Where to Draw the Line? the Supreme Court Reverses on Federal Funding Programs Regarding Religious Schools: Agostini v. Felton - Michael N. White

• Citation: Vol. 49 No. 3
• Publication year: 1998

Where to Draw the Line? The Supreme Court Reverses on Federal Funding Programs Regarding Religious Schools: Agostini v. Felton

In Agostini v. Felton¹ the Supreme Court reversed its 1985 decision in Aguilar v. Felton² by holding that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is valid under the Establishment Clause³ even when the instruction is given on the premises of sectarian schools by government employees as long as the program contains safeguards such as those present in New York City's Title I program.⁴ Thus, the twelve-year-old permanent injunction entered in Aguilar against New York City's Title I program was vacated.⁵

I. FACTUAL BACKGROUND

Title I of the Elementary and Secondary Education Act of 1965⁶ was enacted to provide financial assistance, through the states, to local educational agencies ("LEAs") serving areas with concentrations of children from low income families. The purpose of Title I is to expand and improve these LEAs' educational programs, particularly special educational programs, by various means.⁷ Title I mandates that the funds must be made available to all eligible children, not particular schools or school systems, regardless of whether they attend public or private schools.⁸ In effect, the children qualify for the aid not the school or school system. However, even though the services provided to private school children are to be equivalent to those given to public school children,⁹ LEAs are subject to numerous constraints when providing services to private school children as opposed to public school chil-dren.¹⁰ For example, in the private school context, no program services are allowed on a school-wide basis, and only specifically eligible children could be provided aid.¹¹ Also, "Title I services themselves must be 'secular, neutral, and nonideological,'. . . and must 'supplement, and in no case supplant, the level of services' already provided by the private school."¹²

With ten percent of the total eligible students enrolled in religious private schools, the Board of Education of the City of New York ("the Board"), an LEA, initially arranged to transport those children to public schools to receive after-school Title I instruction. However, attendance was poor, the teachers and children were tired, and parents were concerned for their children's safety. Because this enterprise was largely unsuccessful, the Board moved the after-school instruction onto private school campuses as Congress had contemplated when it enacted Title I. This after-school program continued to yield mixed results. Therefore, the Board implemented a plan in which the instruction would be given during school hours, still on the private school campuses. Essentially, the plan called for public school teachers to provide the remedial instruction to eligible students. Included in the plan were supervisors and specific directions to ensure no involvement with religious activities or materials in the classrooms during Title I instruction. A program coordinator supervised the instruction, making unannounced visits to monitor Title I classes in the private schools.¹³

In 1978 six taxpayers commenced an action, Aguilar v. Felton, in the District Court for the Eastern District of New York, alleging that the Title I program administered by the City of New York violated the Establishment Clause. The district court granted summary judgment to the Board, and an unanimous Court of Appeals for the Second Circuit reversed.¹⁴ The Supreme Court granted certiorari and, in a five to four decision, affirmed the Second Circuit.¹⁵ The Court held that the Board's program was constitutionally flawed because it necessitated an excessive entanglement of church and state in the administration of Title I services.¹⁶

In October and December 1995, the Board and a group of parents of parochial school students entitled to Title I services filed motions in the district court under rule 60(b) of the Federal Rules of Civil Procedure ("Rule 60(b)").¹⁷ In this new action, Agostini v. Felton, petitioners sought relief from the permanent injunction entered on remand from the decision of the Supreme Court in Aguilar. Petitioners argued that relief was proper under Rule 60(b)(5) because the subsequent "decisional law [had] changed to make legal what the [injunction] was designed to prevent."¹⁸ The district court, while recognizing Rule 60(b)(5) as a procedurally sound vehicle to get the propriety of the injunction before the Supreme Court, denied the motion on the merits. Even though the court observed that there might have been reason to conclude from recent Establishment Clause decisions that Aguilar's demise was imminent, that demise had not yet occurred. The Court of Appeals for the Second Circuit affirmed for substantially the same reasons stated in the district court opinion.¹⁹ The Supreme Court granted certiorari and reversed in another five to four decision, holding 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" in petitioner's program.²⁰

II. LEGAL BACKGROUND

The 1947 opinion of the Supreme Court in Everson v. Board of Education²¹ was used to fashion a test for considering whether a program providing state or federal aid to children attending religious schools violated the Establishment Clause of the First Amendment.²² In Everson a New Jersey statute authorized reimbursement to parents for the costs incurred in bussing their children to Catholic parochial schools on regular busses operated by the public transportation system.²³ The Court noted the difficulty in drawing the line between tax legislation that provided funds for the general welfare of the public and that which was designed to support religious schools.²⁴ The Court upheld the statute, stating that a program that is neutral in its relations with religious and nonreligious groups and that aims to benefit all of its citizens without regard to their religious beliefs was not prohibited by the Establishment Clause of the First Amendment.²⁵ The Court reasoned that even though tax dollars were used to help children get to church schools, the statute was still neutral; the service was similar to other general government services as ordinary as police and fire protection, public highways, and sidewalks.²⁶ When church schools have the benefit of general government services, tax dollars make it easier for parents to send their children to religious schools.²⁷ Conversely, cutting off these services would make it harder for the schools to operate.²⁸ The Court stated that the Establishment Clause's purpose was not to handicap religious institutions as compared to the general public anymore than it was to favor any religious institution over the general public.²⁹ The Court in School District v. Schempp used this holding to fashion a test for evaluating statutes under the Establishment Clause.³⁰ "[T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."³¹

The Court in Board of Education v. Allen³² used this test and upheld a New York statute requiring school books to be loaned free of charge to all students in specified grades, including those in sectarian schools.³³ The Court reasoned that the funds went to the children, not to the schools.³⁴ Even if the statute made it easier for parents to send their children to sectarian schools, as in Everson, this consideration alone did not demonstrate an unconstitutional degree of support for religious institutions.³⁵

In Lemon v. Kurtzman,³⁶ the Court developed a three-pronged test from these earlier cases.³⁷ The test required that the statute (1) have a secular legislative purpose, (2) have as its principal or primary effect one that neither advances nor inhibits religion, and (3) not foster an excessive government entanglement with religion.³⁸ This third prong was added not from a case regarding religious schools, but from Walz v. Tax Commission,³⁹ in which the Court held property tax exemptions for church-owned property as not violative of the Establishment Clause.⁴⁰ The Court in Lemon interpreted the holding in Walz to "confine rather than enlarge the area of permissible state involvement with religious institutions by calling for close scrutiny of the degree of entanglement involved in the relationship."⁴¹ The Court denned the third prong's objective as limiting, as much as possible, the intrusion of either into the precincts of the other.⁴²

In Lemon the Court struck down a Rhode Island statute that supplemented parochial school teachers' salaries and a Pennsylvania statute that reimbursed certain secular educational services provided by parochial schools.⁴³ The Court concluded that the cumulative impact of the entire relationship arising under the statute in each state involved excessive entanglement between government and religion.⁴⁴ The Court in Lemon reasoned that because states must be certain that subsidized teachers do not inculcate religion in their teaching, "comprehensive, discriminating, and continuing" state surveillance would be required.⁴⁵ The Court held that "[t]hese prophylactic contacts will involve excessive and enduring entanglement between the state and church."⁴⁶

The excessive entanglement prong continued to be dispositive when considering aid to sectarian schools. In Meek v. Pittenger,⁴⁷ the Court upheld the textbook loan provisions but held unconstitutional the massive aid of a Pennsylvania statute.⁴⁸ Even though the aid was secular and nonideological (charts, maps, and lab supplies), the Court stated that when it flows in large amounts to an institution in...