Nos. 96-552 and 96-553


on writs of certiorari to the united states court of appeals for the second circuit

[June 23, 1997]

Justice Souter, with whom Justice Stevens and Justice Ginsburg join, and with whom Justice Breyer joins as to Part II, dissenting.

In this novel proceeding, petitioners seek relief from an injunction the District Court entered 12 years ago to implement our decision in Aguilar v. Felton, 473 U.S. 402 (1985). For the reasons given by Justice Ginsburg, see post, the Court's holding that petitioners are entitled to relief under Rule 60(b) is seriously mistaken. The Court's misapplication of the rule is tied to its equally erroneous reading of our more recent Establishment Clause cases, which the Court describes as having rejected the underpinnings of Aguilar and portions of Aguilar's companion case, School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985). The result is to repudiate the very reasonable line drawn in Aguilar and Ball, and to authorize direct state aid to religious institutions on an unparalleled scale, in violation of the Establishment Clause's central prohibition against religious subsidies by the government.

I respectfully dissent.

In both Aguilar and Ball, we held that supplemental instruction by public school teachers on the premises of religious schools during regular school hours violated the Establishment Clause. Aguilar, of course, concerned the very school system before us here and the same Title I program at issue now, see ante, at 2-3, under which local educational agencies receive public funds to provide remedial education, guidance and job counseling to eligible students including those attending religious schools. Immediately before Aguilar, New York City used Title I funds to provide guidance services and classes in remedial reading, remedial mathematics, and English as a second language to students at religious schools, as it did by sending employees of the public school system, including teachers, guidance counselors, psychologists, and social workers into the religious schools. See Aguilar, supra, at 406. Ball involved a program similar in many respects to Title I called Shared Time, [n.1] under which the local school district provided religious school students with "supplementary" classes in their religious schools, taught by teachers who were full time employees of the public schools, in subjects including remedial math and reading, art, music, and physical education. See Ball, 473 U. S., at 375.

We held that both schemes ran afoul of the Establishment Clause. The Shared Time program had the impermissible effect of promoting religion in three ways: first, state paid teachers conducting classes in a sectarian environment might inadvertently (or intentionally) manifest sympathy with the sectarian aims to the point of using public funds for religious educational purposes, id., at 388; second, the government's provision of secular instruction in religious schools produced a symbolic union of church and state that tended to convey a message to students and to the public that the State supported religion, id., at 390-392; and, finally, the Shared Time program subsidized the religious functions of the religious schools by assuming responsibility for teaching secular subjects the schools would otherwise be required to provide, id., at 395-396. Our decision in Aguilar noted the similarity between the Title I and Shared Time programs, and held that the system New York City had adopted to monitor the religious content of Title I classes held in religious schools would necessarily result in excessive entanglement of church and state, and violate the Establishment Clause for that reason. See Aguilar, supra, at 412-414.

As I will indicate as I go along, I believe Aguilar was a correct and sensible decision, and my only reservation about its opinion is that the emphasis on the excessive entanglement produced by monitoring religious instructional content obscured those facts that independently called for the application of two central tenets of Establishment Clause jurisprudence. The State is forbidden to subsidize religion directly and is just as surely forbidden to act in any way that could reasonably be viewed as religious endorsement. See, e.g., Ball, 473 U. S., at 385 ("Although Establishment Clause jurisprudence is characterized by few absolutes, the Clause does absolutely prohibit government financed or government sponsored indoctrination into the beliefs of a particular religious faith"); id., at 389 ("Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any--or all--religious denominations as when it attempts to inculcate specific religious doctrines.") (citing Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)).

