In 1985, the Supreme Court heard a case from NYC in which public school teachers were being sent into parochial schools to provide remedial education to disadvantaged students. It was decided in Aguilar v. Felton (1985) that this created an excessive entanglement of church and state, violating the Establishment Clause of the First Amendment as applied to the states via the Fourteenth. 

Twelve years later, the Court changed its mind. 

Prior to Aguilar in 1985, NYC was already going to great lengths in their effort to reconcile seemingly incongruent obligations. State law required them to provide remediation for Title I students, wherever they went to school, while established case law barred them from “entanglement” with sectarian efforts. 

First they tried having the students come to the public schools at the end of the regular school day. That didn’t work – too difficult to maintain consistency. These weren’t students for whom transportation and out-of-school support systems were generally reliable. 

Next they tried sending the teachers to the private schools at the end of the day. Constitutional safeguards were put into place in an attempt to avoid “excessive entanglement.” Teachers were given special training and written instructions on how to stay secular. Equipment or supplies from each school or devoted to different functions were not allowed to mix – no using Catholic chalk to show that remedial math problem, or leaving your secular legal pads behind and risk Baptist note-taking on them the next day. 

No team teaching. No mixed activities. One wonders if perhaps eye contact with anyone wearing an angel pin was discouraged. Remedial instruction could only take place in rooms bereft of religious symbols or imagery, despite the fact that students had been surrounded by sectarian materials the entire day leading up to these lessons. 

Teachers were randomly assigned to different sites. In some cases, care was taken to send teachers of one faith to schools of another. Can you imagine that team meeting? “Now, Dakota – you’re getting more and more Baptist every day from what I can tell from your Facebook posts. Let’s send you to Mother of Grace Cathedral. And Gary – you’re still pretty much unbearably Unitarian, yes? Alright – off to Word of Faith of Power Academy with you then!” 

I’m, um… speculating, of course. Gary might have been agnostic. 

Finally, supervisors were required to make multiple, unannounced visits to ensure no Establishing or Free-Exercise-Limiting was accidentally occurring. “Are you SURE they sneezed right before you snuck in that ‘Bless You’?!?”

Even with all of that, the Court decided in 1985 that these efforts were insufficient. So the Board of Education of NYC tried adding to their “wall of separation.” 

They spent millions leasing neutral property and buying separate equipment to be used in remedial instruction, including vans which were essentially converted into ‘mobile classrooms’ to be parked near the sectarian schools, but not on “sectarian property.”

In short, complying with both the dictates of the Court and the demands of effective remediation turned into an expensive sort of ridiculous. 

Agostini v. Felton (1997) began when the district filed several motions in Federal District Court seeking exemptions from the rules established by Aguilar. Their argument was threefold:

1. The costs involved were undermining the entire purpose of their efforts – and were well-beyond what could have been anticipated when Aguilar was decided. Legally, this constituted a “change of fact” – one reason the Court sometimes reverses itself. In other words, the situation was different, so perhaps the decision should be, too.

2. In the decade since Aguilar, multiple written opinions – both majority and dissenting – in other cases heard by the Court had expressed a desire to reconsider this decision.  

3. Decisions in related cases over that same time period were already moving towards overturning Aguilar. If the precedent was already crumbling, it was time to re-evaluate. 

The Court was not particularly swayed by either of the first two arguments, but that last one won the day. Agostini v. Felton (1997) overturned Aguilar v. Felton (1985) in a 5-4 split decision. It was no longer considered a violation of the Establishment Clause for a state-sponsored education initiative to send public school teachers into religious schools, so long as reasonable steps were taken to minimize “entanglement.” 

The majority opinion, written by Justice Sandra Day O’Connor, revisits the reasoning used to decide Aguilar twelve years before, including – once again – our famous “Lemon Test.” She also discusses numerous other cases whose outcomes shape the Court’s reasoning in current circumstances. 

For those of you new to jurisprudence, that’s how the Court works – they interpret laws, of course, and they’re tasked with determining the constitutionality of what’s before them based on both original intent and evolving circumstances. One of the primary tools used to do this is the Court’s own history. 

