Agostini v. Felton
The Supreme Court’s 1997 judgment in Agostini v. Felton essentially reversed the decision it had made 12 years earlier in Aguilar v. Felton (1985). In Aguilar, a divided Court held that permitting Title I teachers paid by the New York City Board of Education to provide remedial mathematics and language arts instruction on site in religious schools violated the Establishment Clause. The permanent injunction that a federal trial court issued on remand in Aguilar became the basis for the Court’s review in 1997. Without the need for a new trial, the Agostini Court relied on Federal Rules of Civil Procedure 60(b)(5), which permits a review of prior injunctive relief where a significant change has occurred in the law. The facts were identical in Agostini and Aguilar. Thus, the issue before the Supreme Court was the extent to which the law regarding interpretation of the Establishment Clause had changed during the intervening 12 years.
What the Law Says
Title I of the Elementary and Secondary Education Act of 1965 provides for federal funds to be channeled through states to local school systems, where the funds are to be used for all students who are eligible, as determined by their location in low-income areas or by their poor academic performance in meeting state outcomes standards. Title I funds are used primarily to purchase materials and employ teachers to work on site with eligible children. Title I expressly provides that students do not have to attend public schools in order to have access to Title I services and that students attending private (including religious) schools are entitled to a proportionate amount of the funding based on the ratio of public to private school eligible students (20 U.S.C. §§ 6312(c)(1)(F), 6321(a)(3)).
Among the students in New York City eligible for Title I services were students attending religious schools, primarily Catholic schools. When the New York City Board of Education authorized the expenditure of Title I funds for on-site services in these religious schools, several parties challenged the expenditure as violating the Establishment Clause.
The Court’s Ruling
In Aguilar the Supreme Court found that the supervision plan that the New York City Board of Education had in place to prevent Title I teachers from being indoctrinated by the religious practices of the religious school and to prevent the teachers from imparting religious doctrine to students amounted to excessive entanglement, in violation of the Court’s test in Lemon v. Kurtzman (1971). Following Aguilar, the Supreme Court decided three Establishment Clause cases that were to have a significant impact on the Court’s jurisprudence in Agostini: Witters v. Washington Department. of Services for the Blind (1986); Zobrest v. Catalina Foothills School District (1993), and Rosenberger v. Rector and Visitors of University of Virginia (1995).
The Witters Court ruled that the Establishment Clause did not preclude the State of Washington from extending financial assistance under its state vocational rehabilitation assistance program to a blind person who chose to study at a Christian college to become a pastor, missionary, or youth director. The Supreme Court in Zobrest decided that a public school board’s providing a sign language interpreter, pursuant to the Individuals with Disabilities Education Act (IDEA), to a student on site in a religious school did not constitute a violation of the Establishment Clause for much the same reason as in Witters. Rosenberger was the most far-reaching of the three cases and required that the University of Virginia fund the printing of a student religious organization’s publication presenting contemporary topics from a Christian perspective, in much the same way that the university funded other publications presenting differing perspectives.
Agostini acknowledged that while the Lemon test continued to define permissible government conduct under the Establishment Clause, what had changed as a result of the three decisions was the Court’s “understanding of the criteria used to assess whether aid to religion has an impermissible effect” (p. 223) and its presumption that “all government aid that directly assists the educational function of religious schools is invalid” (p. 225). As a result of this change in its interpretation of the Establishment Clause, in Agostini a divided Court reasoned that there was no more reason to presume that a full-time publicly paid Title I teacher would “depart from her assigned duties and instructions and embark on religious indoctrination” than that a post-Zobrest interpreter would “inculcate religion by altering her translation of classroom lectures” (p. 226).
In addition, the Agostini Court was of the opinion that as long as Title I remedial services are available only to eligible students, these services no more “impermissibly finance religious indoctrination” (p. 228) than did the sign language interpreter in Zobrest.
Agostini put an end to New York City’s post- Aguilar $100 million in expenditures to continue providing Title I services to religious school students by transporting the students to public schools, furnishing computer-aided instruction, or parking trailers with Title I service providers on public streets outside the religious schools (p. 213). It is worth noting that since Agostini found only that providing on-site services was permissible under the Establishment Clause, providing such services could still violate state constitutions, a situation that occurred in Witters after the case was remanded to the Supreme Court of Washington. (Witters v. State Commission for the Blind).
Ralph D. Mawdsley
See also Lemon v. Kurtzman; State Aid and the Establishment Clause; Zobrest v. Catalina Foothills School District
Agostini v. Felton, 521 U.S. 203 (1997).
Aguilar v. Felton, 473 U.S. 402 (1985).
Federal Rules of Civil Procedure, 60(b)(5).
Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Title I of the Elementary and Secondary Education Act, 20 U.S.C. §§ 6301 et seq.
Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819 (1995).
Witters v. State Commission for the Blind, 771 P.2d 1119 (Wash. 1989).
Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986).
Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).