Aguilar v. Felton/Dissent Burger

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Aguilar v. Felton by Warren E. Burger
Dissenting Opinion
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Under the guise of protecting Americans from the evils of an Established Church such as those of the 18th century and earlier times, today's decision will deny countless schoolchildren desperately needed remedial teaching services funded under Title I. The program at issue covers remedial reading, reading skills, remedial mathematics, English as a second language, and assistance for children needing special help in the learning process. The "remedial reading" portion of this program, for example, reaches children who suffer from dyslexia, a disease known to be difficult to diagnose and treat. Many of these children now will not receive the special training they need, simply because their parents desire that they attend religiously affiliated schools.

What is disconcerting about the result reached today is that, in the face of the human cost entailed by this decision, the Court does not even attempt to identify any threat to religious liberty posed by the operation of Title I. I share JUSTICE WHITE's concern that the Court's obsession with the criteria identified in Lemon v. Kurtzman, 403 U.S. 602 (1971), has led to results that are "contrary to the long-range interests of the country," ante at 400. As I wrote in 403 U.S. 602 (1971), has led to results that are "contrary to the long-range interests of the country," ante at 400. As I wrote in Wallace v. Jaffree, 472 U.S. 38, 89 (1985) (dissenting opinion),

our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion.

Federal programs designed to prevent a generation of children from growing up without being able to read effectively are not remotely steps in that direction. It borders on paranoia to perceive the Archbishop of Canterbury or the Bishop of [p420] Rome lurking behind programs that are just as vital to the Nation's schoolchildren as textbooks, see generally Board of Education v. Allen, 392 U.S. 236 (1968), transportation to and from school, see generally Everson v. Board of Education, 330 U.S. 1 (1947), and school nursing services.

On the merits of this case, I dissent for the reasons stated in my separate opinion in Meek v. Pittenger, 421 U.S. 349 (1975). We have frequently recognized that some interaction between church and state is unavoidable, and that an attempt to eliminate all contact between the two would be both futile and undesirable. Justice Douglas, writing for the Court in Zorach v. Clauson, 343 U.S. 306, 312 (1952), stated:

The First Amendment . . . does not say that, in every and all respects, there shall be a separation of Church and State. . . . Otherwise, the state and religion would be aliens to each other — hostile, suspicious, and even unfriendly.

The Court today fails to demonstrate how the interaction occasioned by the program at issue presents any threat to the values underlying the Establishment Clause.

I cannot join in striking down a program that, in the words of the Court of Appeals, "has done so much good and little, if any, detectable harm." 739 F.2d 48, 72 (CA2 1984). The notion that denying these services to students in religious schools is a neutral act to protect us from an Established Church has no support in logic, experience, or history. Rather than showing the neutrality the Court boasts of, it exhibits nothing less than hostility toward religion and the children who attend church-sponsored schools.