521 U.S. 203 (1997), argued 15 Apr. 1997, decided 23 June 1997 by vote of 5 to 4; O'Connor for the Court, Souter and Ginsburg in dissent. Few issues have proved more vexing for the modern Supreme Court than the relationship between church and state. In 1985 the Court had reached something of a high‐water mark in its efforts to drive a clear constitutional wedge between the two. By a 5 to 4 majority the justices in Aguilar v. Felton and its companion case of School District of Grand Rapids v. Ball (1985) gave a new interpretation to Title I of the Elementary and Secondary Education Action of 1965. Title I provided federal funds to public schools for remedial reading and math instruction to children from poor families without regard to the school they attended. Under this law, public school teachers entered parochial schools to teach, often doing so on a voluntary basis. The Supreme Court in Aguilar, however, decided that the presence of public school teachers in parochial schools amounted to an unconstitutional entanglement of church and state in violation of the
A majority of the justices themselves had invited the litigation that resulted in the Agostini decision. In Kiryas Joel Board of Education v. Grumet (1994), the justices indicated that they would welcome an appeal that would result in a reconsideration of Aguilar and, perhaps, its overruling. A year later the School Board of the City of New York responded to this invitation by taking the unusual step of filing a motion in Federal District Court in Brooklyn under Rule 60(b) of the Federal Rules of Civil Procedure. That particular rule permitted a party to seek a motion to lift a court order when circumstances had so changed that the effect of the original order had become inequitable. Both the federal district court and the United States Court of Appeals for the Second Circuit refused to grant the motion because they said only the Supreme Court could reverse its own precedents. The justices accepted the case but refused to apply Rule 60(b) to their decision, recognizing that if they did so, they would invite a flood of appeals from parties who had concluded that the justices were ready to abandon a precedent.
Justice Sandra Day O'Connor's opinion instead insisted that the Court had already overruled Aguilar. Citing two cases, Witters v. Washington (1986) and Zobrest v. Catalina Foothills School District (1993), a narrow majority repudiated several of the major presumptions applied in Aguilar. First, the Court disavowed the view that all government aid directed to the educational function of religious schools is unconstitutional. Public money could be made available to all students for secular purposes without violating the Establishment Clause. Second, it was entirely possible for on‐premise programs conducted by public school teachers to be free of any religious connection. Third, O'Connor found that school boards were competent to erect administrative guidelines that would ensure that teachers performed in a neutral fashion without resorting to excessive monitoring and hence an entanglement of church and state. Finally, according to O'Connor, there was no reason to believe that the parents of secular school students would conclude that the presence of public school teachers in sectarian classrooms meant that the New York City Board of Education had placed its stamp of approval on religious education.
The dissenters, led by Justice David Souter, accused the majority of playing fast and loose with earlier rulings. According to Souter, the previous decisions cited by the majority were limited rulings; the Court had not overturned Aguilar. Moreover, Souter continued, the Court's new ruling would authorize direct state aid to religious institutions and invite massive violations of the First Amendment's Establishment Clause.
The decision may have produced more smoke than light. As Justice O'Connor asserted, the law in question had never provided public funds to religious schools, and the overall effect was to help needy students suffering from academic deficiencies. Both proponents and opponents of various school voucher programs, which permit parents to pay parochial school tuition with public funds, placed their own conflicting meanings on the decision. Yet O'Connor's narrowly crafted opinion seemed an uncertain predictor of what the justices might do in a future case that raised the constitutional fate of vouchers directly.
— Kermit L. Hall
