OCTOBER TERM, 1996
Syllabus
AGOSTINI ET AL.
v. FELTON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 96-552. Argued April 15, 1997-Decided June 23,1997*
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. 215-236.
(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
*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.
204
Syllabus
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. 215-218.
(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. 218-222.
(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 as-
205
sess 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.
222-230.
(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.230-232.
(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., at 612-613, the considerations used to
assess its exces-
206
Syllabus
siveness 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. 232-235.
(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. 234-235.
(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, 521.
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.
235-236.
207
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.
Shears on/American Express, Inc., 490 U. S. 477, 485, even
when it is overruling a case,
e. g., Adarand Constructors,
Inc. v.
Pena, 515 U. S. 200, 237-238.
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 litigation-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.237-240.
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,
post, p. 240. GINSBURG, J., filed a dissenting opinion,
in which STEVENS, SOUTER, and BREYER, JJ., joined,
post, p.
255.
Acting Solicitor General Dellinger argued the cause for the
Secretary of Education, respondent under this Court's Rule 12.6, in
support of petitioners. With him on the briefs were Assistant
Attorney General Hunger, Deputy Solicitor General Waxman, Deputy
Assistant Attorney General Preston, Paul R. Q. Wolfson, Michael Jay
Singer, and Howard
Paul A. Crotty argued the cause for petitioners in both
cases. With him on the briefs for petitioners in No. 96-553 were
Leonard Koerner and
Stephen J.
McGrath. Kevin
T.
208
Baine and
Emmet T. Flood filed a brief for
petitioners in No. 96-552.
Stanley Geller argued the cause and filed a brief for
respondents Felton et al. t
JUSTICE O'CONNOR delivered the opinion of the Court.
In
Aguilar v.
Felton, 473 U. S. 402 (1985),
this Court held that the Establishment Clause of the First
Amendment barred the city of New York from sending public school
teachers into parochial schools to provide remedial education to
disadvantaged children pursuant to a congressionally mandated
program. On remand, the District Court for the Eastern District of
New York entered a permanent injunction reflecting our ruling.
Twelve years later, petitionersthe parties bound by that
injunction-seek relief from its operation. Petitioners maintain
that
Aguilar cannot be
tBriefs of
amici curiae urging reversal were filed for
the Becket Fund for Religious Liberty by
Kevin J.
Hasson; for the Christian Legal Society et al. by
Michael
W McConnell, Thomas C.
Berg, Steven T. McFarland, Kimberlee
Wood Colby, and
Samuel B. Casey; for the Knights of
Columbus by
James W Shannon, Jr.; for the National Jewish
Commission on Law and Public Mfairs by
Nathan Lewin and
Dennis Rapps; for Senator Robert F. Bennett by
Ronald D.
Maines; and for Sarah Peter et al. by
Michael Joseph
Woodruff and
Scott J.
Ward.
Briefs of amici curiae urging affirmance were filed for the
American Jewish Congress et al. by Norman Redlich, Marc D. Stern,
Marvin E. Frankel, David J. Strom, Richard T. Foltin, J. Brent
Walker, Melissa Rogers, Robert Chanin, John West, Elliot M.
Mincberg, and Judith E. Schaeffer; and for Americans United for
Separation of Church and State et al. by Steven K. Green, Julie A.
Segal, Steven R. Shapiro, and Arthur
Briefs of
amici curiae were filed for the Council on
Religious Freedom et al. by
Lee Boothby, Walter E. Carson,
and
Robert W Nixon; for the Institute for Justice et al. by
Mark Snyderman, William H. Mellor III, and
Clint
Bolick; for the New York County Lawyers Association Committee
on Supreme Court of the United States by
H. Elliot Wales;
for the Pacific Legal Foundation by
Sharon L. Browne; and
for the United States Catholic Conference by
Mark E. Chopko,
John A. Liekweg, and
Jeffrey Hunter Moon.
209
squared with our intervening Establishment Clause jurisprudence
and ask that we explicitly recognize what our more recent cases
already dictate:
Aguilar is no longer good law. We agree
with petitioners that
Aguilar is not consistent with our
subsequent Establishment Clause decisions and further conclude
that, on the facts presented here, petitioners are entitled under
Federal Rule of Civil Procedure 60(b)(5) to relief from the
operation of the District Court's prospective injunction.
I
In 1965, Congress enacted Title I of the Elementary and
Secondary Education Act of 1965, 79 Stat. 27, as modified, 20 U. S.
C. § 6301
et seq., to "provid[e] full educational
opportunity to every child regardless of economic background." S.
Rep. No. 146, 89th Cong., 1st Sess., 5 (1965) (hereinafter Title
I). Toward that end, Title I channels federal funds, through the
States, to "local educational agencies" (LEA's). 20 U. S. C. §§
6311, 6312.* The LEA's spend these funds to provide remedial
education, guidance, and job counseling to eligible students. §§
6315(c)(1)(A) (LEA's must use funds to "help participating children
meet ... State student performance standards"), 6315(c)(1)(E)
(LEA's may use funds to provide "counseling, mentoring, and other
pupil services"); see also §§ 6314(b)(1)(B)(i), (iv). An eligible
student is one (i) who resides within the attendance boundaries of
a public school located in a low-income area, § 6313(a)(2)(B); and
(ii) who is failing, or is at risk of failing, the State's student
performance standards, § 6315(b)(1)(B). Title I funds must be made
available to
all eligible children, regardless of whether
they attend public schools, § 6312(c)(1)(F), and the services
provided to children attending private schools must
*Title I has been reenacted, in varying forms, over the years,
most recently in the Improving America's Schools Act of 1994, 108
Stat. 3518. We will refer to the current Title I provisions, which
do not differ meaningfully for our purposes from the Title I
program referred to in our previous decision in this
litigation.
210
be "equitable in comparison to services and other benefits for
public school children," § 6321(a)(3); see § 6321(a)(1); 34 CFR §§
200.10(a), 200.11(b) (1996).
An LEA providing services to children enrolled in private
schools is subject to a number of constraints that are not imposed
when it provides aid to public schools. Title I services may be
provided only to those private school students eligible for aid,
and cannot be used to provide services on a "school-wide" basis.
Compare 34 CFR § 200.12(b) (1996) with 20 U. S. C. § 6314 (allowing
"school-wide" programs at public schools). In addition, the LEA
must retain complete control over Title I funds; retain title to
all materials used to provide Title I services; and provide those
services through public employees or other persons independent of
the private school and any religious institution. §§ 6321(c)(1),
(2). The Title I services themselves must be "secular, neutral, and
nonideological," § 6321(a)(2), and must "supplement, and in no case
supplant, the level of services" already provided by the private
school, 34 CFR § 200.12(a) (1996).
Petitioner Board of Education of the City of New York
(hereinafter Board), an LEA, first applied for Title I funds in
1966 and has grappled ever since with how to provide Title I
services to the private school students within its jurisdiction.
Approximately 10% of the total number of students eligible for
Title I services are private school students. See App. 38, 620.
Recognizing that more than 90% of the private schools within the
Board's jurisdiction are sectarian,
Felton v.
Secretary,
United States Dept. of Ed., 739 F.2d
48, 51 (CA2 1984), the Board initially arranged to transport
children to public schools for after-school Title I instruction.
But this enterprise was largely unsuccessful. Attendance was poor,
teachers and children were tired, and parents were concerned for
the safety of their children.
Ibid. The Board then moved the
after-school instruction onto private school
211
campuses, as Congress had contemplated when it enacted Title 1.
See
Wheeler v.
Barrera, 417 U. S. 402, 422
(1974). After this program also yielded mixed results, the Board
implemented the plan we evaluated in
Aguilar v.
