# Aguilar v. Felton/Dissent O'Connor

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Powell
* Dissenting Opinions Burger Rehnquist O'Connor
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST joins as to Parts II and III, dissenting.
Today the Court affirms the holding of the Court of Appeals that public school teachers can offer remedial instruction to disadvantaged students who attend religious schools "only if such instruction . . . [is] afforded at a neutral site off the premises of the religious school." 739 F.2d 48, 64 (CA2 1984). This holding rests on the theory, enunciated in Part V of the Court's opinion in Meek v. Pittenger, 421 U.S. 349, 367-373 (1975), that public school teachers who set foot on parochial school premises are likely to bring religion into their classes, and that the supervision necessary to prevent religious teaching would unduly entangle church and state. Even if this theory were valid in the abstract, it cannot validly be applied to New York City's 19-year-old Title I program. The Court greatly exaggerates the degree of supervision necessary to prevent public school teachers from inculcating religion, and thereby demonstrates the flaws of a test that condemns benign cooperation between church and state. I would uphold Congress' efforts to afford remedial instruction to disadvantaged schoolchildren in both public and parochial schools.

#### I

As in Wallace v. Jaffree, 472 U.S. 38 (1985), and Thornton v. Caldor, Inc., 472 U.S. 703"]472 U.S. 703 (1985), the Court in this litigation adheres to the three-part Establishment Clause [p422] test enunciated in 472 U.S. 703 (1985), the Court in this litigation adheres to the three-part Establishment Clause [p422] test enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). To survive the Lemon test, a statute must have both a secular legislative purpose and a principal or primary effect that neither advances nor inhibits religion. Under Lemon and its progeny, direct state aid to parochial schools that has the purpose or effect of furthering the religious mission of the schools is unconstitutional. I agree with that principle. According to the Court, however, the New York City Title I program is defective not because of any improper purpose or effect, but rather because it fails the third part of the Lemon test: the Title I program allegedly fosters excessive government entanglement with religion. I disagree with the Court's analysis of entanglement, and I question the utility of entanglement as a separate Establishment Clause standard in most cases. Before discussing entanglement, however, it is worthwhile to explore the purpose and effect of the New York City Title I program in greater depth than does the majority opinion.
The purpose of Title I is to provide special educational assistance to disadvantaged children who would not otherwise receive it. Congress recognized that poor academic performance by disadvantaged children is part of the cycle of poverty. S.Rep. No. 146, 89th Cong., 1st Sess., 4 (1965). Congress sought to break the cycle by providing classes in remedial reading, mathematics, and English to disadvantaged children in parochial as well as public schools, for public schools enjoy no monopoly on education in low-income areas. Wheeler v. Barrera, 417 U.S. 402, 405-406 (1974). See 20 U.S.C. §§ 2740(a), 3806(a). Congress permitted remedial instruction by public school teachers on parochial school premises only if such instruction is "not normally provided by the nonpublic school" and would "contribute particularly to meeting the special educational needs of educationally deprived children." S.Rep. No. 146, supra, at 12. See 34 CFR § 200.73 (1984) (Department of Education regulations implementing Title I and precluding instruction on parochial [p423] school premises except where necessary and where such instruction is not normally provided by the school).
After reviewing the text of the statute and its legislative history, the District Court concluded that Title I serves a secular purpose of aiding needy children regardless of where they attend school. App. to Juris. Statement in No. 84-238, p. 56a, incorporating findings of the District Court in National Coalition for Public Education and Religious Liberty v. Harris, 489 F.Supp. 1248, 1258 (SDNY 1980) (PEARL). The Court of Appeals did not dispute this finding, and no party in this Court contends that the purpose of the statute or of the New York City Title I program is to advance or endorse religion. Indeed, the record demonstrates that New York City public school teachers offer Title I classes on the premises of parochial schools solely because alternative means to reach the disadvantaged parochial school students — such as instruction for parochial school students at the nearest public school, either after or during regular school hours — were unsuccessful. PEARL, supra, at 1255. As the Court of Appeals acknowledged, New York City "could reasonably have regarded [Title I instruction on parochial school premises] as the most effective way to carry out the purposes of the Act." 739 F.2d at 49. Whether one looks to the face of the statute or to its implementation, the Title I program is undeniably animated by a legitimate secular purpose.
