Education

Court: No Church-State Barrier to Title I Services

July 09, 1997 7 min read

Following are excerpts from the U.S. Supreme Court’s majority and dissenting opinions in Agostini v. Felton.

JUSTICE O’CONNOR delivered the opinion of the court.

In Aguilar v. Felton (1985), this court held that the establishment clause of the First Amendment barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. On remand, the District Court for the Eastern District of New York entered a permanent injunction reflecting our ruling. Twelve years later, petitioners--the parties bound by that injunction--seek relief from its operation. Petitioners maintain that Aguilar cannot be squared with our intervening establishment clause jurisprudence and ask that we explicitly recognize what our more recent cases already dictate: Aguilar is no longer good law. We agree with petitioners that Aguilar is not consistent with our subsequent establishment clause decisions and further conclude that, on the facts presented here, petitioners are entitled ... to relief from the operation of the district court’s prospective injunction. ...

In order to evaluate whether Aguilar has been eroded by our subsequent establishment clause cases, it is necessary to understand the rationale upon which Aguilar, as well as its companion case, School District of Grand Rapids v. Ball (1985), rested.

In Ball, the court evaluated two programs implemented by the School District of Grand Rapids, Mich. The district’s Shared Time program, the one most analogous to Title I, provided remedial and “enrichment” classes, at public expense, to students attending nonpublic schools. The classes were taught during regular school hours by publicly employed teachers, using materials purchased with public funds, on the premises of nonpublic schools. The Shared Time courses were in subjects designed to supplement the “core curriculum” of the nonpublic schools. ...

The court found that the program violated the establishment clause’s prohibition against “government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith” ... .

Distilled to essentials, the court’s conclusion that the Shared Time program in Ball had the impermissible effect of advancing religion rested on three assumptions: (i) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school premises creates a symbolic union between church and state; and (iii) any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking. Additionally, in Aguilar there was a fourth assumption: that New York City’s Title I program necessitated an excessive government entanglement with religion because public employees who teach on the premises of religious schools must be closely monitored to ensure that they do not inculcate religion.

Our more recent cases have undermined the assumptions upon which Ball and Aguilar relied. ...

First, we have abandoned the presumption erected in Meek v. Pittenger (1975) and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion. In Zobrest v. Catalina Foothills School District (1993), we examined whether the [Individuals with Disabilities Education Act] was constitutional as applied to a deaf student who sought to bring his state-employed sign language interpreter with him to his Roman Catholic high school. We held that this was permissible, expressly disavowing the notion that “the establishment clause laid down an absolute bar to the placing of a public employee in a sectarian school.” ...

Second, we have departed from the rule relied on in Ball that all government aid that directly aids the educational function of religious schools is invalid. In Witters v. Washington Department of Services for the Blind (1986), we held that the establishment clause did not bar a state from issuing a vocational tuition grant to a blind person who wished to use the grant to attend a Christian college and become a pastor, missionary, or youth director. Even though the grant recipient clearly would use the money to obtain religious education, we observed that the tuition grants were “made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited.”...

Zobrest and Witters make clear that, under current law, the Shared Time program in Ball and New York City’s Title I program in Aguilar will not, as a matter of law, be deemed to have the effect of advancing religion through indoctrination. Indeed, each of the premises upon which we relied in Ball to reach a contrary conclusion is no longer valid. First, there is no reason to presume that, simply because she enters a parochial school classroom, a full-time public employee such as a Title I teacher will depart from her assigned duties and instructions and embark on religious indoctrination, any more than there was a reason in Zobrest to think an interpreter would inculcate religion by altering her translation of classroom lectures. Certainly, no evidence has ever shown that any New York City Title I instructor teaching on parochial school premises attempted to inculcate religion in students. ...

Nor under current law can we conclude that a program placing full-time public employees on parochial campuses to provide Title I instruction would impermissibly finance religious indoctrination. ... Title I services are by law supplemental to the regular curricula. These services do not, therefore, relieve sectarian schools of costs they otherwise would have borne in educating their students. ...

We turn now to Aguilar‘s conclusion that New York City’s Title I program resulted in an excessive entanglement between church and state. ...

In Aguilar, the court presumed that full-time public employees on parochial school grounds would be tempted to inculcate religion, despite the ethical standards they were required to uphold. Because of this risk pervasive monitoring would be required. But after Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment. Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required. There is no suggestion in the record before us that unannounced monthly visits of public supervisors are insufficient to prevent or to detect inculcation of religion by public employees. ...

To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the establishment clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here. ...

As a final matter, we see no reason to wait for a better vehicle in which to evaluate the impact of subsequent cases on Aguilar‘s continued vitality . ... Indeed, under these circumstances, it would be particularly inequitable for us to bide our time waiting for another case to arise while the city of New York labors under a continuing injunction forcing it to spend millions of dollars on mobile instructional units and leased sites when it could instead be spending that money to give economically disadvantaged children a better chance at success in life by means of a program that is perfectly consistent with the establishment clause.

For these reasons, we reverse the judgment of the court of appeals and remand to the district court with instructions to vacate its Sept. 26, 1985, order.

A version of this article appeared in the July 09, 1997 edition of Education Week