[n.*]
In Aguilar v. Felton, 473 U.S. 402, 413, this
Court held that New York City's program
that sent public
school teachers into parochial schools
to provide remedial education to disadvantaged
children
pursuant to Title I of the Elementary
and Secondary Education Act of 1965 necessitated
an excessive
entanglement of church and state and
violated
the First Amendment's Establishment Clause.
On remand, the District Court entered a
permanent injunction reflecting that ruling.
Some
10
years
later, petitioners--the parties bound
by the injunction--filed motions in the same
court seeking
relief from the injunction's operation
under Federal Rule of Civil Procedure 60(b)(5).
They emphasized the significant costs of
complying
with Aguilar and the assertions of five
Justices in Board of Ed. of Kiryas Joel
Village School
Dist. v. Grumet, 512 U.S. 687, that Aguilar
should
be reconsidered, and argued that relief
was proper under Rule 60(b)(5) and Rufo
v. Inmates
of Suffolk
County Jail, 502 U.S. 367, 388, because
Aguilar cannot be squared with this Court's
intervening
Establishment Clause jurisprudence and
is no longer good law. The District Court
denied
the
motion on the merits, declaring that
Aguilar's demise has "not yet occurred." The
Second Circuit agreed and affirmed.
Held:
1. A federally funded program providing supplemental,
remedial instruction to disadvantaged
children on a neutral basis is not invalid under
the Establishment Clause when such instruction
is given on the premises
of sectarian schools by government employees
under a program containing safeguards
such
as those present
in New York City's Title I program. Accordingly,
Aguilar, as well as that portion of its
companion
case, School Dist. of Grand Rapids v.
Ball, 473 U.S. 373, addressing a "Shared Time" program,
are no longer good law. Pp. 8-31.
(a) Under Rufo, supra, at 384, Rule 60(b)(5)--which
states that, "upon such terms as are just,
the court may relieve a party . . . from a final
judgment . . . [when] it is no longer equitable
that the judgment should have prospective application"--authorizes
relief from an injunction if the moving
party shows a significant change either
in factual
conditions
or in law. Since the exorbitant costs
of complying with the injunction were
known
at the time
Aguilar was decided, see, e.g., 473 U.
S., at 430-431 (O'Connor,
J., dissenting), they do not constitute
a change in factual conditions sufficient
to
warrant
relief, accord, Rufo, supra, at 385.
Also unavailing is
the fact that five Justices in Kiryas
Joel expressed the view that Aguilar
should
be reconsidered or
overruled. Because the question of Aguilar's
propriety was not before the Court in
that case, those Justices'
views cannot be said to have effected
a change in Establishment Clause law.
Thus,
petitioners'
ability to satisfy Rule 60(b)(5)'s prerequisites
hinges on whether the Court's later Establishment
Clause cases have so undermined Aguilar
that it is no longer good law. Pp. 8-11.
(b) To answer that question, it is necessary
to understand the rationale upon which
Aguilar and
Ball rested. One of the programs evaluated
in Ball was the Grand Rapids, Michigan, "Shared Time" program,
which is analogous to New York City's Title I program.
Applying the three part Lemon v. Kurtzman, 403
U.S. 602, 612-613, test, the Ball Court acknowledged
that the "Shared Time" program
satisfied the test's first element in
that it served
a purely secular purpose, 473 U. S.,
at 383, but ultimately
concluded that it had the impermissible
effect of advancing religion, in violation
of the
test's second element, id., at 385. That
conclusion rested
on three assumptions: (i) any public
employee who works on a religious school's
premises
is presumed
to inculcate religion in her work, see
id., at 385-389; (ii) the presence of
public employees
on private school premises creates an
impermissible symbolic union between
church and state,
see id,
at 389, 391; and (iii) any public aid
that directly aids the educational function
of religious schools
impermissibly finances religious indoctrination,
even if the aid reaches such schools
as
a consequence of private decisionmaking,
see
id., at 385,
393, 395-397. Additionally, Aguilar set
forth a fourth
assumption: that New York City's Title
I program necessitates an excessive government
entanglement
with religion, in violation of the Lemon
test's third element, because public
employees who
teach on religious school premises must
be
closely monitored
to ensure that they do not inculcate
religion. See 473 U. S., at 409, 412-414.
Pp. 11-16.
(c) The Court's more recent cases have
undermined the assumptions upon which
Ball and Aguilar
relied. Contrary to Aguilar's conclusion,
placing full
time government employees on parochial
school campuses does not as a matter
of law have
the impermissible
effect of advancing religion through
indoctrination. Subsequent cases have
modified in two significant
respects the approach the Court uses
to assess whether the government has
impermissibly
advanced religion by inculcating religious
beliefs.
First, the Court has abandoned Ball's
presumption that
public employees placed on parochial
school grounds will inevitably inculcate
religion
or that their
presence constitutes a symbolic union
between government and religion. Zobrest
v. Catalina
Foothills School
Dist., 509 U.S. 1, 12-13. No evidence
has ever shown that any New York City
instructor
teaching
on parochial school premises attempted
to
inculcate religion in students. Second,
the Court has
departed from Ball's rule that all government
aid that directly
aids the educational function of religious
schools is invalid. Witters v. Washington
Dept. of Servs.
for Blind, 474 U.S. 481, 487; Zobrest,
supra, at 10, 12. In all relevant respects,
the
provision of the instructional services
here at issue
is
indistinguishable from the provision
of a sign language interpreter in Zobrest.
Zobrest
and
Witters make clear that, under current
law, the "Shared
Time" program in Ball and New York
City's Title I program will not, as a
matter of
law, be deemed to have the effect of
advancing religion
through indoctrination. Thus, both this
Court's precedent and its experience
require rejection
of the premises upon which Ball relied.
