Washington, D.C.

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ESEA Title I Litigation - Update

St. John's University School of Law

The Catholic Lawyer Volume 28 Number 2 Volume 28, Spring 1983, Number 2 Article 18 September 2017 ESEA Title I Litigation - Update Charles H. Wilson, Esq., Williams & Connolly, Washington, D.C. Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl  Part of the Education Law Commons, Legislation Commons, and the Litigation Commons Recommended Citation Charles H. Wilson, Esq., Williams & Connolly, Washington, D.C. (1983) "ESEA Title I Litigation - Update," The Catholic Lawyer: Vol. 28 : No. 2 , Article 18. Available at: https://scholarship.law.stjohns.edu/tcl/vol28/iss2/18 This Diocesan Attorneys' Papers is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ESEA TITLE ILITIGATION-UPDATECHARLES H. WILSON, ESQUIRESince the PEARL case' was filed in 1976, a cloud has hovered overTitle I of the Elementary and Secondary Education Act (ESEA). Al-though the progress of a number of pending title I cases has been slow,there should be some elucidation in the very near future. Presently, theterm "title I" is somewhat of a misnomer. In 1981, Title I of ESEA wasre-enacted as Chapter One of the Education Consolidation and Improve-ment Act of 1981 which in turn became part of Subtitle D of Title V ofthe Omnibus Budget Reconciliation Act of 1981.2 That is a real mouthfulif you are trying to find the shorthand reference. For purposes of thispresentation, the program will continue to be referred to as the title Iprogram.This presentation will consist of a brief summary of the status of thepending title I cases and a brief prognosis of where they may be heading.At last year's meeting five cases were listed and discussed." Those casesagain will serve as the foundation for the title I discussion. The first case,which was pending in San Francisco, is no longer in existence. The plain-tiff, United Americans for Public Schools, took a voluntary dismissal afterthe Justice Department filed against the plaintiffs, both the organizationand the individual taxpayers, some very onerous discovery requests. It isbelieved, however, that the plaintiff will watch carefully the developmentof the other cases and may refile at a later date.The second case, Barnes v. Bell, is pending in Louisville, Kentucky.That case attacks directly Louisville's title I program for nonpublic schoolstudents, but is essentially on hold at this time because lead counsel inthe case, Lee Boothby of Americans United, is somewhat preoccupiedwith his role in the Wamble case. Until the Wamble case is tried andNational Coalition for Pub. Educ. & Religious Liberty v. Harris, 489 F. Supp. 1248(S.D.N.Y.), appeal dismissed sub nom. National Coalition for Pub. Educ. & Religious Lib-erty v. Hufstedler, 449 U.S. 808 (1980) [hereinafter cited as PEARL].I Act of Aug. 13, 1981, Pub. L. No. 97-35, § 551, 95 Stat. 463 (codified in various sections of20 U.S.C.).S See Wilson, ESEA Title I Litigation-A National View, 27 CATH. LAW. 231, 233-38(1982).28 CATHOLIC LAWYER, SPRING 1983resolved, it is doubtful that this case will move forward at all.The next case, Felton v. Bell, is pending in the Eastern District ofNew York. At this time last year the stay entered in the case was still ineffect." A stay had issued soon after the complaint was filed pending theoutcome of PEARL and as of last year's meeting, more than -a year afterthe district court decision in PEARL, no action had been taken by theplaintiffs to lift the stay.' It was suggested to the Justice Department thataffirmative action be taken to have the stay dissolved, followed by thefiling of a motion for summary judgment based upon the PEARL record.It was clear from the complaint in Felton that the plaintiffs were attack-ing the New York City title I program, the very program that was at issuein PEARL. The federal bureauvracy dragged its heels on that strategy,and so Leo Pfeffer moved to dissolve the stay and then entered into astipulation that the case be submitted on the PEARL record. The stipula-tion was agreed to and cross-motions for summary judgment were filed.There is some indication that the judge will simply decide the case on thepapers.The Felton case appears to be ideal because it resurrects the PEARLrecord, which is perhaps the best record that will ever be developed in atitle I case, and presents the opportunity for expeditious consideration.If the Supreme Court will hear a title I case, it will most likely be Feltonwhich has and will have the best record.That case, however, will also be a test of what has been worked outwith the Justice Department as basic strategy in title I, and that strategyis to keep the title I issue away from the Supreme Court. The SupremeCourt probably will not want to decide the constitutionality of title I, andthat result is most likely if in the case before the Court-apparently Fel-ton-the court of appeals held title I constitutional as applied to nonpub-lic school students. The reason is that the only recourse to the SupremeCourt would be a petition for certiorari by Leo Pfeffer; the Court coulddeny certiorari with no precedential impact. This