CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #48

C. Financial Aid to Church-Related Schools and Church-Related Instruction

1. Elementary and Secondary Schools

AGOSTINI V. FELTON, p. 1778 (1997)

• What state action is at issue here, and how did it get to the Supreme Court for this decision?
• what were the features of the Title I program, which caused the Court to conclude in 1985 that it was unconstitutional (Aguilar v. Felton)?
• that it put public school teachers on the premises of sectarian institutions?
• that it required the teachers to be extensively instructed on how to avoid inculcation of religion, and monitored to assure compliance?
• what elements of the Court's 1985 analysis does it now find inappropriate?
• were the wrong criteria applied?
• were inappropriate factual assumptions made about sectarian school settings?
• are the following cases sustaining aid programs in fact inconsistent with Aguilar?
• Witters (1986): vocational tuition grant to blind person, used for a sectarian college to prepare for sectarian career
• Zobrest (1993): providing interpreter to deaf person, attending a sectarian school
• was the injunction issued by the DC after Aguilar too broad in any event?

Grand Rapids School District V. Ball (1985) (companion to Aguilar), cited in Agostini

• Two programs for publicly-financed secular instruction at sectarian schools:
• "shared time": public school teachers during regular hours
• "community education": sectarian faculty after hours for extra pay
• held, both programs invalid.
• the private schools in question are "pervasively sectarian"
• teachers "may knowingly or unwittingly" tailor content to sectarian goals of school - "symbolic union of government and religion in one sectarian enterprise" - no proof of actual inculcation needed

Bd. of Ed. of Kiryas Joel Village School District V. Grumet (1994), cited in Agostini p. 1780

· special school district est. by state law for religious community, to enable them to provide for special ed. services for their schools.  held invalid, transfer of governmental authority to religious body

MITCHELL v HELMS, p. 1783 (2000)

• How does this case differ, if at all, from Agostini?
• What is the focus of disagreement between Justice Thomas (plurality) and Justice O'Connor (concurrence)? Which view is the most accurate reflection of the majority opinion in Agostini?
• Wherein do Justices O'Connor (concurrence) and Souter (dissent) disagree? Is it on the applicable standard, the proper characterization of the facts of the case, or both?

ZELMAN V. SIMMONS-HARRIS, p. 1793 (2002)

• How does the school voucher program differ from the Aguilar/Agostini program?
• what kind of aid?
• who receives the aid?
• who decides what school to use the aid in?
• is it neutral toward religion or religious schools?
• is that enough to satisfy EC concerns?