Stare Decisis is the principle that the Court will generally abide by its own previous decisions unless there’s very good reason to do otherwise. It’s a critical element of the system if lower courts, institutions, and impacted citizens are to have any idea what’s considered acceptable in the eyes of the law. 

If we are to be a nation of laws, rather than men (a high ideal, to be sure), then some degree of predictability in that law is essential. 

O’Connor explains the Court’s change of thinking step by step:

As we have repeatedly recognized, government inculcation of religious beliefs has the impermissible effect of advancing religion. Our cases subsequent to Aguilar have, however, modified in two significant respects the approach we use to assess indoctrination. 

First, we have abandoned the presumption… 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…

The Court cites Zobrest v. Catalina Foothills School District (1993) by way of example, including this bit:

Zobrest therefore expressly rejected the notion… that, solely because of her presence on private school property, a public employee will be presumed to inculcate religion in the students. Zobrest also implicitly repudiated another assumption… that the presence of a public employee on private school property creates an impermissible “symbolic link” between government and religion…

The next basis for the Aguilar decision was essentially overturned by Witters v. Washington Department of Services for the Blind (1986)

Second, we have departed from the rule… that all government aid that directly aids the educational function of religious schools is invalid… 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”…

Notice that the argument is as much about professionalism and practicality as it is the finer points of constitutional law:

Indeed, each of the premises upon which we relied {previously} 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. Thus, both our precedent and our experience require us to reject respondents’ remarkable argument that we must presume Title I instructors to be “uncontrollable and sometimes very unprofessional.” 

As to the question of impact – does the effect of the legislation inhibit or promote religion – the Court adapts a line of thinking similar to that in Mueller v. Allen (1983). The opportunity is neutral towards religion, even if the results benefit one group more than another. 

A number of our Establishment Clause cases have found that the criteria used for identifying beneficiaries are relevant in a second respect, apart from enabling a court to evaluate whether the program subsidizes religion. Specifically, the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination… 

This incentive is not present, however, where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Under such circumstances, the aid is less likely to have the effect of advancing religion…

The Court then turns to the question of “entanglement”:

Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two. Entanglement must be “excessive” before it runs afoul of the Establishment Clause… 

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…

Just in case there’s any misunderstanding, O’Connor brings it home with great clarity:

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… 

Justice Souter wrote a fascinating dissent, which several of the other justices joined. His argument is less pragmatic and more big picture. I particularly like this part:

As I will indicate as I go along, I believe Aguilar was a correct and sensible decision…

As is explained elsewhere, the flat ban on subsidization {he means the public support for sectarian institutions} antedates the Bill of Rights and has been an unwavering rule in Establishment Clause cases… The rule expresses the hard lesson learned over and over again in the American past and in the experiences of the countries from which we have come, that religions supported by governments are compromised just as surely as the religious freedom of dissenters is burdened when the government supports religion. 

This echoes sentiments expressed in Engel v. Vitale (1962), and later in Lee v. Weisman (1992). 

When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being taint{ed} . . . with corrosive secularism. The favored religion may be compromised as political figures reshape the religion’s beliefs for their own purposes; it may be reformed as government largesse brings government regulation.

(That last bit included quotes from quotes within other quotes, which made punctuation and citation a bit of a mess – so I just cut everything but the substance. Look it up if you care.)

Souter goes on to quote extensively from various other cases and authorities on the danger of any hint of “establishment” not to dissenters or the state, but to the faith being thus “established.” It’s a question we too easily ignore today when discussing such things. 

He delineates several critical differences between the cases cited in the majority opinion and the specifics before the Court here, but concluded rather poetically – at least in my opinion:

That is not to deny that the facts just recited are regrettable; the object of Title I is worthy without doubt, and the cost of compliance is high. In the short run there is much that is genuinely unfortunate about the administration of the scheme under Aguilar’s rule. 

But constitutional lines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line. But constitutional lines are the price of constitutional government.

 I’m not sure there’s anything I can say to top that.