In Agostini v. Felton, 521 U.S. 203 (1997), the Supreme Court held that New York did not violate the First Amendment’s establishment clause by administering a federally funded program in which public school teachers provided remedial instruction in private religious schools.

The case reconsidered two decisions — Aguilar v. Felton (1985), and Grand Rapids School District v. Ball (1985) — that the Court had rendered 12 years prior.

In Aguilar and Ball, the Court had relied on two prongs of the Lemon test — that state funding should neither advance nor prohibit religion and should not entangle government with religion in an “excessive” manner — to declare unconstitutional the New York program and a similar “shared time” arrangement in Grand Rapids, Michigan.

The Court’s 1985 decisions led to a lower court injunction against New York’s use of a Title I grant from the Elementary and Secondary Education Act of 1965 to fund the instructional program.

Several years later, a group of parents in New York, joined by state officials, sued to have the order lifted, claiming that Aquilar had become obsolete in light of subsequent precedents and had unnecessarily burdened the state. In Agostini, the Supreme Court agreed and explicitly reversed its Aguilar decision as well as the relevant portion of Grand Rapids v. Ball.

Did the Title 1 program advance religion?

Writing for the 5-4 Agostini majority, Justice Sandra Day O’Connor suggested that there was little disagreement that the Title 1 program served the secular purpose of serving disadvantaged children.

The more controversial matter was whether its primary effect had been to advance religion. On that question, O’Connor asserted that the New York funding arrangement, a supplement to regular instruction at the religious schools, did not implicate government in the inculcation of religion, as Aguilar had presumed, nor did it create a “symbolic union” of state and religion.

She also read the Court’s post-Aguilar decisions, particularly Zobrest v. Catalina Foothills School District (1993), as undermining past criteria for identifying an “excessive entanglement” of the state with religion (for example, that state monitoring of teachers would inevitably create unconstitutional church-state conflict). O’Connor essentially folded the excessive entanglement prong into the primary effect prong of the Lemon test. In other words, the entanglement analysis becomes part of the effects test.

Souter dissents, says "church-state partnerships" run afoul of First Amendment

In dissent, Justice David H. Souter insisted that the Court had misread its own post-Aguilar decisions and unreasonably rejected the “sensible” proscriptions in the Aguilar and Ball cases. He argued that the Title I money was, in effect, not supplementary to ordinary instruction, but a form of direct aid; that public school teachers faced real temptations to inculcate the religious sensibilities of the parochial schools they served; and that these kinds of church-state partnerships required a level of state monitoring that would likely run afoul of the establishment clause.

Justice Ruth Bader Ginsburg’s dissent took a slightly different tack, suggesting that the way the case had reached the Court — namely, as a request to reconsider a 12-year-old injunction against the Title I program — did not meet certain requirements of civil procedure. In the final analysis, however, the Court’s majority rejected the dissenters’ arguments, and Agostini went on to become a pivotal case in several subsequent decisions.

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