The Church, the State, and the EHA: Educating the Handicapped in Light of the Establishment Clause

24 Pages Posted: 19 Dec 2010  

Thomas F. Guernsey

Thomas Jefferson School of Law; Albany Law School

M. Grey Sweeney

affiliation not provided to SSRN

Date Written: 1989

Abstract

While the Supreme Court has considered many types of state plans to aid children in parochial schools, it has never specifically address the constitutionality of state aid to handicapped children under the EHA. However, Aguilar v. Felton provides some indication of the types of services which may be permissible under the EHA. The decision also castes doubt upon the constitutionality of some on-site programs. The Department of Education, however, has consistently taken the position that Felton has no impact on the implementation of programs under the EHA, stating that it would “be presumptuous for educational authorities to extend the Felton decision beyond the circumstances clearly addressed by that case.” Some state agencies have disallowed on-site programs under the EHA. Such caution on the part of state and local school officials may be well advised.

Suggested Citation

Guernsey, Thomas F. and Sweeney, M. Grey, The Church, the State, and the EHA: Educating the Handicapped in Light of the Establishment Clause (1989). Marquette Law Review, Vol. 73, 1989. Available at SSRN: https://ssrn.com/abstract=1727424

Thomas F. Guernsey (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

M. Grey Sweeney

affiliation not provided to SSRN ( email )

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