AGUILAR v. FELTON 473 U.S. 402 (1985) GRAND RAPIDS SCHOOL DISTRICT v. BALL 473 U.S. 373 (1985)

In companion cases a 5–4 Supreme Court held unconstitutional the assignment of public school teachers to parochial schools for special auxiliary services. In the Grand Rapids "shared time" case, Justice william j. brennan for the majority concerned himself only with the possibility that the teachers might advance religion by conforming their instruction to the environment of the private sectarian schools. The evidence did not validate his fear. In Aguilar, Brennan expressed the same fear but focused on the "excessive entanglement of church and state" which he asserted was present in New York City's program to implement the elementary and secondary education act passed by Congress in 1965. Advancing religion and excessive entanglement show violations of the first amendment ' s separation of church and state as construed by the Court in lemon v. kurtzman (1971), where it devised a test to determine whether government has passed a law respecting an establishment of religion.

The New York City program employed guidance counselors, psychologists, psychiatrists, social workers, and other specialists to teach remedial reading, mathematics, and English as a second language, and to provide guidance services. They worked part-time on parochial school premises, using only materials and equipment supplied by secular authorities; and, they acted under a ban against participation in religious activities. They worked under supervision similar to that which prevailed in public schools; the city monitored instruction by having supervisory personnel make unannounced "monthly" and "occasional" visits. Almost three-fourths of the educators in the program did not share the religious affiliation of any school in which they taught.

Brennan for the majority traveled a far path to find infirmities in the city's program. He expressed concern that the program might infringe the religious liberty of its intended beneficiaries. He saw government "intrusion into sacred matters" and the necessity of an "ongoing inspection" to ensure the absence of inculcation of religion in the instruction. The need for "a permanent and pervasive State presence in the sectarian schools receiving aid" infringed values protected by the establishment clause.

Thus, if government fails to provide for surveillance to ward off inculcation, its aid unconstitutionally advances the religious mission of the church schools; if government does provide for monitoring, even if only periodically, it gets excessively entangled with religion. Justice sandra day o'connor, dissenting, declared that the conclusion that the religious mission of the schools would be advanced by auxiliary services provided by the public was "not supported by the facts of this case." The nineteen-year record of the program showed not a single allegation of an attempt to indoctrinate religiously at public expense. The decision adversely affected disadvantaged parochial school children who needed special auxiliary services not provided by their parochial schools.

Leonard W. Levy
(1986)