Pp. 16-24.
(d) New York City's Title I program does not give
aid recipients any incentive to modify their religious
beliefs or practices in order to obtain program
services. Although Ball and Aguilar completely
ignored this consideration, other Establishment
Clause cases before and since have examined the
criteria by which an aid program identifies its
beneficiaries to determine whether the criteria
themselves have the effect of advancing religion
by creating a financial incentive to undertake
religious indoctrination. Cf. e.g., Witters, supra,
at 488; Zobrest, supra, at 10. Such an incentive
is not present where, as here, the aid is allocated
on the basis of neutral, secular criteria that
neither favor nor disfavor religion, and is made
available to both religious and secular beneficiaries
on a nondiscriminatory basis. Under such circumstances,
the aid is less likely to have the effect of advancing
religion. See Widmar v. Vincent, 454 U.S. 263,
274. New York City's Title I services are available
to all children who meet the eligibility requirements,
no matter what their religious beliefs or where
they go to school. Pp. 24-26.
(e) The Aguilar Court erred in concluding
that New York City's Title I program
resulted in
an excessive entanglement between church
and state.
Regardless of whether entanglement is
considered in the course of assessing
if a program
has an impermissible effect of advancing
religion,
Walz
v. Tax Comm'n of City of New York, 397
U.S. 664, 674, or as a factor separate
and apart
from "effect," Lemon
v. Kurtzman, 403 U. S., 612-613, the considerations
used to assess its excessiveness are similar: The
Court looks to the character and purposes of the
benefited institutions, the nature of the aid that
the State provides, and the resulting relationship
between the government and religious authority.
Id., at 615. It is simplest to recognize why entanglement
is significant and treat it--as the Court did in
Walz--as an aspect of the inquiry into a statute's
effect. The Aguilar Court's finding of "excessive" entanglement
rested on three grounds: (i) the program would
require "pervasive monitoring by public authorities" to
ensure that Title I employees did not inculcate
religion; (ii) the program required "administrative
cooperation" between the government and parochial
schools; and (iii) the program might increase the
dangers of "political divisiveness." 473
U. S., at 413-414. Under the Court's current Establishment
Clause understanding, the last two considerations
are insufficient to create an "excessive entanglement" because
they are present no matter where Title
I services are offered, but no court
has held
that Title
I services cannot be offered off campus.
E.g., Aguilar,
supra. Further, the first consideration
has been undermined by Zobrest. Because
the Court
in Zobrest
abandoned the presumption that public
employees will inculcate religion simply
because
they happen to be in a sectarian environment,
there is no longer
any need to assume that pervasive monitoring
of Title I teachers is required. There
is
no suggestion
in the record that the system New York
City has in place to monitor Title I
employees is insufficient
to prevent or to detect inculcation.
Moreover, the Court has failed to find
excessive
entanglement
in cases involving far more onerous burdens
on religious institutions. See Bowen
v. Kendrick, 487 U.S. 589, 615-617. Pp.
26-29.
(f) Thus, New York City's Title I program does
not run afoul of any of three primary criteria
the Court currently uses to evaluate whether government
aid has the effect of advancing religion: It does
not result in governmental indoctrination, define
its recipients by reference to religion, or create
an excessive entanglement. Nor can this carefully
constrained program reasonably be viewed as an
endorsement of religion. Pp. 28-29.
(g) The stare decisis doctrine does not
preclude this Court from recognizing
the change in
its law and overruling Aguilar and those
portions
of Ball
that are inconsistent with its more recent
decisions. E.g., United States v. Gaudin,
515 U.S. 506, ___.
Moreover, in light of the Court's conclusion
that Aguilar would be decided differently
under current
Establishment Clause law, adherence to
that decision would undoubtedly work
a "manifest injustice," such
that the law of the case doctrine does
not apply. Accord, Davis v. United States,
417
U.S. 333, 342.
Pp. 29-31.
2. The significant change in this Court's
post-Aguilar Establishment Clause law
entitles petitioners
to relief under Rule 60(b)(5). The Court's
general
practice is to apply the rule of law
it is announcing to the parties before
it,
Rodriguez
de Quijas v.
Shearson/American Express, Inc., 490
U.S. 477, 485, even when it is overruling
a
case, e.g.,
Adarand Constructors, Inc. v. Peña, 515 U.S. 200,
___. The Court neither acknowledges nor holds that
other courts should ever conclude that its more
recent cases have, by implication, overruled an
earlier precedent. Rather, lower courts should
follow the case which directly controls, leaving
to this Court the prerogative of overruling its
own decisions. Rodriguez de Quijas, supra, at 484.
Respondents' various arguments as to why relief
should not be granted in this case--that a different
analysis is required because the Court is here
reviewing for abuse of discretion the District
Court's denial of relief; that petitioners' unprecedented
use of Rule 60(b)(5) as a vehicle for effecting
changes in the law, rather than as a means of recognizing
them, will encourage litigants to burden the federal
courts with a deluge of Rule 60(b)(5) motions;
that petitioners' use of Rule 60(b) in this context
will erode the Court's institutional integrity;
and that the Court should wait for a "better
vehicle" in which to evaluate Aguilar's
continuing vitality--are not persuasive.
Pp. 31-34.
101 F. 3d 1394, reversed and remanded.
O'Connor, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and Scalia, Kennedy,
and Thomas, JJ., joined. Souter, J., filed a dissenting
opinion, in which Stevens and Ginsburg, JJ., joined,
and in which Breyer, J., joined as to Part II.
Ginsburg, J., filed a dissenting opinion, in which
Stevens, Souter, and Breyer, JJ., joined.
Notes
* Together with No. 96-553, Chancellor, Board of
Education of the City of New York, et al. v. Felton
et al., also on certiorari to the same court.