Felton,
473 U. S. 402 (1985).
That plan called for the provision of Title I services on
private school premises during school hours. Under the plan, only
public employees could serve as Title I instructors and counselors.
Id., at 406. Assignments to private schools were made on a
voluntary basis and without regard to the religious affiliation of
the employee or the wishes of the private school.
Ibid.; 739
F. 2d, at 53. As the Court of Appeals in
Aguilar observed, a
large majority of Title I teachers worked in nonpublic schools with
religious affiliations different from their own. 473 U. S., at 406.
The vast majority of Title I teachers also moved among the private
schools, spending fewer than five days a week at the same school.
Ibid.
Before any public employee could provide Title I instruction at
a private school, she would be given a detailed set of written and
oral instructions emphasizing the secular purpose of Title I and
setting out the rules to be followed to ensure that this purpose
was not compromised. Specifically, employees would be told that (i)
they were employees of the Board and accountable only to their
public school supervisors; (ii) they had exclusive responsibility
for selecting students for the Title I program and could teach only
those children who met the eligibility criteria for Title I; (iii)
their materials and equipment would be used only in the Title I
program; (iv) they could not engage in team teaching or other
cooperative instructional activities with private school teachers;
and (v) they could not introduce any religious matter into their
teaching or become involved in any way with the religious
activities of the private schools.
Ibid. All religious
symbols were to be removed from classrooms used
212
for Title I services.
Id., at 407. The rules acknowledged
that it might be necessary for Title I teachers to consult with a
student's regular classroom teacher to assess the student's
particular needs and progress, but admonished instructors to limit
those consultations to mutual professional concerns regarding the
student's education. 739 F. 2d, at 53. To ensure compliance with
these rules, a publicly employed field supervisor was to attempt to
make at least one unannounced visit to each teacher's classroom
every month. 473 U. S., at 407.
In 1978, six federal taxpayers-respondents here-sued the Board
in the District Court for the Eastern District of New York.
Respondents sought declaratory and injunctive relief, claiming that
the Board's Title I program violated the Establishment Clause. The
District Court permitted the parents of a number of parochial
school students who were receiving Title I services to intervene as
codefendants. The District Court granted summary judgment for the
Board, but the Court of Appeals for the Second Circuit reversed.
While noting that the Board's Title I program had "done so much
good and little, if any, detectable harm," 739 F. 2d, at 72, the
Court of Appeals nevertheless held that
Meek v.
Pittenger, 421
U. S. 349 (1975), and
Wolman v.
Walter, 433 U. S.
229 (1977), compelled it to declare the program unconstitutional.
In a 5-to-4 decision, this Court affirmed on the ground that the
Board's Title I program necessitated an "excessive entanglement of
church and state in the administration of [Title 1] benefits." 473
U. S., at 414. On remand, the District Court permanently enjoined
the Board
"from using public funds for any plan or program under [Title I]
to the extent that it requires, authorizes or permits public school
teachers and guidance counselors to provide teaching and counseling
services on the premises of sectarian schools within New York
City." App. to Pet. for Cert. in No. 96-553, pp. A25-A26.
213
The Board, like other LEA's across the United States, modified
its Title I program so it could continue serving those students who
attended private religious schools. Rather than offer Title I
instruction to parochial school students at their schools, the
Board reverted to its prior practice of providing instruction at
public school sites, at leased sites, and in mobile instructional
units (essentially vans converted into classrooms) parked near the
sectarian school. The Board also offered computer-aided
instruction, which could be provided "on premises" because it did
not require public employees to be physically present on the
premises of a religious school. App. 315.
It is not disputed that the additional costs of complying with
Aguilar's mandate are significant. Since the 19861987 school
year, the Board has spent over $100 million providing
computer-aided instruction, leasing sites and mobile instructional
units, and transporting students to those sites. App. 333 ($93.2
million spent between 1986-1987 and 1993-1994 school years); id.,
at 336 (annual additional costs average around $15 million). Under
the Secretary of Education's regulations, those costs "incurred as
a result of implementing alternative delivery systems to comply
with the requirements of
Aguilar v.
Felton" and not
paid for with other state or federal funds are to be deducted from
the federal grant before the Title I funds are distributed to any
student. 34 CFR § 200.27(c) (1996). These
"Aguilar costs"
thus reduce the amount of Title I money an LEA has available for
remedial education, and LEA's have had to cut back on the number of
students who receive Title I benefits. From Title I funds available
for New York City children between the 1986-1987 and the 1993-1994
school years, the Board had to deduct $7.9 million "off-the-top"
for compliance with
Aguilar. App. 333. When
Aguilar
was handed down, it was estimated that some 20,000 economically
disadvantaged children in the city of New York, see 473 U. S., at
431
214
(O'CONNOR, J., dissenting), and some 183,000 children
nationwide, see L. Levy, The Establishment Clause 176 (1986), would
experience a decline in Title I services. See also S. Rep. No.
100-222, p. 14 (1987) (estimating that
Aguilar costs have
"resulted in a decline of about 35 percent in the number of private
school children who are served").
In October and December of 1995, petitioners-the Board and a new
group of parents of parochial school students entitled to Title I
services-filed motions in the District Court seeking relief under
Federal Rule of Civil Procedure 60(b) from the permanent injunction
entered by the District Court on remand from our decision in
Aguilar. Petitioners argued that relief was proper under
Rule 60(b)(5) and our decision in
Rufo v.
Inmates of
Suffolk County Jail, 502 U. S. 367, 388
(1992), because the "decisional law [had] changed to make legal
what the [injunction] was designed to prevent." Specifically,
petitioners pointed to the statements of five Justices in
Board
of Ed. of Kiryas Joel Village School Dist. v.
Grumet,
512 U. S. 687
(1994), calling for the overruling of
Aguilar. The District
Court denied the motion. The District Court recognized that
petitioners, "at bottom," sought "a procedurally sound vehicle to
get the [propriety of the injunction] back before the Supreme
Court," App. to Pet. for Cert. in No. 96-553, p. A12, and concluded
that "the Board ha[d] properly proceeded under Rule 60(b) to seek
relief from the injunction."
Id., at A19. Despite its
observations that "the landscape of Establishment Clause decisions
has changed," id., at A10, and that "[t]here may be good reason to
conclude that
Aguilar's demise is imminent,"
id., at
A20, the District Court denied the Rule 60(b) motion on the merits
because
Aguilar's demise had "not yet occurred." The Court
of Appeals for the Second Circuit "affirmed substantially for the
reasons stated in" the District Court's opinion. App. to Pet. for
Cert. in No. 96-553, p. A5; judgt. order reported at
101 F.3d
1394 (1996). We granted certiorari, 519 U. S. 1086 (1997), and
now reverse.
215
II
The question we must answer is a simple one: Are petitioners
entitled to relief from the District Court's permanent injunction
under Rule 60(b)? Rule 60(b)(5), the subsection under which
petitioners proceeded below, states:
"On motion and upon such terms as are just, the court may
relieve a party ... from a final judgment [or] order ... [when] it
is no longer equitable that the judgment should have prospective
application."
In
Rufo v.
Inmates of Suffolk County Jail, supra,
at 384, we held that it is appropriate to grant a Rule 60(b)(5)
motion when the party seeking relief from an injunction or consent
decree can show "a significant change either in factual conditions
or in law." A court may recognize subsequent changes in either
statutory or decisional law. See
Railway Employees v.
Wright, 364 U.
S. 642, 652-653 (1961) (consent decree should be vacated under
Rule 60(b) in light of amendments to the Railway Labor Act);
Rufo, supra, at 393 (vacating denial of Rule 60(b)(5) motion
and remanding so District Court could consider whether consent
decree should be modified in light of
Bell v.
Wolfish, 441
U. S. 520 (1979));
Pasadena City Bd. of Ed. v.
