Berkley Center

In Agostini v. Felton, the Supreme Court overruled two of its prior Establishment Clause cases. In Agostini, the Court recognized that its Establishment Clause jurisprudence had evolved to the point that both Aguilar v. Felton and School District of Grand Rapids v. Ball were no longer good laws. At issue in this case was the same state program the Court held unconstitutional in Aguilar. That program provided public employees to teach remedial classes at religious and other private schools. The Court concluded that its decisions in Zobrest v. Catalina Foothills School District and Witters v. Washington Department of Services for the Blind undermined the key assumptions underlying Aguilar and Ball. First, in Zobrest the Court abandoned the presumption in Aguilar that public employees on sectarian premises inevitably inculcate religion in their work. Because such indoctrination is no longer presumed, invasive monitoring programs like the one the Court envisioned in Aguilar would not be necessary, and, therefore, would not create excessive entanglement of church and state. Second, in both Zobrest and Witters, the Court departed from the rule in Ball that all government aid given directly to the educational function of religious schools is always invalid; the Court observed that a more nuanced analysis of whether a program impermissibly advances religion is necessary to determine whether it violates the Establishment Clause. The Court held that government aid has the effect of advancing religion if it results in governmental indoctrination, defines its recipients by reference to religion, or creates an excessive entanglement. Because the program at issue did not result in governmental indoctrination, was based on neutral criteria, and did not create excessive entanglement, the program did not violate the Establishment Clause.