We filed a brief in the Supreme Court asking it to abandon its previous holding in Aguilar v. Felton, 473 U.S. 402 (1985), which held that a government cannot provide federally-funded remedial and educational services through its employees to eligible students on the site of parochial schools. This decision has cost New York City alone many millions of dollars in providing unsatisfactory solutions to the problem of providing every student with the education he deserves.
In our amicus brief, we argued not only that the "entanglement" prong of the "Lemon test" should be abolished as a free-standing "test" under the Establishment Clause, but also that the reasons for doing so were particularly evident in Aguilar. In response to the so-called threat to the religious liberty rights of private schools and their students of "state inspectors prowling the halls of parochial schools" we stated that:
Plaintiffs' anxiety for what are best characterized as the free exercise rights of nonpublic schools and their students is misplaced. Individual parochial schools are free to refuse any or all government aid which they feel is intrusive. Moreover, both parochial schools and their students are certainly capable of enforcing their own Free Exercise rights should they be infringed. Taxpayer plaintiffs have no standing to try and do it for them.
In short, entanglement analysis, in general, is ill-suited for service as an Establishment Clause test, and Aguilar's version of it particularly so.
The Supreme Court agreed that Aguilar v. Felton is no longer good law on June 23, 1997. Agostini v. Felton, 117 S. Ct. 1997. Justices Souter, Stevens, Ginsburg, and Breyer (in part) dissented. On the issue of "entanglement," the Court held as follows:
We turn now to Aguilar's conclusion that New York City's Title I program resulted in an excessive entanglement between church and state. Whether a government aid program results in such an entanglement has consistently been an aspect of our Establishment Clause analysis. We have considered entanglement both in the course of assessing whether an aid program has an impermissible effect of advancing religion, Walz v. Tax Comm'n of City of New York, 397 U.S. 664 (1970), and as a factor separate and apart from "effect," Lemon v. Kurtzman, 403 U.S., at 612-613. Regardless of how we have characterized the issue, however, the factors we use to assess whether an entanglement is "excessive" are similar to the factors we use to examine "effect." That is, to assess entanglement, we have looked to "the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority." Id. at 615. Similarly, we have assessed a law's "effect" by examining the character of the institutions benefited (e.g., whether the religious institutions were "predominantly religious"), see Meek, 421 U.S., at 363-364; cf. Hunt v. McNair, 413 U.S. 734, 743-744 (1973), and the nature of the aid that the State provided (e.g., whether it was neutral and nonideological), see Everson, 330 U.S. at 18; Wolman, 433 U.S. at 244. Indeed, in Lemon itself, the entanglement that the Court found "independently" to necessitate the program's invalidation also was found to have the effect of inhibiting religion. See, e.g., 403 U.S. at 620 ("[W]e cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion ..."). Thus, it is simplest to recognize why entanglement is significant and treat it--as we did in Walz--as an aspect of the inquiry into a statute's effect.
Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, see id. at 614, and we have always tolerated some level of involvement between the two. Entanglement must be "excessive" before it runs afoul of the Establishment Clause. See, e.g., Bowen v. Kendrick, 487 U.S., at 615-617 (no excessive entanglement where government reviews the adolescent counseling program set up by the religious institutions that are grantees, reviews the materials used by such grantees, and monitors the program by periodic visits); Roemer v. Board of Public Works of Md., 426 U.S. 736, 764-765 (1976) (no excessive entanglement where state conducts annual audits to ensure that categorical state grants to religious colleges are not used to teach religion).
The pre-Aguilar Title I program does not result in an "excessive" entanglement that advances or inhibits religion. As discussed previously, the Court's finding of "excessive" entanglement in Aguilar rested on three grounds: (i) the program would require "pervasive monitoring by public authorities" to ensure that Title I employees did not inculcate religion; (ii) the program required "administrative cooperation" between the Board and parochial schools; and (iii) the program might increase the dangers of "political divisiveness." 473 U.S., at 413-414. Under our current understanding of the Establishment Clause, the last two considerations are insufficient by themselves to create an "excessive" entanglement. They are present no matter where Title I services are offered, and no court has held that Title I services cannot be offered off-campus. Aguilar, supra (limiting holding to on-premises services); . . . . Further, the assumption underlying the first consideration has been undermined. In Aguilar, the Court presumed that full-time public employees on parochial school grounds would be tempted to inculcate religion, despite the ethical standards they were required to uphold. Because of this risk pervasive monitoring would be required. But after Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment. Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required. There is no suggestion in the record before us that unannounced monthly visits of public supervisors are insufficient to prevent or to detect inculcation of religion by public employees. Moreover, we have not found excessive entanglement in cases in which States imposed far more onerous burdens on religious institutions than the monitoring system at issue here. See Bowen, supra, at 615-617.
To summarize, New York City's Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: it does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here. The same considerations that justify this holding require us to conclude that this carefully constrained program also cannot reasonably be viewed as an endorsement of religion. Accord, Witters, 474 U.S., at 488-489 ("[T]he mere circumstance that [an aid recipient] has chosen to use neutrally available state aid to help pay for [a] religious education [does not] confer any message of state endorsement of religion"); Bowen, supra, at 613-614 (finding no "'symbolic link'" when Congress made federal funds neutrally available for adolescent counseling). Accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids' Shared Time program, are no longer good law.
Agostini, 117 S. Ct. at 2014-2016.
Our brief is available on Westlaw at 1997 WL 86251 (U.S.Amicus.Brief).