Spangler, 427
U. S. 424, 437-438 (1976) (injunction should have been vacated
in light of
Swann v.
Charlotte-Mecklenburg Bd. of
Ed., 402 U. S.
1 (1971)). A court errs when it refuses to modify an injunction
or consent decree in light of such changes. See
Wright,
supra, at 647 ("[T]he court cannot be required to disregard
significant changes in law or facts if it is satisfied that what it
has been doing has been turned through changed circumstances into
an instrument of wrong" (internal quotation marks omitted)).
Petitioners point to three changes in the factual and legal
landscape that they believe justify their claim for relief under
Rule 60(b)(5). They first contend that the exorbitant costs of
complying with the District Court's injunction con-
216
stitute a significant factual development warranting
modification of the injunction. See Brief for Petitioner Agostini
et al. 38-40. Petitioners also argue that there have been two
significant legal developments since
Aguilar was decided: a
majority of Justices have expressed their views that
Aguilar
should be reconsidered or overruled, see
supra, at 214; and
Aguilar has in any event been undermined by subsequent
Establishment Clause decisions, including
Witters v.
Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986),
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1 (1993), and
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819
(1995).
Respondents counter that, because the costs of providing Title I
services off site were known at the time
Aguilar was
decided, and because the relevant case law has not changed, the
District Court did not err in denying petitioners' motions.
Obviously, if neither the law supporting our original decision in
this litigation nor the facts have changed, there would be no need
to decide the propriety of a Rule 60(b)(5) motion. Accordingly, we
turn to the threshold issue whether the factual or legal landscape
has changed since we decided
Aguilar.
We agree with respondents that petitioners have failed to
establish the significant change in factual conditions required by
Rufo. Both petitioners and this Court were, at the time
Aguilar was decided, aware that additional costs would be
incurred if Title I services could not be provided in parochial
school classrooms. See App. 66-68 (Defendants' Joint Statement of
Material Facts Not In Dispute, filed in 1982, detailing costs of
providing off-premises services);
Aguilar, 473 U. S., at
430-431 (O'CONNOR, J., dissenting) (observing that costs of
complying with
Aguilar decision would likely cause a decline
in Title I services for 20,000 New York City students). That these
predictions of additional costs turned out to be accurate does not
constitute a change in factual conditions warranting relief under
Rule 60(b)(5). Accord,
Rufo,
217
supra, at 385 ("Ordinarily ... modification should not be
granted where a party relies upon events that actually were
anticipated at the time [the order was entered]").
We also agree with respondents that the statements made by five
Justices in
Kiryas Joel do not, in themselves, furnish a
basis for concluding that our Establishment Clause jurisprudence
has changed. In
Kiryas Joel, we considered the
constitutionality of a New York law that carved out a public school
district to coincide with the boundaries of the village of Kiryas
Joel, which was an enclave of the Satmar Hasidic sect. Before the
new district was created, Satmar children wishing to receive
special educational services under the Individuals with
Disabilities Education Act (IDEA), 20 U. S. C. § 1400
et
seq., could receive those services at public schools located
outside the village. Because Satmar parents rarely permitted their
children to attend those schools, New York created a new public
school district within the boundaries of the village so that Satmar
children could stay within the village but receive IDEA services on
public school premises from publicly employed instructors. In the
course of our opinion, we observed that New York had created the
special school district in response to our decision in
Aguilar, which had required New York to cease providing IDEA
services to Satmar children on the premises of their private
religious schools. 512 U. S., at 692. Five Justices joined opinions
calling for reconsideration of
Aguilar. See 512 U. S., at
718 (O'CONNOR, J., concurring in part and concurring in judgment);
id., at 731 (KENNEDY, J., concurring in judgment); id., at 750
(SCALIA, J., joined by REHNQUIST, C. J., and THOMAS, J.,
dissenting). But the question of
Aguilar's propriety was not
before us. The views of five Justices that the case should be
reconsidered or overruled cannot be said to have effected a change
in Establishment Clause law.
In light of these conclusions, petitioners' ability to satisfy
the prerequisites of Rule 60(b)(5) hinges on whether our later
Establishment Clause cases have so undermined
218
Aguilar that it is no longer good law. We now turn to
that inquiry.
III A
In order to evaluate whether
Aguilar has been eroded by
our subsequent Establishment Clause cases, it is necessary to
understand the rationale upon which
Aguilar, as well as its
companion case,
School Dist. of Grand Rapids v.
Ball,
473 U. S. 373
(1985), rested.
In
Ball, the Court evaluated two programs implemented by
the School District of Grand Rapids, Michigan. The district's
Shared Time program, the one most analogous to Title I, provided
remedial and "enrichment" classes, at public expense, to students
attending nonpublic schools. The classes were taught during regular
school hours by publicly employed teachers, using materials
purchased with public funds, on the premises of nonpublic schools.
The Shared Time courses were in subjects designed to supplement the
"core curriculum" of the nonpublic schools.
Id., at 375-376.
Of the 41 nonpublic schools eligible for the program, 40 were
"'pervasively sectarian'" in character-that is, "'the purpos[e] of
[those] schools [was] to advance their particular religions.'"
Id., at 379.
The Court conducted its analysis by applying the threepart test
set forth in
Lemon v.
Kurtzman, 403 U. S. 602 (1971):
"First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion; finally, the statute must not
foster an excessive government entanglement with religion." 473 U.
S., at 382-383 (quoting Lemon, supra, at 612-613) (citations
and internal quotation marks omitted).
The Court acknowledged that the Shared Time program served a
purely secular purpose, thereby satisfying the first
219
part of the so-called
Lemon test. 473 U. S., at 383.
Nevertheless, it ultimately concluded that the program had the
impermissible effect of advancing religion.
Id., at 385.
The Court found that the program violated the Establishment
Clause's prohibition against "government-financed or
government-sponsored indoctrination into the beliefs of a
particular religious faith" in at least three ways.
Ibid.
First, drawing upon the analysis in
Meek v.
Pittenger, 421
U. S. 349 (1975), the Court observed that "the teachers
participating in the programs may become involved in intentionally
or inadvertently inculcating particular religious tenets or
beliefs." 473 U. S., at 385.
Meek invalidated a Pennsylvania
program in which full-time public employees provided supplemental
"auxiliary services"-remedial and accelerated instruction, guidance
counseling and testing, and speech and hearing services-to
nonpublic school children at their schools. 473 U. S., at 367-373.
Although the auxiliary services themselves were secular, they were
mostly dispensed on the premises of parochial schools, where "an
atmosphere dedicated to the advancement of religious belief [was]
constantly maintained."
Meek, 421 U. S., at 371. Instruction
in that atmosphere was sufficient to create "[t]he potential for
impermissible fostering of religion."
Id., at 372. Cf.
Wolman v.
Walter, 433 U. S., at 248 (upholding
programs employing public employees to provide remedial instruction
and guidance counseling to nonpublic school children at sites away
from the nonpublic school).
The Court concluded that Grand Rapids' program shared these
defects. 473 U. S., at 386. As in
Meek, classes were
conducted on the premises of religious schools. Accordingly, a
majority found a "'substantial risk'" that teachers-even those who
were not employed by the private schools-might "subtly (or overtly)
conform their instruction to the [pervasively sectarian]
environment in which they [taught]." 473 U. S., at 388. The danger
of "state-sponsored indoctrination" was only exacerbated by the
school district's failure to
220
monitor the courses for religious content.
Id., at 387.
Notably, the Court disregarded the lack of evidence of any specific
incidents of religious indoctrination as largely irrelevant,
reasoning that potential witnesses to any indoctrination-the
parochial school students, their parents, or parochial school
officials-might be unable to detect or have little incentive to
report the incidents.
Id., at 388-389.
