Blowing hot and cold on church and state

0 Comments | Insight on the News, July 21, 1997 | by David Wagner

Last week, the Supreme Court struck down the Religious Freedom Restoration Act, or RFRA. In that act, Congress used its powers under Section 5 of the 14th Amendment -- stretched them past the breaking point, the high court said -- to try to protect the principles inherent in the First Amendment's free-exercise clause.

This decision has thrown religious-liberty advocates into consternation. But while we try to figure out how to react, let us not forget to note how the court's jurisprudence is changing -- for the better -- on the First Amendment's other religion clause, the one prohibiting a state "establishment of religion."

On June 23, in Agostini vs. Felton, the court overruled a 1985 case called Aguilar vs. Felton. To see what these cases are about, go to almost any religious school in a lower-income neighborhood. There, outside the school, it is likely that you will see a trailer. In this trailer, public-school teachers give remedial instruction to special-needs students in the religious schools, provided those students both want and qualify for such instruction. The program is known as Title I of the Elementary and Secondary Education Act of 1965. Public-school kids who both need and want Title I instruction can get it at their schools, but the act is broader: It offers instruction to private-school kids as well.

The problem all along has been: How do you get the Title I teachers to the religious-school students? That's where those trailers come in -- or, rather, stay outside -- because that's what the Supreme Court in 1985 said Title I teachers had to do.

You see, before 1985, Title I teachers would go into religious schools and work with special-needs kids under guidelines separating them from the school's religious mission. All concerned were cool with this: The public-school teachers administering Title I instruction were comfortable doing it inside religious schools, the religious schools did not believe the presence of federally funded public-school teachers compromised their religious mission (if they did, they were free to toss them out) and the kids were getting the instruction to which Congress had entitled them without being forced to attend public school just to get it. Everybody was happy -- except some of the professional establishment-clause plaintiffs among us, who sued.

So, in Aguilar, the court ruled that the presence of Title I teachers in religious schools created an impermissible symbolic union of church and state and that the very guidelines that had been adopted to prevent the Title I teachers from furthering the specifically religious mission of the schools actually caused an establishment-clause violation, because they created an "excessive entanglement" of church and state.

Hence, the trailers: Sometimes called "Aguilar trailers," they were the least-expensive way of providing Title I instruction to students while still complying with the Aguilar decision. (Constitutional tourists in the Washington area can check out a genuine Aguilar trailer in the parking lot of St. Charles Borromeo School in Arlington, Va., near the corner of Fairfax Drive and Kirkwood Road -- unless, following Monday's decision, it already is gone.)

Then, in the early 1990s, the New York Board of Education, which is charged with administering Title I and which was shelling out an awful lot for trailers, noticed a new development in the Supreme Court's establishment-clause cases: The court was stepping back from its older view that religion had cooties. Most notably in the 1993 case of Zobrest vs. Catalina Foothills School District, the court held that the establishment clause was not violated when a state paid for an interpreter for a deaf student in a religious school. Plus, in a spate of dissents and concurrences in another case, five justices (a majority) suggested that Aguilar should be "reconsidered" -- courtspeak for "toast."

So the New York Board went to court to get out from under the injunction it had been under since Aguilar. The case worked its way through the system, and last Monday the Agostini decision was handed down. The court explicitly overruled Aguilar and dissolved the injunction based on it. The teachers now can come out of the trailers and into the schools without fear that doing so creates a de facto state church.

The Agostini opinion was authored by Justice Sandra Day O'Connor, known for her attempts to find a middle ground in the court's contentious religion cases. "There is no reason to presume," she writes, "that, simply because she enters a parochial-school classroom, a full-time public employee such as a Title I teacher will depart from her assigned duties and instructions and embark on religious indoctrination, any more than there was a reason in Zobrest to think an interpreter would inculcate religion by altering her translation of classroom lectures."

O'Connor often is quick to see an unconstitutional "endorsement of religion" when a government action seeks to accommodate religion. But for her, Agostini is not such a case. Under Aguilar, she explained, "the only difference between a constitutional program and an unconstitutional one is the location of the classroom, since the degree of cooperation between Title I instructors and parochial-school faculty is the same no matter where the services are provided. We do not see any perceptible (let alone dispositive) difference in the degree of symbolic union between a student receiving remedial instruction in a classroom on his sectarian school's campus and one receiving instruction in a van parked just at the school's curbside. To draw this line based solely on the location of the public employee is neither `sensible' nor `sound,' and the Court in Zobrest rejected it."