on overruling aguilar

[Abner Greene]

     Some preliminary thoughts on Agostini, having just digested lunch and
the opinions:
     (1) O'Connor's analysis of how Zobrest has undercut Aguilar
sufficiently for plaintiffs to use Rule 60(b)(5) is, in my view,
unpersuasive.  The Court's jurisprudence in cases involving public funds
for parochial schools has been a notable mess, but the Court has rather
consistently tried to apply what I have elsewhere called "risk analysis":
funding a course that can be easily influenced by religion is usually
unconstitutional (call this the "discretionary" realm); funding something
that looks not easily influenced by religion is usually upheld (call this the
"nondiscretionary" realm).  Of course the cases aren't even consistent
on this (Bd. of Educ. v. Allen and its progeny on textbooks create a real
inconsistency, in my view), but at least the Court always purported to do
the risk analysis.  Thus, in the relevant portion of Meek and in Grand
Rapids/Aguilar, the Court concluded that the risk was too great that
religion would influence the performance of public personnel in religious
schools.  Zobrest also did risk analysis, and EXPLICITLY distinguished
Meek and Grand Rapids (i.e. it did not suggest they were undercut),
stating, "the task of a sign-language interpreter [nondiscretionary] seems
to us quite different from that of a teacher or guidance counselor
[discretionary]."
     O'Connor writes, in Agostini, "The signer in Zobrest had the same
opportunity to inculcate religion in the performance of her duties as do
Title I employees, and there is no genuine basis upon which to confine
Zobrest's underlying rationale -- that public employees will not be
presumed to inculcate religion -- to sign-language interpreters."  I don't
get it, at least for 60(b)(5) purposes.  Whether or not one concludes,
today, that both categories of employees are equally likely to inculcate
religion, Zobrest itself says that the categories are distinct.  Meek, Grand
Rapids/Aguilar, and Zobrest all engaged in risk analysis, with the
outcome in Zobrest being different, but the methodology basically the
same.  Which leads to ...
     (2) The quotation immediately above includes an interesting phrase
that O'Connor repeats in the opinion:  "presumed" to inculcate religion.
(She says two paragraphs later that "there is no reason to presume that"
the Title I teachers in the Agostini setting will inculcate religion.)
Whatever one thinks of this conclusion (I agree with O'Connor, actually),
neither Meek nor Grand Rapids "presumed" such inculcation.  Here's
Meek:  "Whether the subject is remedial reading, advanced reading, or
simply reading, a teacher remains a teacher, and the danger that
religious doctrine will become intertwined with secular instruction
persists."  Here's Grand Rapids:  "Teachers in such an atmosphere may
well subtly (or overtly) conform their instruction to the environment in
which they teach ..."
     Again, whatever one thinks about Meek/Grand Rapids on this point,
those cases made points about risk -- there's a risk that a teacher will
exercise discretion toward the inculcation of religion in those settings.
O'Connor's argument in Agostini is that we shouldn't "presume" that the
public personnel will "depart from her assigned duties and ... embark on
religious indoctrination."  No, we shouldn't, but the Meek/Grand Rapids
point is different; those cases announce prophylactic measures against
risk, not orders against presumed indoctrination.
     I think O'Connor could have writtten a better opinion today had she
spoken (as she did in her Aguilar opinion) about "risk" rather than about
presumption.
     (3) It seems fairly clear that Lemon and its most direct progeny stand.
That is, the Court will still vote to strike down public funding of religious
school teachers (even for secular courses).  I say this because
O'Connor is the key vote; because she agreed to invalidate the
Community Education program in Grand Rapids, which involved (mostly)
funding of parochial school instructors; and because the last paragraph
of today's Part III.B.3 (the holding of the case) is quite carefully worded,
limited to funding public personnel in parochial schools.  On this point,
Souter is quite wrong to suggest that after today, a state "must in
constitutional principle be free to assume, or assume payment for, the
entire cost of instruction provided in any ostensibly secular subject in
any religious school."
     --  Abner Greene, Fordham Univ. School of Law