The presence of public teachers on parochial school grounds had
a second, related impermissible effect: It created a "graphic
symbol of the 'concert or union or dependency' of church and
state,"
id., at 391 (quoting
Zorach v.
Clauson, 343
U. S. 306, 312 (1952)), especially when perceived by "children
in their formative years," 473 U. S., at 390. The Court feared that
this perception of a symbolic union between church and state would
"conve[y] a message of government endorsement ... of religion" and
thereby violate a "core purpose" of the Establishment Clause.
Id., at 389.
Third, the Court found that the Shared Time program
impermissibly financed religious indoctrination by subsidizing "the
primary religious mission of the institutions affected."
Id., at 385. The Court separated its prior decisions
evaluating programs that aided the secular activities of religious
institutions into two categories: those in which it concluded that
the aid resulted in an effect that was "indirect, remote, or
incidental" (and upheld the aid); and those in which it concluded
that the aid resulted in "a direct and substantial advancement of
the sectarian enterprise" (and invalidated the aid).
Id., at
393 (internal quotation marks omitted). In light of
Meek and
Wolman, Grand Rapids' program fell into the latter category.
In those cases, the Court ruled that a state loan of instructional
equipment and materials to parochial schools was an impermissible
form of "direct aid" because it "advanced the primary,
religion-oriented educational function of the sectarian school,"
473 U. S., at 395 (citations and internal quotation marks omitted),
by providing "in-
221
kind" aid (e. g., instructional materials) that could be used to
teach religion and by freeing up money for religious indoctrination
that the school would otherwise have devoted to secular education.
Given the holdings in
Meek and
Wolman, the Shared
Time program-which provided teachers as well as instructional
equipment and materials-was surely invalid. 473 U. S., at 395. The
Ball Court likewise placed no weight on the fact that the
program was provided to the student rather than to the school. Nor
was the impermissible effect mitigated by the fact that the program
only supplemented the courses offered by the parochial schools.
Id., at 395397.
The New York City Title I program challenged in
Aguilar
closely resembled the Shared Time program struck down in
Ball, but the Court found fault with an aspect of the Title
I program not present in
Ball: The Board had "adopted a
system for monitoring the religious content of publicly funded
Title I classes in the religious schools." 473 U. S., at 409. Even
though this monitoring system might prevent the Title I program
from being used to inculcate religion, the Court concluded, as it
had in
Lemon and
Meek, that the level of monitoring
necessary to be "certain" that the program had an exclusively
secular effect would "inevitably resul[t] in the excessive
entanglement of church and state," thereby running afoul of
Lemon's third prong. 473 U. S., at 409; see
Lemon,
403 U. S., at 619 (invalidating Rhode Island program on
entanglement grounds because "[a] comprehensive, discriminating,
and continuing state surveillance will inevitably be required to
ensure that thee] restrictions [against indoctrination] are
obeyed");
Meek, supra, at 370 (invalidating Pennsylvania
program on entanglement grounds because excessive monitoring would
be required for the State to be certain that public school
officials do not inculcate religion). In the majority's view, New
York City's Title I program suffered from the "same critical
elements of entanglement" present in
Lemon and
Meek:
the aid was provided "in a per-
222
vasively sectarian environment ... in the form of teachers,"
requiring "ongoing inspection ... to ensure the absence of a
religious message." 473 U. S., at 412. Such "pervasive monitoring
by public authorities in the sectarian schools infringes precisely
those Establishment Clause values at the root of the prohibition of
excessive entanglement."
Id., at 413. The Court noted two
further forms of entanglement inherent in New York City's Title I
program: the "administrative cooperation" required to implement
Title I services and the "dangers of political divisiveness" that
might grow out of the day-to-day decisions public officials would
have to make in order to provide Title I services.
Id., at
413-414.
Distilled to essentials, the Court's conclusion that the Shared
Time program in
Ball had the impermissible effect of
advancing religion rested on three assumptions: (i) any public
employee who works on the premises of a religious school is
presumed to inculcate religion in her work; (ii) the presence of
public employees on private school premises creates a symbolic
union between church and state; and (iii) any and all 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.
Additionally, in
Aguilar there was a fourth assumption: that
New York City's Title I program necessitated an excessive
government entanglement with religion because public employees who
teach on the premises of religious schools must be closely
monitored to ensure that they do not inculcate religion.
B
Our more recent cases have undermined the assumptions upon which
Ball and
Aguilar relied. To be sure, the general
principles we use to evaluate whether government aid violates the
Establishment Clause have not changed since
Aguilar was
decided. For example, we continue to ask whether the government
acted with the purpose of advanc-
223
ing or inhibiting religion, and the nature of that inquiry has
remained largely unchanged. See
Witters, 474 U. S., at
485
486; Bowen v.
Kendrick, 487 U. S. 589, 602-604
(1988) (concluding that Adolescent Family Life Act had a secular
purpose);
Board of Ed. of Westside Community Schools (Dist.
66) v.
Mergens, 496 U. S. 226, 248-249
(1990) (concluding that Equal Access Act has a secular purpose);
cf.
Edwards v.
Aguillard, 482 U. S. 578 (1987)
(striking down Louisiana law that required creationism to be
discussed with evolution in public schools because the law lacked a
legitimate secular purpose). Likewise, we continue to explore
whether the aid has the "effect" of advancing or inhibiting
religion. What has changed since we decided
Ball and
Aguilar is our understanding of the criteria used to assess
whether aid to religion has an impermissible effect.
1
As we have repeatedly recognized, government inculcation of
religious beliefs has the impermissible effect of advancing
religion. Our cases subsequent to
Aguilar have, however,
modified in two significant respects the approach we use to assess
indoctrination. First, we have abandoned the presumption erected 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. In
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1 (1993), we
examined whether the IDEA, 20 U. S. C. § 1400
et seq., was
constitutional as applied to a deaf student who sought to bring his
state-employed signlanguage interpreter with him to his Roman
Catholic high school. We held that this was permissible, expressly
disavowing the notion that "the Establishment Clause [laid] down
[an] absolute bar to the placing of a public employee in a
sectarian school." 509 U. S., at 13. "Such a fiat rule, smacking of
antiquated notions of 'taint,' would indeed exalt
224
form over substance."
Ibid. We refused to presume that a
publicly employed interpreter would be pressured by the pervasively
sectarian surroundings to inculcate religion by "add[ing] to [or]
subtract[ing] from" the lectures translated.
Ibid. In the
absence of evidence to the contrary, we assumed instead that the
interpreter would dutifully discharge her responsibilities as a
full-time public employee and comply with the ethical guidelines of
her profession by accurately translating what was said.
Id.,
at 12. Because the only
government aid in
Zobrest was
the interpreter, who was herself not inculcating any religious
messages, no
government indoctrination took place and we
were able to conclude that "the provision of such assistance [was]
not barred by the Establishment Clause."
Id, at 13.
Zobrest therefore expressly rejected the notion-relied on in
Ball and
Aguilarthat, solely because of her presence
on private school property, a public employee will be presumed to
inculcate religion in the students.
Zobrest also implicitly
repudiated another assumption on which
Ball and
Aguilar turned: that the presence of a public employee on
private school property creates an impermissible "symbolic link"
between government and religion.
JUSTICE SOUTER contends that
Zobrest did not undermine
the "presumption of inculcation" erected in
Ball and
Aguilar, and that our conclusion to the contrary rests on a
"mistaken reading" of
Zobrest. Post, at 248 (dissenting
opinion). In his view,
Zobrest held that the Establishment
Clause tolerates the presence of public employees in sectarian
schools "only ... in ... limited circumstances"-i.
e., when
the employee "simply translates for one student the material
presented to the class for the benefit of all students."
