Agostini v. Felton, 521 U.S. 203 (1997)

In Agostini v. Felton, the U.S. Supreme Court reversed its 1985 decision in Aguilar v. Felton, 473 U.S. 402 (1985) (and portions of its companion decision in School District of Grand Rapids v. Ball, 473 U.S. 373, 1985), in which the Court had struck down government programs that provided remedial instruction in secular subjects on the grounds of religious schools. The Agostini decision, decided by a fiveto- four vote, reflected a shift in the Court’s personnel between 1985 and 1997 and the ongoing modification of the Court’s strong separationist jurisprudence reflected in the two earlier decisions.

In Aguilar, the Court considered the constitutionality of the use of federal funds provided by Title I of the Elementary and Secondary Education Act (ESEA) to pay the salaries of public school teachers who taught remedial reading and math courses to low-income children attending parochial schools in New York City. The Court in Aguilar ruled in a five-to-four vote that the government’s monitoring of the activities of these publicly funded teachers constituted an excessive entanglement between church and state in violation of the Establishment Clause.

More than a decade after the Aguilar decision, petitioners filed motions seeking relief from the injunction previously entered in the case that barred the use of publicly funded teachers in the parochial schools of New York City. The petitioners argued that several of the Court’s more recent decisions called into question the ongoing validity of the Aguilar decision, especially the decision in Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993), in which the Court had refused to presume that a statefunded interpreter working in a religious school would engage in religious indoctrination or constituted a symbolic union of government and religion. The petitioners also noted that five of the Court’s justices had expressed the view in Board of Education, Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), that Aguilar should be reconsidered or overruled.

The Supreme Court took the Agostini case and reversed. Justice Sandra Day O’Connor, who had dissented in the Aguilar case, wrote the opinion for the majority, finding that the provision of remedial instruction in secular subjects by publicly funded teachers did not violate the Establishment Clause, even if the instruction took place on the grounds of a religious school. In particular, the Court rejected the presumption of the Aguilar decision that a public school teacher who teaches on the property of a religious school is likely to inculcate students with the religious beliefs of that school. The Agostini Court also emphasized that any governmental aid under Title I comes to the religious school ‘‘only as a result of the genuinely independent and private choices’’ of those low-income children (and their parents) who attended a religious school. This ‘‘private choice’’ aspect of the Court’s decision would prove important to the Court in subsequent cases.

The four dissenters sharply criticized the majority’s decision. Justice David Souter, for example, claimed that ‘‘there is simply no line that can be drawn between instruction paid for at taxpayers’ expense and the instruction in any subject that is not identified as formally religious.’’

The Agostini decision became an important precedent for the Court as it considered additional cases involving other forms of government aid to religious schools that involved private choice. For example, in Zelman v. Simmons–Harris, 536 U.S. 639 (2002), the Court relied heavily on its Agostini decision to uphold the constitutionality of school vouchers.

DAVISON M. DOUGLAS

References and Further Reading

• Bunnow, Jeremy T., Reinventing the Lemon: Agostini v. Felton and the Changing Nature of Establishment Clause Jurisprudence, Wisconsin Law Review (1998): 1133–1180
• Roberson, Doug, Recent Development: The Supreme Court of the United States, 1996 Term: The Supreme Court’s Shifting Tolerance for Public Aid to Parochial Schools and the Implications for Educational Choice: Agostini v. Felton, 117 S. Ct. 1997 (1997), Harvard Journal of Law and Public Policy 21 (1998): 861–879
• Whitehead, Daniel P., Note: Agostini v. Felton: Rectifying the Chaos of Establishment Clause Jurisprudence, Capital University Law Review 27 (1999): 639–666

Cases and Statutes Cited

• Aguilar v. Felton, 473 U.S. 402 (1985) 
• Board of Education, Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994) 
• School District of Grand Rapids v. Ball, 473 U.S. 373 (1985) 
• Witters v. Washington Department of Services, 474 U.S. 481 (1986) 
• Zelman v. Simmons–Harris, 536 U.S. 639 (2002) 
• Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) 

See also Establishment Clause (I): History, Background, Framing; State Aid to Religious Schools