Aguilar v. Felton
473 US 402 (Decided July 1, 1985)
Bill Long
At issue in this case was whether New York's use of federal funds under Title 1 of a 1965 federal law to pay private schools for remedial instructional services provided by public school teachers on private school grounds violated the Establishment Clause of the First Amendment. By a 5-4 majority, in an opinion authored by Justice Brennan, the Court concluded that such aid violated both the primary effect and entanglement prongs of the Lemon test. In dissent, Justice O'Connor answered each point of the majority in an attempt to show that the majority's fears of divisiveness, entanglement and effect of aiding sectarian religion were unfounded.
Relevant Facts and Decision
Title I of the Elementary and Secondary Edcuation Act of 1965 (as amended by a new statute in 1982) authorized distribution of federal funds to local educational institutions to meet the needs of educationally deprived students from low-income families. Since 1966 New York had used Title I founds also to provide remedial education to parochial school students on the premises of their schools. These courses were taught by regular employees of the public schools. Of those eligible to receive funds in 1981-82, 13.2% were enrolled in private schools, of which 84% were Roman Catholic schools and 8% were Jewish.
Though crucial details of how the program worked were not provided by the Court (for example, since the public school teachers "volunteer," how much money goes to whom for the courses? In addition, how are the students actually selected for this remedial education?), Justice Brennan had no difficulty concluding that the supervisory system established by the City of New York inevitably results in an excessive entantlement between church and state. Entanglement is inevitable both because aid is provided in a pervasively sectarian environment and, since assitance is provided in the form of teachers, ongoing inspection is required to ensure the absence of a religious message. The nub of his objection seemed to be that supplying public school teachers to private schools to teach private school students exclusively in the physical context of the private school and requiring the state visit and supervise this teaching caused an unaccetably high level of "continuing state surveillance" (to quote Lemon).
Justice O'Connor in Dissent
After Justice Powell, a "moderate" on Establishment Clause issues, concurred because "the participation of public school teachers and the government surveillance necessary to ensure that public funds are used" caused entanglement problems, Justice O'Connor wrote in dissent. Though the majority opinion did not belabor the second Lemon prong (effects), she spoke of how the program did not advance religion. In fact, in 19 years since its inception there had never been an instance in which a Title I instructor subtly or overtly tried to indoctrinate the students in particular religious tenets. In a very practical observation, she mused that professional teachers are unlikely to be affected by the parochial environment both because many of them teach in a variety of environments, are not of the same religion as the parochial school and, in fact, are committed professionals who know how to follow instructions regarding leaving whatever religious proclivities they might have behind for the purposes of teaching remedial math or reading.
The majority had made four "entanglement" claims: (1) that remedial education is given in a pervasively sectarian environment; (2) that ongoing supervision is required to assure that the public school teachers do not inculcate religion; (3) that administrative personnel of both school systems must work together to resolve administrative and scheduling problems; and (4) that instruction is likely to result in political divisiveness. Though acknowledging some support for the majority's entanglement analysis in Meek, Justice O'Connor argued that she would be inclined to defer to it if it made sense. But, it did not. Indeed, no danger was shown of public school teachers teaching sectarian religion in the private schools, and the danger appears to be counterintuitive. In addition, the degree of supervision has been vastly overestimated by the majority. The supervision under Title I does not differ significantly from the supervision any public school teacher receives, she claimed. Finally, the reliance on potential for political divisiveness was also unpersuasive. Any program that had survived 19 years in the rough and tumble political atmosphere of New York City without a whisper of religious turmoil is not one that will foster the kind of divisiveness the majority feared.
Justice O'Connor called the Court's decision "tragic" for the needy children cut off from this necessary service. Instead of promoting justice for these students, "The Court deprives them of a program that offers a meaningful chance at success in life."
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