Post, at 249. The sign-language interpreter in
Zobrest is unlike the remedial instructors in
Ball
and
Aguilar because signing, JUSTICE SOUTER explains,
"[cannot] be understood as an opportunity to inject religious
content in what [is] supposed to be secular instruction."
Post, at 248-249. He is thus able to conclude that
Zobrest is distinguishable
225
from-and therefore perfectly consistent
with-Ball and
Aguilar.
In
Zobrest, however, we did not expressly or implicitly
rely upon the basis JUSTICE SOUTER now advances for distinguishing
Ball and
Aguilar. If we had thought that signers had
no "opportunity to inject religious content" into their
translations, we would have had no reason to consult the record for
evidence of inaccurate translations. 509 U. S., at 13. 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 signlanguage interpreters. Indeed, even the
Zobrest dissenters acknowledged the shift
Zobrest
effected in our Establishment Clause law when they criticized the
majority for "stray[ing] ... from the course set by nearly five
decades of Establishment Clause jurisprudence."
Id., at 24
(Blackmun, J., dissenting). Thus, it was
Zobrest-and not
this litigation-that created "fresh law."
Post, at 249. Our
refusal to limit
Zobrest to its facts despite its rationale
does not, in our view, amount to a "misreading" of precedent.
Second, we have departed from the rule relied on in
Ball
that all government aid that directly assists the educational
function of religious schools is invalid. In
Witters v.
Washington Dept. of Servs.for Blind, 474 U. S. 481 (1986), we
held that the Establishment Clause did not bar a State from issuing
a vocational tuition grant to a blind person who wished to use the
grant to attend a Christian college and become a pastor,
missionary, or youth director. Even though the grant recipient
clearly would use the money to obtain religious education, we
observed that the tuition grants were "'made available generally
without regard to the sectariannonsectarian, or public-nonpublic
nature of the institution benefited.'''
Id., at 487 (quoting
Committee for Public Ed. &
Religious Liberty v.
Nyquist, 413
U. S. 756, 782-783,
226
n. 38 (1973)). The grants were disbursed directly to students,
who then used the money to pay for tuition at the educational
institution of their choice. In our view, this transaction was no
different from a State's issuing a paycheck to one of its
employees, knowing that the employee would donate part or all of
the check to a religious institution. In both situations, any money
that ultimately went to religious institutions did so "only as a
result of the genuinely independent and private choices of"
individuals. 474 U. S., at 487. The same logic applied in
Zobrest, where we allowed the State to provide an
interpreter, even though she would be a mouthpiece for religious
instruction, because the IDEA's neutral eligibility criteria
ensured that the interpreter's presence in a sectarian school was a
"result of the private decision of individual parents" and "[could
not] be attributed to
state decisionmaking." 509 U. S., at
10 (emphasis added). Because the private school would not have
provided an interpreter on its own, we also concluded that the aid
in
Zobrest did not indirectly finance religious education by
"reliev[ing] [the] sectarian schoo[l] of costs [it] otherwise would
have borne in educating [its] students."
Id., at 12.
Zobrest and
Witters make clear that, under current
law, the Shared Time program in
Ball and New York City's
Title I program in
Aguilar will not, as a matter of law, be
deemed to have the effect of advancing religion through
indoctrination. Indeed, each of the premises upon which we relied
in
Ball to reach a contrary conclusion is no longer valid.
First, there is no reason to presume that, simply because she
enters a parochial school classroom, a full-time public employee
such as a Title I teacher will depart from her assigned duties and
instructions and embark on religious indoctrination, any more than
there was a reason in
Zobrest to think an interpreter would
inculcate religion by altering her translation of classroom
lectures. Certainly, no evidence has ever shown that any New York
City Title I instructor teaching on parochial school premises
attempted to inculcate religion in stu-
227
dents.
National Coalition for Public Ed. &
Religious Liberty v.
Harris, 489 F. Supp. 1248, 1262,
1267 (SDNY 1980);
Felton v.
Secretary, United States
Dept. of Ed., 739 F. 2d, at 53, aff'd
sub nom. Aguilar
v.
Felton, 473
U. S. 402 (1985). Thus, both our precedent and our experience
require us to reject respondents' remarkable argument that we must
presume Title I instructors to be "uncontrollable and sometimes
very unprofessional." Tr. of Oral Arg. 39.
As discussed above,
Zobrest also repudiates
Ball's
assumption that the presence of Title I teachers in parochial
school classrooms will, without more, create the impression of a
"symbolic union" between church and state. JUSTICE SOUTER maintains
that
Zobrest is not dispositive on this point because
Aguilar's implicit conclusion that New York City's Title I
program created a "symbolic union" rested on more than the presence
of Title I employees on parochial school grounds.
Post, at
250. To him, Title I continues to foster a "symbolic union" between
the Board and sectarian schools because it mandates "the
involvement of public teachers in the instruction provided within
sectarian schools,"
ibid., and "fus[es] public and private
faculties,"
post, at 254. JUSTICE SOUTER does not disavow
the notion, uniformly adopted by lower courts, that Title I
services may be provided to sectarian school students in off-campus
locations,
post, at 246-247, even though that notion
necessarily presupposes that the danger of "symbolic union"
evaporates once the services are provided off campus. Taking this
view, the only difference between a constitutional program and an
unconstitutional one is the location of the classroom, since the
degree of cooperation between Title I instructors and parochial
school faculty is the same no matter where the services are
provided. We do not see any perceptible (let alone dispositive)
difference in the degree of symbolic union between a student
receiving remedial instruction in a classroom on his sectarian
school's campus and one receiving instruction in a van parked just
at the school's curbside. To draw this line based solely on
228
the location of the public employee is neither "sensible" nor
"sound,"
post, at 247, and the Court in
Zobrest
rejected it.
Nor under current law can we conclude that a program placing
full-time public employees on parochial campuses to provide Title I
instruction would impermissibly finance religious indoctrination.
In all relevant respects, the provision of instructional services
under Title I is indistinguishable from the provision of
sign-language interpreters under the IDEA. Both programs make aid
available only to eligible recipients. That aid is provided to
students at whatever school they choose to attend. Although Title I
instruction is provided to several students at once, whereas an
interpreter provides translation to a single student, this
distinction is not constitutionally significant. Moreover, as in
Zobrest, Title I services are by law supplemental to the
regular curricula. 34 CFR § 200. 12(a) (1996). These services do
not, therefore, "reliev[e] sectarian schools of costs they
otherwise would have borne in educating their students." 509 U. S.,
at 12.
JUSTICE SOUTER finds our conclusion that the IDEA and Title I
programs are similar to be "puzzling," and points to three
differences he perceives between the programs: (i) Title I services
are distributed by LEA's "directly to the religious schools"
instead of to individual students pursuant to a formal application
process; (ii) Title I services "necessarily reliev[e] a religious
school of 'an expense that it otherwise would have assumed'''; and
(iii) Title I provides services to more students than did the
programs in
Witters and
Zobrest. Post, at 251-252.
None of these distinctions is meaningful. While it is true that
individual students may not directly apply for Title I services, it
does not follow from this premise that those services are
distributed "directly to the religious schools,"
post, at
252. In fact, they are not. No Title I funds ever reach the coffers
of religious schools, cf.
Committee for Public Ed. and Religious
Liberty v.
Regan, 444 U. S. 646, 657-659
(1980) (involving a program giving "direct cash
229
reimbursement" to
religious schoo ls for performing
certain state-mandated tasks), and Title I services may not be
provided to religious schools on a schoolwide basis, 34 CFR § 200.
12(b) (1996). Title I funds are instead distributed to a
public agency (an LEA) that dispenses services directly to
the eligible students within its boundaries, no matter where they
choose to attend school. 20 U. S. C. §§ 6311, 6312. Moreover, we
fail to see how providing Title I services directly to eligible
students results in a greater financing of religious indoctrination
simply because those students are not first required to submit a
formal application.