action, hopefully, willsignal that the Court, rather than deciding the broad constitutional impli-cations of title I, will leave the determination of particular programs tothe lower courts. If this strategy backfires and either the district court orthe Second Circuit finds title I as applied to nonpublic school children inNew York City unconstitutional, then the right to take title I up to theSupreme Court by appeal still exists, and the Court will be forced toreach the merits of the issue.The fourth case, Stark v. Bell, is pending in Minnesota. The Starkcase is unique in one respect. In PEARL and in Felton, there is only oneSee id. at 234.5Id.' Id. at 235-36.ESEA TITLE Ientity's title I program at issue. In the San Francisco case, it was unclearwhether it would be just the San Francisco program under attack orothers. Of course, in Missouri, in the Wamble case, the issue is presentedin the context of a title I bypass. In Minnesota, the plaintiff has indicatedthat he intends to challenge at least ten different public school districttitle I programs. In the final analysis, there could be somewhere betweenten and sixteen mini-trials, because it will be argued that each programhas to be evaluated on its own merits. The trial of the case, needless tosay, will be rather cumbersome. Fortunately, for the most part the plain-tiff is focusing on small school districts, with the exception of Minneapo-lis and St. Paul, so the burden of the trial may not be as great as it couldotherwise be.Whether the Minnesota case will have any long-term significance isdoubtful at this time because the Wamble case probably will reach theEighth Circuit first. The Wamble case indeed is the most significant ofthe title I cases. It was filed in April of 1977 and remains untried. Itwould be nice if the case somehow disappeared, but unfortunately it isinexorably moving toward trial. Last year at this time, the case was hope-lessly bogged down over negotiations for stipulations of fact.7 It seemedthat the case would be bogged down indefinitely.The case does, however, carry a 1977 filing date, and three newjudges were appointed to the Western District of Missouri in September1981. Judge Wright, who then had the case, unloaded it to Judge Stevens,one of the new judges. When Judge Stevens saw the 1977 date, and wasfacing a rather empty docket, he stated at the first status conference inNovember that he intended to put the case on the fast track afid indeedhe has.In terms of title I litigation, this trial will be unprecedented in scope.The plaintiff wants to offer twenty-six deposition transcripts and the tes-timony of twenty-five live witnesses. There will be seventeen additionalwitnesses on the defendant's side. Also, a large number of documentshave been designated by the plaintiff as trial exhibits. The plaintiffclaims, in no uncertain terms, that he will prove that the Catholic Churchis hierarchical.One of the real difficulties in the case is that Judge Stevens, actingon a motion for a partial judgment on the pleadings based on a standingissue, ruled that the plaintiff has standing not only to challenge the con-stitutionality of the title I bypass as it is now being operated in Missouri,but also to contest whether the United States Commissioner of Educationmade the right decision in implementing the bypass. The ruling that theplaintiff can challenge the decision to invoke the bypass makes it almost7 See id. at 233-34.28 CATHOLIC LAWYER, SPRING 1983essential to relitigate Barrera v. Wheeler.8 This is due to the fact that theCommissioner based his decision to bypass in Missouri on a factual find-ing that nonpublic schools in that state were not receiving services com-parable to the services provided to public school students. That was thevery issue in Wheeler. It is now necessary to develop evidence, presentedin Wheeler, that in the 1970-1971 school year, the Kansas City publicschool district spent an average of $240 per public school child but anaverage of only $10 for nonpublic schoolchildren.The problems in the Wamble case, from the beginning, have beenenormous. Coping with the great number of exhibits and many thousandsof pages of deposition testimony, in addition to the various objectionsthat have accompanied such discovery, has been no easy task. Some ofthe comments made by Judge Stevens at various sessions with him makethe outcome of the case quite unpredictable.That in brief is the status of title I litigation. It is fair to predict thatby the fall of 1983, there will be, at least, district court decisions in theFelton and Wamble cases, and possibly a decision in Minnesota. Thosecases will then be progressing up the appellate ladder to some sort ofconfrontation in the Supreme Court.a 475 F.2d 1338, 1355-56 (8th Cir. 1973) (holding that title I programs for Kansas City paro-chial schools were not comparable to those in public schools and remanding for the estab-lishment of guidelines for the proper implementation of title I programs), affd, 417 U.S. 402(1974), modified, 422 U.S. 1004 (1975).

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ESEA Title I Litigation - Update

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