As is explained elsewhere, the flat ban on subsidization antedates the Bill of Rights and has been an unwavering rule in Establishment Clause cases, qualified only by the conclusion two Terms ago that state exactions from college students are not the sort of public revenues subject to the ban. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. __, __ (1995) (slip op., at 4-14) (Souter, J., dissenting); see also id., at __ (slip op., at 5) (O'Connor, J., concurring) . The rule expresses the hard lesson learned over and over again in the American past and in the experiences of the countries from which we have come, that religions supported by governments are compromised just as surely as the religious freedom of dissenters is burdened when the government supports religion. "When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being `taint[ed] . . . with corrosive secularism.' The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation." Lee v. Weisman, 505 U.S. 577, 608 (1992) (Blackmun, J., concurring) (quoting Ball, supra, at 385); see also Memorial and Remonstrance against Religious Assessments 1785, in The Complete Madison 299, 309 (S. Padover ed. 1953) ("Religion flourishes in greater purity, without than with the aid of Gov[ernment]"); M. Howe, The Garden and the Wilderness 6 (1965) (noting Roger Williams's view that "worldly corruptions . . . might consume the churches if sturdy fences against the wilderness were not maintained"). The ban against state endorsement of religion addresses the same historical lessons. Governmental approval of religion tends to reinforce the religious message (at least in the short run) and, by the same token, to carry a message of exclusion to those of less favored views. See, e.g., Ball, supra, at 390 ("[A]n important concern of the effects test is whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices"); Lee, supra, at 606-607 (Blackmun, J., concurring) ("When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some"); Engel v. Vitale, 370 U.S. 421, 429 (1962) ("Anguish, hardship and bitter strife" result "when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval"). The human tendency, of course, is to forget the hard lessons, and to overlook the history of governmental partnership with religion when a cause is worthy, and bureaucrats have programs. That tendency to forget is the reason for having the Establishment Clause (along with the Constitution's other structural and libertarian guarantees), in the hope of stopping the corrosion before it starts.

These principles were violated by the programs at issue in Aguilar and Ball, as a consequence of several significant features common to both Title I, as implemented in New York City before Aguilar, and the Grand Rapids Shared Time program: each provided classes on the premises of the religious schools, covering a wide range of subjects including some at the core of primary and secondary education, like reading and mathematics; while their services were termed "supplemental," the programs and their instructors necessarily assumed responsibility for teaching subjects that the religious schools would otherwise have been obligated to provide, cf. Wolman v. Walter, 433 U.S. 229, 243 (1977) (provision of diagnostic tests to religious schools provides only an incidental benefit); the public employees carrying out the programs had broad responsibilities involving the exercise of considerable discretion, cf. Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 13 (1993) (sign language interpreter must transmit exactly what is said); Lemon v. Kurtzman, 403 U.S. 602, 616-617 (1971) (distinguishing, for Establishment Clause purposes, books provided by the State to students from teachers paid by the State); while the programs offered aid to nonpublic school students generally (and Title I went to public school students as well), participation by religious school students in each program was extensive, cf. Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 488 (1986) (only one student sought state tuition assistance for religious education); and, finally, aid under Title I and Shared Time flowed directly to the schools in the form of classes and programs, as distinct from indirect aid that reaches schools only as a result of independent private choice, cf. Zobrest, supra, at 12 ("[A]ny attenuated financial benefit that parochial schools do ultimately receive . . . is attributable to `the private choices of individual parents' ") (quoting Mueller v. Allen, 463 U.S. 388, 400 (1983)); Witters, supra, at 487 (aid issued to students reached religious institution "only as a result of the genuinely independent and private choices of aid recipients"); Mueller, supra, at 399-400 (same).

What, therefore, was significant in Aguilar and Ball about the placement of state paid teachers into the physical and social settings of the religious schools was not only the consequent temptation of some of those teachers to reflect the schools' religious missions in the rhetoric of their instruction, with a resulting need for monitoring and the certainty of entanglement. See Aguilar, 473 U. S., at 412-414 (monitoring); Ball, 473 U. S., at 388 (risk of indoctrination). What was so remarkable was that the schemes in issue assumed a teaching responsibility indistinguishable from the responsibility of the schools themselves. The obligation of primary and secondary schools to teach reading necessarily extends to teaching those who are having a hard time at it, and the same is true of math. Calling some classes remedial does not distinguish their subjects from the schools' basic subjects, however inadequately the schools may have been addressing them.

What was true of the Title I scheme as struck down in Aguilar will be just as true when New York reverts to the old practices with the Court's approval after today. There is simply no line that can be drawn between the instruction paid for at taxpayers' expense and the instruction in any subject that is not identified as formally religious. While it would be an obvious sham, say, to channel cash to religious schools to be credited only against the expense of "secular" instruction, the line between "supplemental" and general education is likewise impossible to draw. If a State may constitutionally enter the schools to teach in the manner in question, it must in constitutional principle be free to assume, or assume payment for, the entire cost of instruction provided in any ostensibly secular subject in any religious school. This Court explicitly recognized this in Ball, supra, at 394, 396, and although in Aguilar the Court concentrated on entanglement it noted the similarity to Ball, see Aguilar, supra, at 409, and Judge Friendly's opinion for the Second Circuit made it expressly clear that there was no stopping place in principle once the public teacher entered the religious schools to teach their secular subjects. See Felton v. Secretary, U. S. Dept. of Education, 739 F. 2d 48, 66-67 (CA2 1984), aff'd sub. nom. Aguilar v. Felton, 473 U.S. 402 (1985).

