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Agostini v. Felton
Supreme Court of the United States (1996)


This amicus memorandum has one objective: to urge this Court not to delay, for procedural or technical reasons, in considering whether to overrule Aguilar v. Felton, 473 U.S. 402 (1985). In the decade since it was announced, that decision has wasted enormous public resources and crippled thousands of schoolchildren who need effective remedial programs to overcome learning disabilities. It has forced local school districts to conduct Title I programs in specially built movable classrooms that qualify as "neutral sites" at great public expense and has deprived children in certain schools including many Jewish Day Schools of remedial programs equivalent to those available to children enrolled in public schools.

A telling illustration of the effect of Aguilar was the situation of the schoolchildren in the Hasidic village of Kiryas Joel, which was before this Court in Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994). Because of the Aguilar decision, learning-disabled children in the Kiryas Joel School District were deprived of Title I programs until the New York Legislature adopted the statute that was before the Court in the Kiryas Joel case.

The colloquy between this Court and counsel representing Kiryas Joel demonstrated the effect of the 1985 decision on the issue:

JUSTICE O'CONNOR: One other question, preliminarily. I guess we wouldn't be here today but for this Court's decision in Aguilar.

MR. LEWIN: That's correct, Justice O'Connor. It's this Court's decision in Aguilar that precipitated the situation that required some action to be taken regarding the disabled children of Kiryas Joel.

QUESTION: If Aguilar?

QUESTION: And had we held?

QUESTION: Excuse me.

QUESTION: Otherwise, then the services would be provided with the Federal aid on the premises of the religious schools.

* * * *

JUSTICE KENNEDY: And these services had been provided in the private schools themselves, would you then nevertheless have had the constitutional option to have the district formed as it was here?

MR. LEWIN: No. If we agree that if, in fact, the services were being provided under the pre-Aguilar procedure, there would not have been any justification for the legislature saying we have to accommodate or we have to take this step. Under those circumstances, there would be much more basis to argue that this is only being done to provide some kind of authority to these citizens who happen to be religious.

See also Kiryas Joel, supra, 114 S. Ct. at 2498 (O'Connor, J., concurring), 2505 (Kennedy, J., concurring), 2514-15 (Scalia, J., dissenting).

Every school year that Aguilar remains on the books means deprivation or diminution in remedial programs for thousands of children who need what Title I offers. The fear of harmful consequences expressed by this amicus and others, by the parties, and by the dissenters in Aguilar (see 473 U.S. at 419 (Burger, C.J.), 430-31 (O'Connor, J.)) have been exceeded by the actual experience of the last ten years. Aguilar has had a devastating effect. (United States Department of Education, August 1993, "Chapter 1 Services to Private Religious School Students: A Supplemental Volume to the National Assessment of the Chapter 1 Program.") No reasons of policy or legal niceties warrant subjecting thousands of additional children to more years of continued deprivation while a potential new case winds its way through the courts.


To paraphrase a motto made famous more than 2,000 years ago by Cato the Elder: "Delenda est Aguilar." The sooner the better.

November 1996

Respectfully submitted,

Nathan Lewin
(Counsel of Record)
Miller, Cassidy, Larroca & Lewin, L.L.P.
2555 M Street, N.W.
Washington, D.C. 20037
(202) 293-6400

Dennis Rapps
National Jewish Commission on Law and Public Affairs
135 West 50th Street, 6th Floor
New York, New York 10020
(212) 641-8992

Attorneys for Amicus Curiae

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