The Court's discussion of the effect of the New York City Title I program is even more perfunctory than its analysis of the program's purpose. The Court's opinion today in School District of Grand Rapids v. Ball, ante p. 373, which strikes down a Grand Rapids scheme that the Court asserts is very similar to the New York City program, identifies three ways in which public instruction on parochial school premises may have the impermissible effect of advancing religion. First,
state-paid instructors, influenced by the pervasively sectarian nature of the religious schools in which they work, may [p424] subtly or overtly indoctrinate the students in particular religious tenets at public expense.
Second,
state-provided instruction in the religious school buildings threatens to convey a message of state support for religion to students and to the general public.
Third,
the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.
Ante at 397. While addressing the effect of the Grand Rapids program at such length, the Court overlooks the effect of Title I in New York City.
One need not delve too deeply in the record to understand why the Court does not belabor the effect of the Title I program. The abstract theories explaining why on-premises instruction might possibly advance religion dissolve in the face of experience in New York City. As the District Court found in 1980:
New York City has been providing Title I services in nonpublic schools for fourteen years. The evidence presented in this action includes: extensive background information on Title I; an in-depth description of New York City's program; a detailed review of Title I rules and regulations and the ways in which they are enforced; and the testimony and affidavits of federal officials, state officers, school administrators, Title I teachers and supervisors, and parents of children receiving Title I services. The evidence establishes that the result feared in other cases has not materialized in the City's Title I program. The presumption — that the "religious mission" will be advanced by providing educational services on parochial school premises — is not supported by the facts of this case.
PEARL, supra, at 1265. Indeed, in 19 years, there has never been a single incident in which a Title I instructor "subtly or overtly" attempted to "indoctrinate the students in particular religious tenets at public expense." Grand Rapids, ante at 397. [p425]
Common sense suggests a plausible explanation for this unblemished record. New York City's public Title I instructors are professional educators who can and do follow instructions not to inculcate religion in their classes. They are unlikely to be influenced by the sectarian nature of the parochial schools where they teach, not only because they are carefully supervised by public officials, but also because the vast majority of them visit several different schools each week, and are not of the same religion as their parochial students. [*] In light of the ample record, an objective observer of the implementation of the Title I program in New York City would hardly view it as endorsing the tenets of the participating parochial schools. To the contrary, the actual and perceived effect of the program is precisely the effect intended by Congress: impoverished schoolchildren are being helped to overcome learning deficits, improving their test scores, and receiving a significant boost in their struggle to obtain both a thorough education and the opportunities that flow from it.
The only type of impermissible effect that arguably could carry over from the Grand Rapids decision to this litigation, then, is the effect of subsidizing "the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects." Ibid. That effect is tenuous, however, in light of the statutory directive that Title I funds may be used only to provide services that otherwise would not be available to the participating students. 20 U.S.C. § 3807(b). The Secretary of Education has vigorously enforced the requirement that Title I funds supplement, rather than supplant, the services of local education agencies. See Bennett v. Kentucky Dept. of Ed., 470 U.S. 656 (1985); Bennett v. New Jersey, 470 U.S. 632 (1985). [p426]
Even if we were to assume that Title I remedial classes in New York City may have duplicated to some extent instruction parochial schools would have offered in the absence of Title I, the Court's delineation of this third type of effect proscribed by the Establishment Clause would be seriously flawed. Our Establishment Clause decisions have not barred remedial assistance to parochial school children, but rather remedial assistance on the premises of the parochial school. Under Wolman v. Walter, 433 U.S. 229, 244-248 (1977), the New York City classes prohibited by the Court today would have survived Establishment Clause scrutiny if they had been offered in a neutral setting off the property of the private school. Yet it is difficult to understand why a remedial reading class offered on parochial school premises is any more likely to supplant the secular course offerings of the parochial school than the same class offered in a portable classroom next door to the school. Unless Wolman was wrongly decided, the defect in the Title I program cannot lie in the risk that it will supplant secular course offerings.