It may be objected that there is some subsidy in remedial education even when it takes place off the religious premises, some subsidy, that is, even in the way New York City has administered the Title I program after Aguilar. In these circumstances, too, what the State does, the religious school need not do; the schools save money and the program makes it easier for them to survive and concentrate their resources on their religious objectives. This argument may, of course, prove too much, but if it is not thought strong enough to bar even off premises aid in teaching the basics to religious school pupils (an issue not before the Court in Aguilar or today), it does nothing to undermine the sense of drawing a line between remedial teaching on and off premises. The off premises teaching is arguably less likely to open the door to relieving religious schools of their responsibilities for secular subjects simply because these schools are less likely (and presumably legally unable) to dispense with those subjects from their curriculums or to make patently significant cut backs in basic teaching within the schools to offset the outside instruction; if the aid is delivered outside of the schools, it is less likely to supplant some of what would otherwise go on inside them and to subsidize what remains. On top of that, the difference in the degree of reasonably perceptible endorsement is substantial. Sharing the teaching responsibilities within a school having religious objectives is far more likely to telegraph approval of the school's mission than keeping the State's distance would do. This is clear at every level. As the Court observed in Ball, "[t]he symbolism of a union between church and state [effected by placing the public school teachers into the religious schools] is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice." Ball, supra, at 390. When, moreover, the aid goes overwhelmingly to one religious denomination, minimal contact between state and church is the less likely to feed the resentment of other religions that would like access to public money for their own worthy projects.

In sum, if a line is to be drawn short of barring all state aid to religious schools for teaching standard subjects, the Aguilar-Ball line was a sensible one capable of principled adherence. It is no less sound, and no less necessary, today.

The Court today ignores this doctrine and claims that recent cases rejected the elemental assumptions underlying Aguilar and much of Ball. But the Court errs. Its holding that Aguilar and the portion of Ball addressing the Shared Time program are "no longer good law," ante, at 29, rests on mistaken reading.

Zobrest v. Catalina Foothills School Dist., 509 U. S., at 13-14, held that the Establishment Clause does not prevent a school district from providing a sign language interpreter to a deaf student enrolled in a sectarian school. The Court today relies solely on Zobrest to support its contention that we have "abandoned the presumption erected in Meek [v. Pittenger, 421 U.S. 349 (1975)] and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state sponsored indoctrination or constitutes a symbolic union between government and religion." Ante, at 17. Zobrest, however, is no such sanction for overruling Aguilar or any portion of Ball.

In Zobrest the Court did indeed recognize that the Establishment Clause lays down no absolute bar to

placing public employees in a sectarian school, Zobrest, 509 U. S., at 13, and n. 10, but the rejection of such a per se rule was hinged expressly on the nature of the employee's job, sign language interpretation (or signing) and the circumscribed role of the signer. On this point (and without reference to the facts that the benefited student had received the same aid before enrolling in the religious school and the employee was to be assigned to the student not to the school) the Court explained itself this way: "[T]he task of a sign language interpreter seems to us quite different from that of a teacher or guidance counselor. . . . Nothing in this record suggests that a sign language interpreter would do more than accurately interpret whatever material is presented to the class as a whole. In fact, ethical guidelines require interpreters to `transmit everything that is said in exactly the same way it was intended.' " Id., at 13. The signer could thus be seen as more like a hearing aid than a teacher, and the signing could not be understood as an opportunity to inject religious content in what was supposed to be secular instruction. Zobrest accordingly holds only that in these limited circumstances where a public employee simply translates for one student the material presented to the class for the benefit of all students, the employee's presence in the sectarian school does not violate the Establishment Clause. Id., at 13-14. Cf. Lemon v. Kurtzman, 403 U.S. 602, 617 (1971) ("[T]eachers have a substantially different ideological character from books [and] [i]n terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not").