We are also not persuaded that Title I services supplant the
remedial instruction and guidance counseling already provided in
New York City's sectarian schools. Although JUSTICE SOUTER
maintains that the sectarian schools provide such services and that
those schools reduce those services once their students begin to
receive Title I instruction, see
post, at
244,246,251-252,254, his claims rest on speculation about the
impossibility of drawing any line between supplemental and general
education, see
post, at 246, and not on any evidence in the
record that the Board is in fact violating Title I regulations by
providing services that supplant those offered in the sectarian
schools. See 34 CFR § 200.12(a) (1996). We are unwilling to
speculate that all sectarian schools provide remedial instruction
and guidance counseling to their students, and are unwilling to
presume that the Board would violate Title I regulations by
continuing to provide Title I services to students who attend a
sectarian school that has curtailed its remedial instruction
program in response to Title 1. Nor are we willing to conclude that
the constitutionality of an aid program depends on the number of
sectarian school students who happen to receive the otherwise
neutral aid.
Zobrest did not turn on the fact that James
Zobrest had, at the time of litigation, been the only child using a
publicly funded sign-language interpreter to attend a parochial
school. Accord,
Mueller v.
Allen, 463
230
u. S. 388, 401 (1983) ("We would be loath to adopt a rule
grounding the constitutionality of a facially neutral law on annual
reports reciting the extent to which various classes of private
citizens claimed benefits under the law").
What is most fatal to the argument that New York City's Title I
program directly subsidizes religion is that it applies with equal
force when those services are provided off campus, and
Aguilar implied that providing the services off campus is
entirely consistent with the Establishment Clause. JUSTICE SOUTER
resists the impulse to upset this implication, contending that it
can be justified on the ground that Title I services are "less
likely to supplant some of what would otherwise go on inside [the
sectarian schools] and to subsidize what remains" when those
services are offered off campus.
Post, at 247. But JUSTICE
SOUTER does not explain why a sectarian school would not have the
same incentive to "make patently significant cutbacks" in its
curriculum no matter where Title I services are offered, since the
school would ostensibly be excused from having to provide the Title
I-type services itself. See
ibid. Because the incentive is
the same either way, we find no logical basis upon which to
conclude that Title I services are an impermissible subsidy of
religion when offered on campus, but not when offered off campus.
Accordingly, contrary to our conclusion in
Aguilar, placing
full-time employees on parochial school campuses does not as a
matter of law have the impermissible effect of advancing religion
through indoctrination.
2
Although we examined in
Witters and
Zobrest the
criteria by which an aid program identifies its beneficiaries, we
did so solely to assess whether any use of that aid to indoctrinate
religion could be attributed to the State. A number of our
Establishment Clause cases have found that the criteria used for
identifying beneficiaries are relevant in a second respect, apart
from enabling a court to evaluate whether the program
231
subsidizes religion. Specifically, the criteria might themselves
have the effect of advancing religion by creating a financial
incentive to undertake religious indoctrination. Cf.
Witters, 474 U. S., at 488 (upholding neutrally available
program because it did not "creat[e a] financial incentive for
students to undertake sectarian education");
Zobrest, supra,
at 10 (upholding neutrally available IDEA aid because it "creates
no financial incentive for parents to choose a sectarian school");
accord,
post, at 253 (SOUTER, J., dissenting)
("[E]venhandedness is a necessary but not a sufficient condition
for an aid program to satisfy constitutional scrutiny"). This
incentive is not present, however, where 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 (1981)
("The provision of benefits to so broad a spectrum of groups is an
important index of secular effect").
In
Ball and
Aguilar, the Court gave this
consideration no weight. Before and since those decisions, we have
sustained programs that provided aid to
all eligible
children regardless of where they attended school. See,
e. g.,
Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 16-18 (1947)
(sustaining local ordinance authorizing all parents to deduct from
their state tax returns the costs of transporting their children to
school on public buses);
Board of Ed. of Central School Dist.
No.1 v.
Allen, 392 U. S. 236, 243-244
(1968) (sustaining New York law loaning secular textbooks to all
children);
Mueller v.
Allen, supra, at 398-399
(sustaining Minnesota statute allowing all parents to deduct actual
costs of tuition, textbooks, and transportation from state tax
returns);
Witters, supra, at 487-488 (sustaining Washington
law granting all eligible blind persons vocational assistance);
Zobrest, 509 U. S., at 10 (sustaining section of IDEA
providing all "disabled" children with necessary aid).
232
Applying this reasoning to New York City's Title I program, it
is clear that Title I services are allocated on the basis of
criteria that neither favor nor disfavor religion. 34 CFR §
200.10(b) (1996); see
supra, at 209-210. The services are
available to all children who meet the Act's eligibility
requirements, no matter what their religious beliefs or where they
go to school, 20 U. S. C. § 6312(c)(1)(F). The Board's program does
not, therefore, give aid recipients any incentive to modify their
religious beliefs or practices in order to obtain those
services.
3
We turn now to
Aguilar's conclusion that New York City's
Title I program resulted in an excessive entanglement between
church and state. Whether a government aid program results in such
an entanglement has consistently been an aspect of our
Establishment Clause analysis. We have considered entanglement both
in the course of assessing whether an aid program has an
impermissible effect of advancing religion,
Walz v.
Tax
Comm'n of City of New York, 397 U. S. 664, 674
(1970), and as a factor separate and apart from "effect,"
Lemon v.
Kurtzman, 403 U. S., at 612-613. Regardless
of how we have characterized the issue, however, the factors we use
to assess whether an entanglement is "excessive" are similar to the
factors we use to examine "effect." That is, to assess
entanglement, we have looked to "the character and purposes of the
institutions that are benefited, the nature of the aid that the
State provides, and the resulting relationship between the
government and religious authority."
Id., at 615. Similarly,
we have assessed a law's "effect" by examining the character of the
institutions benefited (e. g., whether the religious institutions
were "predominantly religious"), see
Meek, 421 U. S., at
363-364; cf.
Hunt v.
McNair, 413 U. S. 734, 743-744
(1973), and the nature of the aid that the State provided (e. g.,
whether it was neutral and nonideological), see
Everson,
supra, at 18;
Wolman, 433
233
u. S., at 244. Indeed, in
Lemon itself, the entanglement
that the Court found "independently" to necessitate the program's
invalidation also was found to have the effect of inhibiting
religion. See,
e. g., 403 U. S., at 620 ("[WJe cannot ignore
here the danger that pervasive modern governmental power will
ultimately intrude on religion ... "). Thus, it is simplest to
recognize why entanglement is significant and treat it-as we did in
Walz-as an aspect of the inquiry into a statute's
effect.
Not all entanglements, of course, have the effect of advancing
or inhibiting religion. Interaction between church and state is
inevitable, see 403 U. S., at 614, and we have always tolerated
some level of involvement between the two. Entanglement must be
"excessive" before it runs afoul of the Establishment Clause. See,
e. g., Bowen v.
Kendrick, 487 U. S., at 615-617 (no
excessive entanglement where government reviews the adolescent
counseling program set up by the religious institutions that are
grantees, reviews the materials used by such grantees, and monitors
the program by periodic visits);
Roemer v.
Board of
Public Works of Md., 426 U. S. 736, 764-765
(1976) (no excessive entanglement where State conducts annual
audits to ensure that categorical state grants to religious
colleges are not used to teach religion).
The
pre-Aguilar Title I program does not result in an
"excessive" entanglement that advances or inhibits religion. As
discussed previously, the Court's finding of "excessive"
entanglement in
Aguilar 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 Board
and parochial schools; and (iii) the program might increase the
dangers of "political divisiveness." 473 U. S., at 413-414. Under
our current understanding of the Establishment Clause, the last two
considerations are insufficient by themselves to create an
"excessive"
234
entanglement. They are present no matter where Title I services
are offered, and no court has held that Title I services cannot be
offered off campus.