#### II

Recognizing the weakness of any claim of an improper purpose or effect, the Court today relies entirely on the entanglement prong of Lemon to invalidate the New York City Title I program. The Court holds that the occasional presence of peripatetic public school teachers on parochial school grounds threatens undue entanglement of church and state because (1) the remedial instruction is afforded in a pervasively sectarian environment; (2) ongoing supervision is required to assure that the public school teachers do not attempt to inculcate religion; (3) the administrative personnel of the parochial and public school systems must work together in resolving administrative and scheduling problems; and (4) the instruction is likely to result in political divisiveness over the propriety of direct aid. Ante at 412-414; ante at 415-416 (concurring opinion of POWELL, J.). [p427]
This analysis of entanglement, I acknowledge, finds support in some of this Court's precedents. In Meek v. Pittenger, 421 U.S. at 369, the Court asserted that it could not rely
on the good faith and professionalism of the secular teachers and counselors functioning in church-related schools to ensure that a strictly nonideological posture is maintained.
Because "a teacher remains a teacher," the Court stated, there remains a risk that teachers will intertwine religious doctrine with secular instruction. The continuing state surveillance necessary to prevent this from occurring would produce undue entanglement of church and state. Id. at 370-372. The Court's opinion in Meek further asserted that public instruction on parochial school premises creates a serious risk of divisive political conflict over the issue of aid to religion. Ibid. Meek's analysis of entanglement was reaffirmed in Wolman two Terms later.
I would accord these decisions the appropriate deference commanded by the doctrine of stare decisis if I could discern logical support for their analysis. But experience has demonstrated that the analysis in Part V of the Meek opinion is flawed. At the time Meek was decided, thoughtful dissents pointed out the absence of any record support for the notion that public school teachers would attempt to inculcate religion simply because they temporarily occupied a parochial school classroom, or that such instruction would produce political divisiveness. Id. at 385 (opinion of BURGER, C.J.); id. at 387 (opinion of REHNQUIST J.). Experience has given greater force to the arguments of the dissenting opinions in Meek. It is not intuitively obvious that a dedicated public school teacher will tend to disobey instructions and commence proselytizing students at public expense merely because the classroom is within a parochial school. Meek is correct in asserting that a teacher of remedial reading "remains a teacher," but surely it is significant that the teacher involved is a professional, full-time public school employee who is unaccustomed to bringing religion into the classroom. [p428]
Given that not a single incident of religious indoctrination has been identified as occurring in the thousands of classes offered in Grand Rapids and New York City over the past two decades, it is time to acknowledge that the risk identified in Meek was greatly exaggerated.
Just as the risk that public school teachers in parochial classrooms will inculcate religion has been exaggerated, so has the degree of supervision required to manage that risk. In this respect, the New York City Title I program is instructive. What supervision has been necessary in New York City to enable public school teachers to help disadvantaged children for 19 years without once proselytizing? Public officials have prepared careful instructions warning public school teachers of their exclusively secular mission, and have required Title I teachers to study and observe them. App. 50-51. Under the rules, Title I teachers are not accountable to parochial or private school officials; they have sole responsibility for selecting the students who participate in their class, must administer their own tests for determining eligibility, cannot engage in team teaching or cooperative activities with parochial school teachers, must make sure that all materials and equipment they use are not otherwise used by the parochial school, and must not participate in religious activities in the schools or introduce any religious matter into their teaching. To ensure compliance with the rules, a field supervisor and a program coordinator, who are full-time public school employees, make unannounced visits to each teacher's classroom at least once a month. Id. at 53.
The Court concludes that this degree of supervision of public school employees by other public school employees constitutes excessive entanglement of church and state. I cannot agree. The supervision that occurs in New York City's Title I program does not differ significantly from the supervision any public school teacher receives, regardless of the location of the classroom. JUSTICE POWELL suggests that the required supervision is extensive because the State must be [p429] certain that public school teachers do not inculcate religion. Ante at 415. That reasoning would require us to close our public schools, for there is always some chance that a public school teacher will bring religion into the classroom, regardless of its location. See Wallace v. Jaffree, 472 U.S. at 44-45, n. 23. Even if I remained confident of the usefulness of entanglement as an Establishment Clause test, I would conclude that New York City's efforts to prevent religious indoctrination in Title I classes have been adequate, and have not caused excessive institutional entanglement of church and state.
The Court's reliance on the potential for political divisiveness as evidence of undue entanglement is also unpersuasive. There is little record support for the proposition that New York City's admirable Title I program has ignited any controversy other than this litigation. In Mueller v. Allen, 463 U.S. 388"]463 U.S. 388, 403-404, n. 11 (1983), the Court cautioned that the "elusive inquiry" into political divisiveness should be confined to a narrow category of parochial aid cases. The concurring opinion in 463 U.S. 388, 403-404, n. 11 (1983), the Court cautioned that the "elusive inquiry" into political divisiveness should be confined to a narrow category of parochial aid cases. The concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 687 (1984), went further, suggesting that Establishment Clause analysis should focus solely on the character of the government activity that might cause political divisiveness, and that "the entanglement prong of the Lemon test is properly limited to institutional entanglement."
I adhere to the doubts about the entanglement test that were expressed in Lynch. It is curious indeed to base our interpretation of the Constitution on speculation as to the likelihood of a phenomenon which the parties may create merely by prosecuting a lawsuit. My reservations about the entanglement test, however, have come to encompass its institutional aspects as well. As JUSTICE REHNQUIST has pointed out, many of the inconsistencies in our Establishment Clause decisions can be ascribed to our insistence that parochial aid programs with a valid purpose and effect may still be invalid by virtue of undue entanglement. Wallace v. [473 U.S. 430] Jaffree, supra, at 109-110. For example, we permit a State to pay for bus transportation to a parochial school, Everson v. Board of Education, 330 U.S. 1 (1947), but preclude States from providing buses for parochial school field trips, on the theory such trips involve excessive state supervision of the parochial officials who lead them. Wolman, 433 U.S. at 254. To a great extent, the anomalous results in our Establishment Clause cases are "attributable to [the] ‘entanglement' prong." Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U.Pitt.L.Rev. 673, 681 (1980).
Pervasive institutional involvement of church and state may remain relevant in deciding the effect of a statute which is alleged to violate the Establishment Clause, Walz v. Tax Comm'n, 397 U.S. 664 (1970), but state efforts to ensure that public resources are used only for nonsectarian ends should not, in themselves, serve to invalidate an otherwise valid statute. The State requires sectarian organizations to cooperate on a whole range of matters without thereby advancing religion or giving the impression that the government endorses religion. Wallace v. Jaffree, supra, at 110 (dissenting opinion of REHNQUIST, J.) (noting that state educational agencies impose myriad curriculum, attendance, certification, fire, and safety regulations on sectarian schools). If a statute lacks a purpose or effect of advancing or endorsing religion, I would not invalidate it merely because it requires some ongoing cooperation between church and state or some state supervision to ensure that state funds do not advance religion.

