KURTZMAN

In Agostini v. Felton, 521 U.S. 203 (1997), the Court described in detail the reasoning which a Court majority had utilized in arriving at its holding in Meek v. Pittenger, 421 U.S. 349 (1975). The first rationale for the Court's decision in Meek was essentially identical to the first reason given by the Court in Lemon v. Kurtzman for striking down the Rhode Island Salary Supplement Act -- i.e., that even secular teachers "may become involved in intentionally or inadvertently inculcating particular religious tenets or beliefs" (School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 385 (1985), quoted in Agostini, 521 U.S. at 219) and that this gives rise to "[the] potential for impermissible fostering of religion" (473 U.S. at 386, quoted in Agostini 521 U.S. at 219).

This Court repudiated this rationale in Agostini. It said, "[W]e have abandoned the presumption enacted in Meek and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion." 521 U.S. at 223. The majority in Agostini explicitly rejected Justice Souter's limiting interpretation of Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993), in which he sought to distinguish between publicly financed employees who "simply translate" and those who might have "an opportunity to inject religious content in what [is] supposed to be secular instruction." 521 U.S. at 224, discussing, 521 U.S. at 248.

By a parity of reasoning, the identical rationale of Lemon v. Kurtzman -- i.e., that teachers of secular subjects in parochial schools "will inevitably experience great difficulty in remaining religiously neutral" (403 U.S. at 618) -- has been effectively abandoned by the Court and is no longer a viable ground for invalidating a government program aimed at financing the secular education component of education at a religious school. To be sure, the secular teachers whose salaries were supplemented or reimbursed under the laws invalidated in Lemon v. Kurtzman were private employees rather than the "public employees" involved in Agostini. But the overriding constitutional principle was the same: In both instances, the government financed only secular instruction, and the basis for the constitutional challenge was the apprehension -- or "potential" -- that the teacher who had undertaken to provide only secular instruction might stray into the area of religious indoctrination, thereby resulting in the government financing of religion.

This Court said in Agostini that the presumption that secular teachers on the public payroll are "uncontrollable and sometimes very unprofessional" was unjustified. 521 U.S. at 227. The same conclusion applies, we submit, to secular teachers who are paid principally from private funds but who personally undertake -- if their salary is augmented or reimbursed from the public coffers -- to limit their instruction to secular material only. Indeed, the experience in the secular departments of Jewish day schools throughout the country is that they are maintained and operated as entirely separate divisions from the religious studies departments, and their programs of secular instruction are essentially indistinguishable from those of public schools and non-denominational private schools. Our model has been what Justice White, in dissent in Lemon, repeated from the district court opinion in the Rhode Island case -- i.e., that "good secular teaching was itself essential for implementing the religious mission of the parochial school." 403 U.S. at 667. In this case, as in Tilton v. Richardson, 403 U.S. 672 (1971), the Constitution permits government sponsorship of programs that are "characterized by an atmosphere of academic freedom rather than religious indoctrination." 403 U.S. at 681.

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