Aguilar, supra (limiting holding to
on-premises services);
Walker v.
San Francisco Unified
School Dist., 46 F.3d
1449 (CA91995) (same);
Pulido v.
Cavazos,
934 F.2d
912, 919-920 (CA8 1991);
Committee for Public Ed. &
Religious Liberty v.
Secretary, United States Dept. of
Ed., 942 F. Supp. 842 (EDNY 1996) (same). Further, the
assumption underlying the first consideration has been undermined.
In
Aguilar, the Court presumed that full-time public
employees on parochial school grounds would be tempted to inculcate
religion, despite the ethical standards they were required to
uphold. Because of this risk
pervasive monitoring would be
required. But after
Zobrest we no longer presume that public
employees will inculcate religion simply because they happen to be
in a sectarian environment. Since we have abandoned the assumption
that properly instructed public employees will fail to discharge
their duties faithfully, we must also discard the assumption that
pervasive monitoring of Title I teachers is required. There
is no suggestion in the record before us that unannounced monthly
visits of public supervisors are insufficient to prevent or to
detect inculcation of religion by public employees. Moreover, we
have not found excessive entanglement in cases in which States
imposed far more onerous burdens on religious institutions than the
monitoring system at issue here. See
Bowen, supra, at
615-617.
To summarize, New York City's Title I program does not run afoul
of any of three primary criteria we currently use 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. We therefore hold that a federally funded program
providing supplemental, remedial instruction to disadvantaged
children on a neutral basis is not invalid under the Establishment
Clause when such instruc-
235
tion is given on the premises of sectarian schools by government
employees pursuant to a program containing safeguards such as those
present here. The same considerations that justify this holding
require us to conclude that this carefully constrained program also
cannot reasonably be viewed as an endorsement of religion. Accord,
Witters, 474 U. S., at 488-489 ("[T]he mere circumstance
that [an aid recipient] has chosen to use neutrally available state
aid to help pay for [a] religious education [does not] confer any
message of state endorsement of religion");
Bowen, supra, at
613-614 (finding no "'symbolic link'" when Congress made federal
funds neutrally available for adolescent counseling). Accordingly,
we must acknowledge that
Aguilar, as well as the portion of
Ball addressing Grand Rapids' Shared Time program, are no
longer good law.
C
The doctrine of
stare decisis does not preclude us from
recognizing the change in our law and overruling
Aguilar and
those portions of
Ball inconsistent with our more recent
decisions. As we have often noted,
"[s]tare decisis is not
an inexorable command,"
Payne v.
Tennessee, 501 U. S. 808, 828
(1991), but instead reflects a policy judgment that "in most
matters it is more important that the applicable rule of law be
settled than that it be settled right,"
Burnet v.
Coronado Oil &
Gas Co., 285 U. S. 393, 406 (1932)
(Brandeis, J., dissenting). That policy is at its weakest when we
interpret the Constitution because our interpretation can be
altered only by constitutional amendment or by overruling our prior
decisions.
Seminole Tribe of Fla. v.
Florida,
517 U. S. 44, 63
(1996); Payne, supra, at 828;
St. Joseph Stock Yards
Co. v.
United States, 298 U. S. 38, 94 (1936)
(Stone and Cardozo, JJ., concurring in result) ("The doctrine of
stare decisis ... has only a limited application in the
field of constitutional law"). Thus, we have held in several cases
that
stare decisis does not prevent us from overruling a
previous decision where
236
there has been a significant change in, or subsequent
development of, our constitutional law.
United States v.
Gaudin, 515 U.
S. 506, 521 (1995)
(stare decisis may yield where a
prior decision's "underpinnings [have been] eroded, by subsequent
decisions of this Court");
Alabama v.
Smith, 490 U. S. 794, 803 (1989)
(noting that a "later development of ... constitutionallaw" is a
basis for overruling a decision);
Planned Parenthood of
Southeastern Pa. v.
Casey, 505 U. S. 833, 857 (1992)
(observing that a decision is properly overruled where "development
of constitutional law since the case was decided has implicitly or
explicitly left [it] behind as a mere survivor of obsolete
constitutional thinking"). As discussed above, our Establishment
Clause jurisprudence has changed significantly since we decided
Ball and
Aguilar, so our decision to overturn those
cases rests on far more than "a present doctrinal disposition to
come out differently from the Court of [1985]."
Casey,
supra, at 864. We therefore overrule
Ball and
Aguilar to the extent those decisions are inconsistent with
our current understanding of the Establishment Clause.
Nor does the "law of the case" doctrine place any additional
constraints on our ability to overturn
Aguilar. Under this
doctrine, a court should not reopen issues decided in earlier
stages of the same litigation.
Messenger v.
Anderson,
225 U. S. 436,
444 (1912). The doctrine does not apply if the court is "convinced
that [its prior decision] is clearly erroneous and would work a
manifest injustice."
Arizona v.
California, 460 U. S. 605, 618, n. 8
(1983). In light of our conclusion that
Aguilar would be
decided differently under our current Establishment Clause law, we
think 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 (1974)
(Court of Appeals erred in adhering to law of the case doctrine
despite intervening Supreme Court precedent).
237
IV
We therefore conclude that our Establishment Clause law has
"significant[ly] change[d]" since we decided
Aguilar. See
Rufo, 502 U. S., at 384. We are only left to decide whether
this change in law entitles petitioners to relief under Rule
60(b)(5). We conclude that it does. Our general practice is to
apply the rule of law we announce in a case to the parties before
us.
Rodriguez de Quijas v.
Shearson/ American Express,
Inc., 490 U. S.
477, 485 (1989) ("The general rule of long standing is that the
law announced in the Court's decision controls the case at bar").
We adhere to this practice even when we overrule a case. In
Adarand Constructors, Inc. v.
Pena, 515 U. S. 200 (1995), for
example, the District Court and Court of Appeals rejected the
argument that racial classifications in federal programs should be
evaluated under strict scrutiny, relying upon our decision in
Metro Broadcasting, Inc. v.
FCC, 497 U. S. 547 (1990).
When we granted certiorari and overruled
Metro Broadcasting,
we did not hesitate to vacate the judgments of the lower courts. In
doing so, we necessarily concluded that those courts relied on a
legal principle that had not withstood the test of time. 515 U. S.,
at 237-238. See also
Hubbard v.
United States,
514 U. S. 695,
715 (1995) (overruling decision relied upon by Court of Appeals and
reversing the lower court's judgment that relied upon the overruled
case).
We do not acknowledge, and we do not hold, that other courts
should conclude our more recent cases have, by implication,
overruled an earlier precedent. We reaffirm that "[i]f a precedent
of this Court has direct application in a case, yet appears to rest
on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions."
Rodriguez de Quijas, supra, at 484. Adherence to this
teaching by the District Court and Court of Appeals in this
litigation does not insulate a legal principle on which they relied
from our review to deter-
238
mine its continued vitality. The trial court acted within its
discretion in entertaining the motion with supporting allegations,
but it was also correct to recognize that the motion had to be
denied unless and until this Court reinterpreted the binding
precedent.
Respondents and JUSTICE GINSBURG urge us to adopt a different
analysis because we are reviewing the District Court's denial of
petitioners' Rule 60(b)(5) motion for an abuse of discretion. See
Browder v.
Director, Dept. of Corrections of Ill.,
434 U. S. 257,
263, n. 7 (1978). It is true that the trial court has discretion,
but the exercise of discretion cannot be permitted to stand if we
find it rests upon a legal principle that can no longer be
sustained. See
Cooter &
Gell v.
Hartmarx
Corp., 496 U. S.
