In Aguilar v. Felton, 473 U.S. 402 (1985), the Supreme Court agreed with a group of taxpayers and an appellate court that the City of New York had violated the establishment clause of the First Amendment by paying public school teachers to teach reading, reading skills, and remedial mathematics to educationally disadvantaged, low-income students in the city’s parochial schools with funds allotted under Title I of the Elementary and Secondary School Act of 1965.

Justice William J. Brennan Jr. spoke for the 5-4 majority, while Justice Lewis F. Powell Jr. wrote a concurring opinion. The four dissenting justices wrote separate opinions, with Justice William H. Rehnquist also joining in parts of Justice Sandra Day O’Connor’s dissent.

In the companion case Grand Rapids School District v. Ball, handed down the same day as Aguilar, the Court ruled unconstitutional the Shared Time and Community Education programs — in which taxpayer funds went to pay for public school employees to teach such classes as arts, crafts, and drama in rooms located in and leased from private schools — because they served the purpose of advancing religion in direct violation of the establishment clause of the First Amendment.

"Excessive entanglement" between church and state

The City of New York had attempted to avert such a decision by monitoring the religious content of the Title I classes, going so far as to provide all instructional materials and removing items that might have been construed as religious from the relevant classrooms. Nevertheless, the majority of the Court believed that the monitoring systems created “excessive entanglement” between church and state.

The program failed consequently to pass the third prong of the test established in Lemon v. Kurtzman (1971), the landmark case on separation of church and state. Justice Rehnquist’s dissent in Aguilar expanded on his position set forth a month earlier in Wallace v. Jaffree, an Alabama case in which the Court declared Alabama’s moment of silence law unconstitutional. Rehnquist accused the majority of trying to block all public aid to parochial schools.

Elaboration on Lemon's three-tier test

Aguilar and Ball were part of a body of cases in which state and local governments forced the Supreme Court to elaborate on restrictions that Lemon’s three-tier test had placed on public aid to parochial schools. In Lemon, the Court had struck down a state program that reimbursed parochial schools for costs associated with teaching math, foreign languages, the physical sciences, and physical education. Throughout the 1970s and into the 1980s, the justices had banned the use of public funds in parochial schools in most areas. In Meek v. Pittenger (1975), for instance, the Court overturned a program in which public school employees provided guidance, testing, and therapeutic services at parochial schools. The Court, however, had permitted the use of public funds in areas where religion did not play a specific role, such as in reimbursing schools for the costs of transportation and for state-required and standard testing.

Later, in Zobrest v. Catalina Foothills School District (1993), the Supreme Court reversed Aguilar, determining that public school teachers could teach in parochial schools under limited circumstances. Over time, the Court allowed various exceptions to the establishment clause on the grounds that specific programs promoted education rather than religion. The Court then overruled Aguilar in Agostini v. Felton (1997), writing that “Aguilar is not consistent with our subsequent Establishment Clause cases.”

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