Aguilar v. Felton
Decided on July 1, 1985; 473 US 402


A. Issues Discussed: Establishment Clause

B. Legal Question Presented:

Do federal funds to pay the salaries of public employees who teach in parochial schools violate the Establishment Clause of the First Amendment?


A. Background:

"The program at issue in this case, originally enacted as Title I of the Elementary and Secondary Education Act of 1965, authorizes the Secretary of Education to distribute financial assistance to local educational institutions to meet the needs of educationally deprived children from low-income families. The funds are to be appropriated in accordance with programs proposed by local educational agencies and approved by state educational agencies.

Since 1966, the City of New York has provided instructional services funded by Title I to parochial school students on the premises of parochial schools. Of those students eligible to receive funds in 1981-1982, 13.2% were enrolled in private schools. Of that group, 84% were enrolled in schools affiliated with the Roman Catholic Archdiocese of New York and the Diocese of Brooklyn and 8% were enrolled in Hebrew day schools...

The programs conducted at these schools include remedial reading, reading skills, remedial mathematics, English as a second language, and guidance services. These programs are carried out by regular employees of the public schools (teachers, guidance counselors, psychologists, psychiatrists, and social workers) who have volunteered to teach in the parochial schools....

The City's Bureau of Nonpublic School Reimbursement makes teacher assignments, and the instructors are supervised by field personnel, who attempt to pay at least one unannounced visit per month. The field supervisors, in turn, report to program coordinators, who also pay occasional unannounced supervisory visits to monitor Title I classes in the parochial schools. The professionals involved in the program are directed to avoid involvement with religious activities that are conducted within the private schools and to bar religious materials in their classrooms. All material and equipment used in the programs funded under Title I are supplied by the Government and are used only in those programs. The professional personnel are solely responsible for the selection of the students. Additionally, the professionals are informed that contact with private school personnel should be kept to a minimum. Finally, the administrators of the parochial schools are required to clear the classrooms used by the public school personnel of all religious symbols.

In 1978, six taxpayers commenced this action in the District Court for the Eastern District of New York, alleging that the Title I program administered by the City of New York violates the Establishment Clause."

On appeal the US Supreme Court affrimed the judgment of the 2nd US Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neuborne, Charles Sims, and Marc D. Stern; for Americans United for Separation of Church and State et al. by Lee Boothby; and for the Anti-Defamation Leaque of B'nai B'rith by Justin J. Finger, Meyer Eisenberg, and Jeffrey P. Sinensky.

Stanley Geller argued the cause and filed briefs for appellees in all cases.
Briefs of amici curiae urging reversal were filed for the Council for American Private Education et al. by Edward McGlynn Gaffney, Jr.; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for Citizens for Educational Freedom by Charles E. Rice; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Dennis Rapps, and Daniel D. Chazin; for Parents Rights, Inc., by John J. Donnelly; and for the United States Catholic Conference by Wilfred R. Caron and Mark E. Chopko.

Solicitor General Lee argued the cause for appellants in all cases. With him on the briefs for appellant in No. 84-238 were Acting Assistant Attorney General Willard, Deputy Solicitor General Bator, Anthony J. Steinmeyer, and Michael Jay Singer. Charles H. Wilson filed a brief for appellant in No. 84-237. Frederick A. O. Schwarz, Jr., Leonard Koerner, and Stephen J. McGrath filed briefs for appellant in No. 84-239.

"The New York City programs challenged in this case are very similar to the programs we examined in Ball. In both cases, publicly funded instructors teach classes composed exclusively of private school students in private school buildings. In both cases, an overwhelming number of the participating private schools are religiously affiliated. In both cases, the publicly funded programs provide not only professional personnel, but also all materials and supplies necessary for the operation of the programs. Finally, the instructors in both cases are told that they are public school employees under the sole control of the public school system.

Appellants attempt to distinguish this case on the ground that the City of New York... has adopted a system for monitoring the religious content of publicly funded Title I classes in the religious schools. At best, the supervision in this case would assist in preventing the Title I program from being used, intentionally or unwittingly, to inculcate the religious beliefs of the surrounding parochial school. But appellants' argument fails in any event, because the supervisory system established by the City of New York inevitably results in the excessive entanglement of church and state, an Establishment Clause concern distinct from that addressed by the effects doctrine. Even where state aid to parochial institutions does not have the primary effect of advancing religion, the provision of such aid may nonetheless violate the Establishment Clause owing to the nature of the interaction of church and state in the administration of that aid....

...First, as noted above, the aid is provided in a pervasively sectarian environment. Second, because assistance is provided in the form of teachers, ongoing inspection is required to ensure the absence of a religious message. In short, the scope and duration of New York City's Title I program would require a permanent and pervasive state presence in the sectarian schools receiving aid.

This pervasive monitoring by public authorities in the sectarian schools infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement. ...[T]he religious school, which has as a primary purpose the advancement and preservation of a particular religion must endure the ongoing presence of state personnel whose primary purpose is to monitor teachers and students in an attempt to guard against the infiltration of religious thought.

Despite the well-intentioned efforts taken by the City of New York, the program remains constitutionally flawed owing to the nature of the aid, to the institution receiving the aid, and to the constitutional principles that they implicate - that neither the State nor Federal Government shall promote or hinder a particular faith or faith generally through the advancement of benefits or through the excessive entanglement of church and state in the administration of those benefits."

The US Supreme Court affirmed the judgment of the 2nd US Circuit Court of Appeals.

Justice Vote: 5 Pro vs. 4 Con

  • Brennan, W. Pro (Wrote majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majoirity opinion)
  • Powell, L. Pro (Wrote concurring opinion)
  • Stevens, J.P. Pro (Joined majority opinion)
  • Burger, W. Con (Wrote dissenting opinion)
  • White, B. Con (Wrote dissenting opinion)
  • O'Connor, S.D. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)

The ACLU, as amicus curiae, urged affirmance of the 2nd U.S. Circuit Court of Appeals' judgment; the Supreme Court affirmed in a 5-4 vote, giving the ACLU an apparent win.