Aguilar v. Felton/Concurrence Powell

JUSTICE POWELL, concurring.

I concur in the Court's opinions and judgments today in this case and in School District of Grand Rapids v. Ball, ante p. 373, holding that the aid to parochial schools involved in those cases violates the Establishment Clause of the First [p415] Amendment. I write to emphasize additional reasons why precedents of this Court require us to invalidate these two educational programs that concededly have "done so much good and little, if any, detectable harm." 739 F.2d 48, 72 (CA2 1984). The Court has previously recognized the important role of parochial schools:

"Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States, they relieve substantially the tax burden incident to the operation of public schools."

Mueller v. Allen, 463 U.S. 388, 401-402 (1983) (quoting Wolman v. Walter, 433 U.S. 229, 262 (1977) (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part)).

The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.

433 U.S. at 262. Regrettably, however, the Title I and Grand Rapids programs do not survive the scrutiny required by our Establishment Clause cases.

I agree with the Court that, in this case, the Establishment Clause is violated because there is too great a risk of government entanglement in the administration of the religious schools; the same is true in Ball, ante p. 373. As beneficial as the Title I program appears to be in accomplishing its secular goal of supplementing the education of deprived children, its elaborate structure, the participation of public school teachers, and the government surveillance required to ensure that public funds are used for secular purposes inevitably present a serious risk of excessive entanglement. Our cases have noted that "‘[t]he State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.'" Meek v. Pittenger, 421 U.S. 349, 371 (1975) (emphasis added) (quoting Lemon v. Kurtzman, 403 [p416] U.S. 602, 619 (1971)). This is true whether the subsidized teachers are religious school teachers, as in Lemon, or public school teachers teaching secular subjects to parochial school children at the parochial schools. Judge Friendly, writing for the unanimous Court of Appeals, agreed with this assessment of our cases. He correctly observed that the structure of the Title I program required the active and extensive surveillance that the City has provided, and, "under Meek, this very surveillance constitutes excessive entanglement even if it has succeeded in preventing the fostering of religion." 739 F.2d at 66.

This risk of entanglement is compounded by the additional risk of political divisiveness stemming from the aid to religion at issue here. I do not suggest that, at this point in our history, the Title I program or similar parochial aid plans could result in the establishment of a state religion. There likewise is small chance that these programs would result in significant religious or denominational control over our democratic processes. See Wolman v. Walter, supra, at 263 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). Nonetheless, there remains a considerable risk of continuing political strife over the propriety of direct aid to religious schools and the proper allocation of limited governmental resources. As this Court has repeatedly recognized, there is a likelihood whenever direct governmental aid is extended to some groups that there will be competition and strife among them and others to gain, maintain, or increase the financial support of government. E.g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 796-797 (1973); Lemon v. Kurtzman, supra, at 623. In States such as New York that have large and varied sectarian populations, one can be assured that politics will enter into any state decision to aid parochial schools. Public schools, as well as private schools, are under increasing financial pressure to meet real and perceived needs. Thus, any proposal to extend direct governmental [p417] aid to parochial schools alone is likely to spark political disagreement from taxpayers who support the public schools, as well as from nonrecipient sectarian groups, who may fear that needed funds are being diverted from them. In short, aid to parochial schools of the sort at issue here potentially leads to

that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.

Walz v. Tax Comm'n, 397 U.S. 664, 694 (1970) (opinion of Harlan, J.). Although the Court's opinion does not discuss it at length, see ante at 413, the potential for such divisiveness is a strong additional reason for holding that the Title I and Grand Rapids programs are invalid on entanglement grounds.

The Title I program at issue in this case also would be invalid under the "effects" prong of the test adopted in Lemon v. Kurtzman, supra. As has been discussed thoroughly in Ball, ante at 392-397, with respect to the Grand Rapids programs, the type of aid provided in New York by the Title I program amounts to a state subsidy of the parochial schools by relieving those schools of the duty to provide the remedial and supplemental education their children require. This is not the type of "indirect and incidental effect beneficial to [the] religious institutions" that we suggested in Nyquist would survive Establishment Clause scrutiny. 413 U.S. at 775. Rather, by directly assuming part of the parochial schools' education function, the effect of the Title I aid is "inevitably . . . to subsidize and advance the religious mission of [the] sectarian schools," id. at 779-780, even though the program provides that only secular subjects will [p418] be taught. As in Meek v. Pittenger, 421 U.S. 349 (1975), the secular education these schools provide goes "‘hand in hand'" with the religious mission that is the reason for the schools' existence. 421 U.S. at 366 (quoting Lemon v. Kurtzman, 403 U.S. at 657 (opinion of BRENNAN, J.)). Because of the predominantly religious nature of the schools, the substantial aid provided by the Title I program "inescapably results in the direct and substantial advancement of religious activity." Meek v. Pittenger, supra, at 366.

I recognize the difficult dilemma in which governments are placed by the interaction of the "effects" and entanglement prongs of the Lemon test. Our decisions require governments extending aid to parochial schools to tread an extremely narrow line between being certain that the "principal or primary effect" of the aid is not to advance religion, Lemon v. Kurtzman, supra, at 403 U.S. 612"]612, and avoiding excessive entanglement. Nonetheless, the Court has never foreclosed the possibility that some types of aid to parochial schools could be valid under the Establishment Clause. Mueller v. Allen, 463 U.S. at 393. Our cases have upheld evenhanded secular assistance to both parochial and public school children in some areas. E.g., ibid. (tax deductions for educational expenses); 612, and avoiding excessive entanglement. Nonetheless, the Court has never foreclosed the possibility that some types of aid to parochial schools could be valid under the Establishment Clause. Mueller v. Allen, 463 U.S. at 393. Our cases have upheld evenhanded secular assistance to both parochial and public school children in some areas. E.g., ibid. (tax deductions for educational expenses); Board of Education v. Allen, 392 U.S. 236"]392 U.S. 236 (1968) (provision of secular textbooks); 392 U.S. 236 (1968) (provision of secular textbooks); Everson v. Board of Education, 330 U.S. 1 (1947) (reimbursements for bus fare to school). I do not read the Court's opinion as precluding these types of indirect aid to parochial schools. In the cases cited, the assistance programs made funds available equally to public and nonpublic schools without entanglement. The constitutional defect in the Title I program, as indicated above, is that it provides a direct financial subsidy to be administered in significant part by public school teachers within parochial schools — resulting in both the advancement of religion and forbidden entanglement. If, for example, Congress could fashion a program of evenhanded financial assistance to both public and private schools that could [p419] be administered, without governmental supervision in the private schools, so as to prevent the diversion of the aid from secular purposes, we would be presented with a different question.

I join the opinions and judgments of the Court.

* Nothing that I say here should be construed as suggesting that a court inevitably must determine whether all three prongs of the Lemon test have been violated. See, e.g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 794 (1973). I discuss an additional infirmity of the programs at issue in these cases only to emphasize why even a beneficial program may be invalid because of the way it is structured.