'We Have Departed From The Rule'
The Washington Post
Following are excerpts from the Supreme Court decision in Agostini v. Felton yesterday allowing public school teachers to enter parochial schools to provide remedial education. It was written by Justice Sandra Day O'Connor:
Petitioner Board of Education of the City of New York . . . has grappled [since 1966] . . . with how to provide Title I services [remedial education, guidance and job counseling] to the private school students within its jurisdiction. . . . [T]he Board initially arranged to transport children to public schools for after-school Title I instruction. . . . The Board then moved the after-school instruction onto private school campuses. . . . After this program also yielded mixed results, the Board implemented the plan we evaluated in Aguilar v. Felton (1985) . . . [which] called for the provision of Title I services on private school premises during school hours. . . .
In 1978, six federal taxpayers . . . sued the Board . . . claiming that the Board's Title I program violated the Establishment Clause. . . . [T]his Court [declared it unconstitutional] on the ground that the Board's Title I program necessitated an "excessive entanglement of church and state. . . . "
The Board . . . reverted to its prior practice of providing instruction at public school sites, at leased sites, and in mobile instructional units (essentially vans converted into classrooms) parked near the sectarian school. . . . [T]he additional costs of complying . . . are significant. . . .
In October and December of 1995 . . . a new group of parents of parochial school students entitled to Title I services filed motions in the District Court seeking relief. . . . The question we must answer is a simple one: Are petitioners entitled to relief . . . [under the rule that] "the court may relieve a party . . . from a final judgment [or] order . . . [when] it is no longer equitable that the judgment should have prospective application. . . ."
Petitioners . . . contend that the exorbitant costs of complying with the District Court's injunction constitute a significant factual development warranting modification of the injunction. . . . Petitioners also argue that there have been two significant legal developments since Aguilar was decided: a majority of Justices have expressed their views that Aguilar should be reconsidered or overruled . . .
[P]etitioners have failed to establish the significant change in factual conditions. . . .
[T]o evaluate whether Aguilar has been eroded by our subsequent Establishment Clause cases, it is necessary to understand the rationale upon which Aguilar as well as its companion case, School Dist. of Grand Rapids v. Ball . . . rested. . . .
[T]he Court's conclusion that the Shared Time program in Ball had the impermissible effect of advancing religion rested on three assumptions: (i) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school premises creates a symbolic union between church and state; and (iii) any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination. . . . [I]n Aguilar there was a fourth assumption: that New York City's Title I program necessitated an excessive government entanglement with religion because public employees who teach on the premises of religious schools must be closely monitored to ensure that they do not inculcate religion. . . .
Our cases subsequent to Aguilar have . . . modified in two significant respects the approach we use to assess indoctrination. First, we have abandoned the presumption . . . that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion. . . .
Second, we have departed from the rule relied on in Ball that all government aid that directly aids the educational function of religious schools is invalid. . . .
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