Aguilar v. Felton, 473 U.S. 402 (1985)

In its 1985 decision in Aguilar v. Felton, the U.S. Supreme Court declared unconstitutional a government program that provided remedial instruction to low-income children attending parochial schools—a decision that reflected the strong separationist jurisprudence adhered to by a narrow majority of the Court’s justices during that era.

Throughout the 1970s and early 1980s, the Court decided a large number of cases involving the constitutionality of various types of governmental financial assistance to religious schools. Throughout this time period, the Court assessed the constitutionality of such aid in accord with what was known as the ‘‘Lemon test,’’ drawn from the Court’s highly influential decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, in order for a governmental aid program to survive scrutiny under the Establishment Clause, (1) it must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster an excessive government entanglement with religion.

In Aguilar v. Felton, the Court determined that the aid program in question violated the third prong of the Lemon test. In this case, New York City used federal funds it received under Title I of the Elementary and Secondary Education Act (ESEA) to pay, among other things, the salaries of public school teachers who taught remedial reading and math courses to low-income children attending parochial schools in the city. To avoid an Establishment Clause violation, these teachers taught in special classrooms at the religious schools that were devoid of religious symbols, used secular instructional materials, and were monitored by the city through unannounced visits to make sure that they did not unwittingly inculcate their students with the religious beliefs of the parochial schools during the course of their instruction. The Supreme Court, in a five-to-four decision with Justice William Brennan writing for the majority, found that this monitoring process constituted an excessive entanglement of church and state in violation of the Establishment Clause.

The same day as the Aguilar decision, the Court decided a similar case involving the constitutionality of a state program in Michigan that also provided remedial instruction to low-income children in parochial schools. In that case, School District of Grand Rapids v. Ball, 473 U.S. 373 (1985), the Court, in another fiveto- four decision, found that the aid program had the potential to ‘‘impermissibly advance religion’’ in violation of the second prong of the Lemon test because ‘‘the teachers participating in the programs may become involved in intentionally or inadvertently inculcating particular religious tenets or beliefs.’’

In a sense, the New York City program provided what was missing from the Michigan program: careful monitoring to make sure that such inculcation did not happen. But in Aguilar, the Court found that the monitoring process, which the Court described as ‘‘a permanent and pervasive state presence in the sectarian schools receiving aid,’’ unduly entangled the government in the activities of the parochial schools in violation of the Establishment Clause. Therefore, both aid programs—one with governmental monitoring and one without—were unconstitutional. As a result of the Aguilar decision, remedial instruction to lowincome parochial school children in New York City continued but at considerable public expense: typically by providing instruction in a publicly provided trailer parked near a parochial school.

The majority’s decisions in Aguilar and Ball provoked bitter dissents. Chief Justice Warren Burger, for example, in his Aguilar dissent accused the majority of exhibiting ‘‘paranoia’’ and ‘‘nothing less than hostility toward religion and the children who attend church-sponsored schools.’’ Justice Sandra Day O’Connor labeled the decision ‘‘tragic’’ and ridiculed the majority’s notion that teachers ‘‘are likely to start teaching religion because they have walked across the threshold of a parochial school.’’ She noted that the nineteen-year track record of the Title I program revealed not one instance in which a teacher ‘‘attempted to indoctrinate the students in particular religious tenets.’’

In some ways, the Aguilar and Ball decisions constituted the ‘‘high-water’’ mark of the Court’s separationist jurisprudence. Thereafter, aided by personnel changes, the Court began to chip away at this jurisprudence and finally, in 1997, reversed the Aguilar and Ball decisions in Agostini v. Felton, 521 U.S. 203 (1997), in which it rejected its earlier presumption that publicly funded teachers of remedial reading and math in religious schools would inculcate their students with religious values.

DAVISON M. DOUGLAS

References and Further Reading

• 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

• Agostini v. Felton, 521 U.S. 203 (1997) 
• Lemon v. Kurtzman, 403 U.S. 602 (1971) 
• School District of Grand Rapids v. Ball, 473 U.S. 373 (1985) 

See also Burger, Warren E.; Establishment Clause (I): History, Background, Framing; Lemon Test; State Aid to Religious Schools