The Court, however, ignores the careful distinction drawn in Zobrest and insists that a full time public employee such as a Title I teacher is just like the signer, asserting that "there is no reason to presume that, simply because she enters a parochial school classroom, . . . [this] teacher will depart from her assigned duties and instructions and embark on religious indoctrination . . . ." Ante, at 20. Whatever may be the merits of this position (and I find it short on merit), it does not enjoy the authority of Zobrest. The Court may disagree with Ball's assertion that a publicly employed teacher working in a sectarian school is apt to reinforce the pervasive inculcation of religious beliefs, but its disagreement is fresh law.

The Court tries to press Zobrest into performing another service beyond its reach. The Court says that Ball and Aguilar assumed "that the presence of a public employee on private school property creates an impermissible `symbolic link' between government and religion," ante, at 18, and that Zobrest repudiated this assumption. Ante, at 17-18. First, Ball and Aguilar said nothing about the "mere presence" of public employees at religious schools. It was Ball that specifically addressed the point and held only that when teachers employed by public schools are placed in religious schools to provide instruction to students during the school day a symbolic union of church and state is created and will reasonably be seen by the students as endorsement, see Ball, 473 U. S., at 390-392; Aguilar adopted the same conclusion by reference, see Aguilar, 473 U. S., at 409. Zobrest did not, implicitly or otherwise, repudiate the view that the involvement of public teachers in the instruction provided within sectarian schools looks like a partnership or union and implies approval of the sectarian aim. On the subject of symbolic unions and the strength of their implications, the lesson of Zobrest is merely that less is less.

The Court next claims that Ball rested on the assumption that "any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decision making." Ante, at 15-16. After Ball, the opinion continues, the Court departed from the rule that "all government aid that directly aids the educational function of religious schools is invalid. " Ante, at 19. But this mischaracterizes Ball's discussion on the point, and misreads Witters and Zobrest as repudiating the more modest proposition on which Ball in fact rested.

Ball did not establish that "any and all" such aid to religious schools necessarily violates the Establishment Clause. It held that the Shared Time program subsidized the religious functions of the parochial schools by taking over a significant portion of their responsibility for teaching secular subjects. See Ball, supra, at 396-397. The Court noted that it had "never accepted the mere possibility of subsidization . . . as sufficient to invalidate an aid program," and instead enquired whether the effect of the proffered aid was "direct and substantial" (and, so, unconstitutional) or merely "indirect and incidental," (and, so, permissible) emphasizing that the question "is one of degree." Ball, supra, at 394 (quoting Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 784-785, n. 39 (1973), and Zorach v. Clauson, 343 U.S. 306, 314 (1952)). Witters and Zobrest did nothing to repudiate the principle, emphasizing rather the limited nature of the aid at issue in each case as well as the fact that religious institutions did not receive it directly from the State. In Witters, the Court noted that the State would issue the disputed vocational aid directly to one student who would then transmit it to the school of his choice, and that there was no record evidence that "any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education." Witters, 474 U. S., at 488. Zobrest also presented an instance of a single beneficiary, see Zobrest, 509 U. S., at 4, and emphasized that the student (who had previously received the interpretive services in a public school) determined where the aid would be used, that the aid at issue was limited, and that the religious school was "not relieved of an expense that it otherwise would have assumed in educating its students." See id., at 12.

It is accordingly puzzling to find the Court insisting that the aid scheme administered under Title I and considered in Aguilar was comparable to the programs in Witters and Zobrest. Instead of aiding isolated individuals within a school system, New York City's Title I program before Aguilar served about 22,000 private school students, all but 52 of whom attended religious schools. See App. 313-314. [n.2] Instead of serving individual blind or deaf students, as such, Title I as administered in New York City before Aguilar (and as now to be revived) funded instruction in core subjects (remedial reading, reading skills, remedial mathematics, English as a second language) and provided guidance services. See Aguilar, 473 U. S., at 406. Instead of providing a service the school would not otherwise furnish, the Title I services necessarily relieved a religious school of "an expense that it otherwise would have assumed," Zobrest, supra, at 12, and freed its funds for other, and sectarian uses.

Finally, instead of aid that comes to the religious school indirectly in the sense that its distribution results from private decisionmaking, a public educational agency distributes Title I aid in the form of programs and services directly to the religious schools. In Zobrest and Witters, it was fair to say that individual students were themselves applicants for individual benefits on a scale that could not amount to a systemic supplement. But under Title I, a local educational agency (which in New York City is the Board of Education) may receive federal funding by proposing programs approved to serve individual students who meet the criteria of need, which it then uses to provide such programs at the religious schools, see App. 28-29, 38, 60, 242-243; students eligible for such programs may not apply directly for Title I funds. [n.3] The aid, accordingly, is not even formally aid to the individual students (and even formally individual aid must be seen as aid to a school system when so many individuals receive it that it becomes a significant feature of the system, see Wolman v. Walter, 433 U. S., at 264 (opinion of Powell, J.)).

