Court may reconsider Aguilar v. Felton

Invoking an unusual procedure, the Clinton Administration, on October 30, 1996, asked the Supreme Court to review and overrule its 1985 decision Aguilar v. Felton. Aguilar held that it is violative of the Establishment Clause to permit public school teachers to travel into parochial school classrooms to offer federally financed remedial reading classes and counseling.

The federal program, Title I of the Elementary and Secondary Education Act of 1965, created this educational right for all educationally deprived students from low income families. Prior to Aguilar v. Felton, public school teachers in New York City went into parochial schools to teach remedial reading and to provide counseling. Aguilar held that this practice violated the Establishment Clause because of the excessive entanglement of church and state in the administration of the program. [For a fuller discussion of "excessive entanglement," see discussion of third prong of the Lemon Test (p.10 of this issue)]

According to the Court in Aguilar, excessive entanglement appeared in the following ways:

• The state aid was being administered in a pervasively sectarian environment.

• Because assistance was provided in the form of teachers, ongoing inspection was required to ensure the absence of a religious message.

• The religious school would be required to obey agents of the state when the agents made their inspection visits to monitor the subtle or overt presence of religious matter.

• Parochial school and public school administrative personnel had to work together in resolving matters related to schedules, classroom assignments, problems that arose in the implementation of the program, requests for additional services and dissemination of information about the program.

• The appearance (to the parochial school students participating in the program) of a joint venture between the public school and the parochial school.

The motion, filed by Solicitor General Walter Dellinger, utilized Rule 60(b) under the Federal Rules of Civil Procedure, which authorizes courts to release parties from earlier judgments on the basis of mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud, or a variety of other grounds. The "newly discovered evidence" in this case is that, for the New York City Board of Education, the cost of complying with the ruling has been "hundreds of million dollars" for transporting parochial school students to public schools for instruction or teaching those students in mobile vans near the parochial schools.

Stanley Geller, attorney for the National Committee for Public Education and Religious Liberty, who argued the case before the Court in 1984, believes "They're [New York City Board of Education] seeking to obtain not relief from a judgment, but redetermination of a judgment."

If the Court decides to accept this case, as Stanley Geller believes it will, there may well be a reversal, with Justices Rehnquist, O'Connor, Kennedy, Scalia, and Thomas in the majority and Justices Stevens, Ginsburg, Souter, and Breyer in the minority.

Court to rule on challenge to congress' religious freedom restoration act

Congress, in 1993, responded to the Supreme Court's 1990 ruling (Smith v. Employment Division) that held there is no special religious exemption from neutral, generally worded laws that happen to have a burdensome impact on religious exercise. The Court let stand the state of Oregon's practice of enforcing its narcotics laws against members of the Native American Church that uses the hallucinogenic drug peyote in its religious rituals.

In response, Congress passed the Religious Freedom Restoration Act which restored the Supreme Court's standard of review to its pre-Smith v. Employment Division (Oregon peyote case) standard. The standard under the 1993 act is that the state may not enforce laws that "substantially burden" the exercise of religion without demonstrating a "compelling" need to do so and without using "the least restrictive means of furthering that compelling governmental interest."

The challenger in this case is Boerne, Texas, a small city near San Antonio that was sued by the Roman Catholic Archbishop of San Antonio after it was denied a construction permit for a Catholic Church to expand into Boerne's historic district. Archbishop P.F. Flores invoked the Religious Freedom Restoration Act, and the city, in defending itself against the lawsuit argued that the 1993 law was unconstitutional.

Judge Lucius D. Bunton, 3rd, of the Federal District Court in San Antonio agreed with the city, and ruled in March 1995, that in passing the law, Congress had violated the constitutional separation of powers "by intruding on the power and duty of the judiciary" in effectively overturning a constitutional interpretation by the Supreme Court.

The case went to a three-judge panel of the United States Court of Appeals for the Fifth Circuit. The panel disagreed with the lower court and, instead, found that Congress had not usurped the judicial function but rather had exercised its own independent authority to enforce the Bill of Rights.

This case, which promises to be among the most closely watched of the term, will have far-reaching implications, not only for defining the scope of religious liberty in the United States, but for its determination of the issue of separation of powers, which is at the very heart of our constitutional democracy.