First Things, October 1997.

The first key decision of the Supreme Court’s most recent term was Agostini v. Felton, handed down June 23, 1997, concerning the proper interpretation and application of the First Amendment’s prohibition of laws “respecting an establishment of religion.” Since 1947, the Court has held that this “establishment clause” forbids government aid to religion. And so with Aguilar v. Felton in 1985, the Court halted a New York City program that sent public school teachers into religiously sponsored private schools to provide congressionally mandated remedial education to disadvantaged children. The effect was to force schools across the nation to locate, at great expense, remedial programs at public schools or in vans parked outside religious schools.

Aguilar became an emblem of the Court’s “strict separationist” interpretation of the First Amendment. By 1994, however, a majority of Justices had indicated their willingness to reconsider the ruling, and with Agostini, New York revived the case—winning, in a 5-to-4 decision, a reversal of Aguilar. The Agostinimajority did not question the general ban of aid to religion, but they argued, in an opinion by Sandra Day O’Connor, that providing remedial education for parochial students in purely secular subjects does not constitute such aid. O’Connor repudiated Aguilar‘s presumption that the presence of public employees at parochial schools “inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” O’Connor further rejected the idea, central toAguilar, that an excessive entanglement of church and state arises either from the need to “monitor” public school teachers to ensure that they do not inculcate religion or from the “administrative cooperation” necessary when public school teachers work in a parochial school setting. The four dissenting Justices (David Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer) insisted that Aguilar had been rightly decided and that nothing in law or fact had changed to authorize a reconsideration of the case. Though Agostini does not decide the further question of the constitutionality of publicly funded vouchers to enable students to attend religiously affiliated schools, it seems to strengthen the case in favor of such programs….

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