In sum, nothing since Ball and Aguilar and before this case has eroded the distinction between "direct and substantial" and "indirect and incidental." That principled line is being breached only here and now.

The Court notes that aid programs providing benefits solely to religious groups may be constitutionally suspect, while aid allocated under neutral, secular criteria is less likely to have the effect of advancing religion. Ante, at 25. The opinion then says that Ball and Aguilar "gave this consideration no weight," ibid., and accordingly conflict with a number of decisions. But what exactly the Court thinks Ball and Aguilar inadequately considered is not clear, given that evenhandedness is a necessary but not a sufficient condition for an aid program to satisfy constitutional scrutiny. Title I services are available to all eligible children regardless whether they go to religious or public schools, but, as I have explained elsewhere and am not alone in recognizing, see, e.g., Rosenberger, 515 U. S., at __ __ (slip op., at 1-2) (O'Connor, J., concurring); id., at __ __ (slip op., at 18-24) (Souter, J., dissenting); see also Bowen v. Kendrick, 487 U.S. 589, 614, 621 (1988), that fact does not define the reach of the Establishment Clause. If a scheme of government aid results in support for religion in some substantial degree, or in endorsement of its value, the formal neutrality of the scheme does not render the Establishment Clause helpless or the holdings in Aguilar and Ball inapposite.

Finally, there is the issue of precedent. Stare decisis is no barrier in the Court's eyes because it reads Aguilar and Ball for exaggerated propositions that Witters and Zobrest are supposed to have limited to the point of abandoned doctrine. Cf. Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989). The Court's dispensation from stare decisis is, accordingly, no more convincing than its reading of those cases. Since Aguilar came down, no case has held that there need be no concern about a risk that publicly paid school teachers may further religious doctrine; no case has repudiated the distinction between direct and substantial aid and aid that is indirect and incidental; no case has held that fusing public and private faculties in one religious school does not create an impermissible union or carry an impermissible endorsement; and no case has held that direct subsidization of religious education is constitutional or that the assumption of a portion of a religious school's teaching responsibility is not direct subsidization.

The continuity of the law, indeed, is matched by the persistence of the facts. When Aguilar was decided everyone knew that providing Title I services off the premises of the religious schools would come at substantial cost in efficiency, convenience, and money. Title I had begun off the premises in New York, after all, and dissatisfaction with the arrangement was what led the City to put the public school teachers into the religious schools in the first place. See Felton v. Secretary, U. S. Dept. of Education, 739 F. 2d, at 51. When Aguilar required the end of that arrangement, conditions reverted to those of the past and they have remained unchanged: teaching conditions are often poor, it is difficult to move children around, and it costs a lot of money. That is, the facts became once again what they were once before, as everyone including the Members of this Court knew they would be. No predictions have gone so awry as to excuse the case from the claim of precedent, see Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412 (1932) (Brandeis, J., dissenting), let alone excuse the Court from adhering to its own prior decision in this very case.

That is not to deny that the facts just recited are regrettable; the object of Title I is worthy without doubt, and the cost of compliance is high. In the short run there is much that is genuinely unfortunate about the administration of the scheme under Aguilar's rule. But constitutional lines have to be drawn, and on one side of every one of them is an otherwise sympathetic case that provokes impatience with the Constitution and with the line. But constitutional lines are the price of constitutional government.


1 School Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985), also invalidated a separate program called Community Education that is distinct from the Title I program at issue today. I do not understand the Court's discussion to implicate Ball's evaluation of the Community Education program.

2 The Court's refusal to recognize the extent of student participation as relevant to the constitutionality of an aid program, see ante, at 23, ignores the contrary conclusion in Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481 (1986), on this very point. See id., at 488 (noting, among relevant factors, that "[n]o evidence ha[d] been presented indicating that any other person ha[d] ever sought to finance religious education or activity pursuant to the State's program").

3 For this reason, the Court's attempted analogy between Title I and IDEA fails, see ante, at 22; James Zobrest, unlike students receiving Title I services, applied individually for the interpretative services at issue in Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 4 (1993).