#### III

Today's ruling does not spell the end of the Title I program of remedial education for disadvantaged children. Children attending public schools may still obtain the benefits of the program. Impoverished children who attend parochial schools may also continue to benefit from Title I programs offered off the premises of their schools — possibly in portable [p431] classrooms just over the edge of school property. The only disadvantaged children who lose under the Court's holding are those in cities where it is not economically and logistically feasible to provide public facilities for remedial education adjacent to the parochial school. But this subset is significant, for it includes more than 20,000 New York City schoolchildren and uncounted others elsewhere in the country.
For these children, the Court's decision is tragic. The Court deprives them of a program that offers a meaningful chance at success in life, and it does so on the untenable theory that public school teachers (most of whom are of different faiths than their students) are likely to start teaching religion merely because they have walked across the threshold of a parochial school. I reject this theory and the analysis in Meek v. Pittenger on which it is based. I cannot close my eyes to the fact that, over almost two decades, New York City's public school teachers have helped thousands of impoverished parochial school children to overcome educational disadvantages without once attempting to inculcate religion. Their praiseworthy efforts have not eroded and do not threaten the religious liberty assured by the Establishment Clause. The contrary judgment of the Court of Appeals should be reversed.
I respectfully dissent.
*↑ It is undisputed that 78% of Title I instructors who teach in parochial schools visit more than one school each week. Almost three-quarters of the instructors do not share the religious affiliation of any school they teach in. App. 49.