High Court Reverses Ban on Public Aid to Private Schools

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Overturning a 12-year-old precedent, a deeply divided U.S. Supreme Court ruled this week that the U.S. Constitution does not prohibit school districts from sending teachers into religious schools to provide remedial services to needy students.

The 5-4 ruling marked a substantial shift in the direction of permitting more government aid to religion and sparked immediate debate about whether the high court would be receptive to private-school-voucher plans that include church-affiliated schools.

In the near future, the ruling means that the estimated 173,000 children in religious schools nationwide who participate in the federal Title I remedial education program will no longer have to travel to mobile vans, public schools, or other neutral sites to receive services. ("Case Limiting Title I Gets New Day in Court," April 9, 1997.)

"No longer will children have to leave their school buildings in order to get the assistance they need," President Clinton said in a written statement praising the court's June 23 ruling in Agostini v. Felton (Case No. 96-552).

The Clinton administration supported the effort of the New York City school system to reverse the 1985 Supreme Court ruling that barred public school teachers from providing remedial education on the premises of religious schools.

Secretary of Education Richard W. Riley announced that the Department of Education would issue guidance to school districts in the near future about implementing the decision.

"Hundreds of millions of dollars have been spent in the past 12 years for mobile vans and other costs," he said in a statement. "We can now work to direct this money to the classroom."

Three Criteria

In its decision 12 years ago in the case then known as Aguilar v. Felton, the high court ruled 5-4 that the practice of sending public school teachers into religious schools violated the First Amendment's ban on government establishment of religion.

In the majority opinion this week in Agostini, Justice Sandra Day O'Connor declared that the 1985 ruling "is no longer good law."

"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," she said. "It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement" between government and religion.

She was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Writing in dissent, Justice David H. Souter said the ruling's result was to "authorize direct state aid to religious institutions on an unparalled scale, in violation of the establishment clause's central prohibition against religious subsidies by the government."

He said the Title I program has worthy goals, and he acknowledged that the cost of compliance with the 1985 ruling was high.

"But constitutional lines are the price of constitutional government," he said. Justices John Paul Stevens and Ruth Bader Ginsburg signed onto all of Justice Souter's dissent, and Justice Stephen G. Breyer signed on in part.

In a separate dissent, Justice Ginsburg said the majority should not have used the same case from New York City to re-examine the 1985 Aguilar ruling. She suggested the majority had pursued an agenda to overturn Aguilar and would not let the procedural difficulties of the new case stand in the way.

The three other dissenting justices all signed Justice Ginsburg's opinion.

Grand Rapids Reversal

The ruling was a victory for the New York City board of education, whose Title I program was at issue in both the 1985 Aguilar ruling and the court's new decision.

The New York district undertook an unusual legal strategy to return to the Supreme Court after five justices said in a separate 1994 decision that the Aguilar ruling should be reconsidered or overturned.

New York City officials invoked a seldom-used court procedure to ask a federal judge for relief from the injunction stemming from the 1985 ruling. The district argued that church-state law had fundamentally shifted since that decision and that the Aguilar ruling had been undermined. Both a federal district court and appeals court were sympathetic to the New York district, but they held that only the Supreme Court had the power to overturn one of its precedents. ("N.Y.C. Seeks To Overturn Limits on Title I at Religious Schools," Feb. 28, 1996, and "N.Y.C. Gets Go-Ahead To Seek Felton Reversal," May 29, 1996.)

Justice O'Connor endorsed that view in her opinion and said she doubted that many litigants would use a similar procedure to seek reversal of other high court precedents.

The most surprising element of the majority ruling was that it went further than the relief sought by the New York district or the Clinton administration and overruled part of a companion case to the 1985 Aguilar ruling.

In School District of Grand Rapids v. Ball, the court struck down two programs a Michigan district implemented to serve private school students, the vast majority of whom attended religious schools. The Grand Rapids district's Shared Time program provided not only remedial instruction to needy students, but also enrichment classes in subjects that were not part of the core curriculum of the private schools.

The high court 12 years ago struck down the Shared Time program on broader grounds than the entanglement rationale used to strike down New York City's policy of sending Title I teachers into religious schools.

The court said in 1985 that the Grand Rapids program created a symbolic union of church and state and impermissibly financed religious schooling by subsidizing the primary religious mission of the sectarian school.

Justice O'Connor wrote that two high court rulings since then have significantly altered the church-state landscape and undermined the Aguilar ruling and the part of the Ball ruling striking down the Shared Time program.

The first was a 1986 ruling in Witters v. Washington Department of Services for the Blind, in which the court upheld a vocational tuition grant for a blind student who wished to use it to attend a Christian seminary. The second was the court's 1993 ruling in Zobrest v. Catalina Foothills School District, which authorized a school district to provide a sign-language interpreter for a deaf student attending a Roman Catholic high school. ("2 School Cases Heard by High Court Raise Church-State Issues," March 3, 1993.)

"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," Justice O'Connor said.

She stressed that the Aguilar precedent was not being reversed based on practical complications such as the added expense of using vans. Nor was the reversal based on the views of the five justices calling into question the ruling in a separate 1994 case known as Board of Education of the Kiryas Joel Village School District v. Grumet. ("Court Strikes District for Hasidic Sect," July 13, 1994.)

Questions About Vouchers

Justice O'Connor said that a public school program of aid to religious school children would pass constitutional muster provided it included the safeguards that the New York City district employed before 1985. The safeguards included reminders that the public school teachers were accountable to public school supervisors, not private school officials; they served only those children eligible for Title I; they could not engage in cooperative teaching with religious school teachers; and they could not include religious materials in their teaching. Also, all religious symbols were removed from the classrooms used for Title I services.

Lisa H. Thurau, the executive director of the National Committee for Public Education and Religious Liberty, called the ruling "a significant erosion of First Amendment protections."

The New York City-based group, known as PEARL, backed the original lawsuit, filed in 1978, that challenged the district's Title I program in religious schools.

Ms. Thurau also expressed fear that the ruling would be read broadly by advocates of other forms of government aid to religious schools, such as private school vouchers.

The decision "appears to give the green light to voucher initiatives around the country," she said. Indeed, voucher advocates such as Clint Bolick of the Washington-based Institute for Justice wasted no time in hailing the ruling.

"By acknowledging that establishment clause law has significantly changed in the past decade, the court's opinion bolsters school choice advocates' argument that states may give parents educational scholarships to spend at the public or private school of their choice," Mr. Bolick said in a statement.

But Justice O'Connor's opinion said nothing specifically about vouchers and even suggested that government aid that ended up in the coffers of private religious schools would be scrutinized differently by the court.

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