384,405 (1990). The standard of review we employ in this
litigation does not therefore require us to depart from our general
practice. See
Adarand, supra; Hubbard, supra.
Respondents nevertheless contend that we should not grant Rule
60(b)(5) relief here, in spite of its propriety in other contexts.
They contend that petitioners have used Rule 60(b)(5) in an
unprecedented way-not as a means of
recognizing changes in
the law, but as a vehicle for
effecting them. If we were to
sanction this use of Rule 60(b)(5), respondents argue, we would
encourage litigants to burden the federal courts with a deluge of
Rule 60(b)(5) motions premised on nothing more than the claim that
various judges or Justices have stated that the law has changed.
See also
post, at 260 (GINSBURG, J., dissenting) (contending
that granting Rule 60(b)(5) relief in this litigation will
encourage "invitations to reconsider old cases based on
'speculat[ions] on chances from changes in [the Court's
membership]"). We think their fears are overstated. As we noted
above, a judge's stated belief that a case should be overruled does
not make it so. See
supra, at 217.
Most importantly, our decision today is intimately tied to the
context in which it arose. This litigation involves a
239
party's request under Rule 60(b)(5) to vacate a continuing
injunction entered some years ago in light of a bona fide,
significant change in subsequent law. The clause of Rule 60(b)(5)
that petitioners invoke applies by its terms only to "judgment[s]
hav[ing] prospective application." Intervening developments in the
law by themselves rarely constitute the extraordinary circumstances
required for relief under Rule 60(b)(6), the only remaining avenue
for relief on this basis from judgments lacking any prospective
component. See 12 J. Moore et aI., Moore's Federal Practice §
60.48[5][b], p. 60-181 (3d ed. 1997) (collecting cases). Our
decision will have no effect outside the context of ordinary civil
litigation where the propriety of continuing prospective relief is
at issue. Cf.
Teague v.
Lane, 489 U. S. 288 (1989)
(applying a more stringent standard for recognizing changes in the
law and "new rules" in light of the "interests of comity" present
in federal habeas corpus proceedings). Given that Rule 60(b)(5)
specifically contemplates the grant of relief in the circumstances
presented here, it can hardly be said that we have somehow warped
the Rule into a means of "allowing an 'anytime' rehearing." See
post, at 259 (GINSBURG, J., dissenting).
Respondents further contend that "[p]etitioners' [p]roposed
[u]se of Rule 60(b) [w]ill [e]rode the [i]nstitutional [i]ntegrity
of the Court." Brief for Respondents 26. Respondents do not explain
how a proper application of Rule 60(b)(5) undermines our
legitimacy. Instead, respondents focus on the harm occasioned if we
were to overrule
Aguilar. But as discussed above, we do no
violence to the doctrine of
stare decisis when we recognize
bona fide changes in our decisional law. And in those
circumstances, we do no violence to the legitimacy we derive from
reliance on that doctrine.
Casey, 505 U. S., at 865-866.
As a final matter, we see no reason to wait for a "better
vehicle" in which to evaluate the impact of subsequent cases on
Aguilar's continued vitality. To evaluate the Rule
240
60(b)(5) motion properly before us today in no way undermines
"integrity in the interpretation of procedural rules" or signals
any departure from "the responsive, non-agendasetting character of
this Court."
Post, at 260 (GINSBURG, J., dissenting).
Indeed, under these circumstances, it would be particularly
inequitable for us to bide our time waiting for another case to
arise while the city of New York labors under a continuing
injunction forcing it to spend millions of dollars on mobile
instructional units and leased sites when it could instead be
spending that money to give economically disadvantaged children a
better chance at success in life by means of a program that is
perfectly consistent with the Establishment Clause.
For these reasons, we reverse the judgment of the Court of
Appeals and remand the cases to the District Court with
instructions to vacate its September 26, 1985, order.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, and with whom JUSTICE BREYER joins as to Part II,
dissenting.
In this novel proceeding, petitioners seek relief from an
injunction the District Court entered 12 years ago to implement our
decision in
Aguilar v.
Felton, 473 U. S. 402 (1985). For
the reasons given by JUSTICE GINSBURG, see
post, p. 255, the
Court's holding that petitioners are entitled to relief under
Federal Rule of Civil Procedure 60(b) is seriously mistaken. The
Court's misapplication of the Rule is tied to its equally erroneous
reading of our more recent Establishment Clause cases, which the
Court describes as having rejected the underpinnings of
Aguilar and portions of
Aguilar's companion case,
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373 (1985). The
result is to repudiate the very reasonable line drawn in
Aguilar and
Ball, and to authorize direct state aid
to religious institutions on an un-
241
paralleled scale, in violation of the Establishment Clause's
central prohibition against religious subsidies by the
government.
I respectfully dissent.
I
In both
Aguilar and
Ball, we held that
supplemental instruction by public school teachers on the premises
of religious schools during regular school hours violated the
Establishment Clause.
Aguilar, of course, concerned the very
school system before us here and the same Title I program at issue
now, see
ante, at 211-212, under which local educational
agencies receive public funds to provide remedial education,
guidance, and job counseling to eligible students, including those
attending religious schools. Immediately before
Aguilar, New
York City used Title I funds to provide guidance services and
classes in remedial reading, remedial mathematics, and English as a
second language to students at religious schools, as it did by
sending employees of the public school system, including teachers,
guidance counselors, psychologists, and social workers, into the
religious schools. See
Aguilar, supra, at 406.
Ball
involved a program similar in many respects to Title I called
Shared Time,l under which the local school district provided
religious school students with "supplementary" classes in their
religious schools, taught by teachers who were full-time employees
of the public schools, in subjects including remedial math and
reading, art, music, and physical education. See 473 U. S., at
375.
We held that both schemes ran afoul of the Establishment Clause.
The Shared Time program had the impermissible effect of promoting
religion in three ways: first, state-paid teachers conducting
classes in a sectarian environment might
1
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373 (1985),
also invalidated a separate program called Community Education that
is distinct from the Title I program at issue today. I do not
understand the Court's discussion to implicate
Ball's
evaluation of the Community Education program.
242
inadvertently (or intentionally) manifest sympathy with the
sectarian aims to the point of using public funds for religious
educational purposes, id., at 388; second, the government's
provision of secular instruction in religious schools produced a
symbolic union of church and state that tended to convey a message
to students and to the public that the State supported religion,
id., at 390-392; and, finally, the Shared Time program subsidized
the religious functions of the religious schools by assuming
responsibility for teaching secular subjects the schools would
otherwise be required to provide, id., at 395-396. Our decision in
Aguilar noted the similarity between the Title I and Shared
Time programs, and held that the system New York City had adopted
to monitor the religious content of Title I classes held in
religious schools would necessarily result in excessive
entanglement of church and state, and violate the Establishment
Clause for that reason. See 473 U. S., at 412-414.
As I will indicate as I go along, I believe
Aguilar was a
correct and sensible decision, and my only reservation about its
opinion is that the emphasis on the excessive entanglement produced
by monitoring religious instructional content obscured those facts
that independently called for the application of two central tenets
of Establishment Clause jurisprudence. The State is forbidden to
subsidize religion directly and is just as surely forbidden to act
in any way that could reasonably be viewed as religious
endorsement. See,
e. g., Ball, 473 U. S., at 385 ("Although
Establishment Clause jurisprudence is characterized by few
absolutes, the Clause does absolutely prohibit government-financed
or government-sponsored indoctrination into the beliefs of a
particular religious faith"); id., at 389 ("Government promotes
religion as effectively when it fosters a close identification of
its powers and responsibilities with those of anyor all-religious
denominations as when it attempts to inculcate specific religious
doctrines") (citing
Lynch v.
Donnelly, 465 U. S. 668, 688 (1984)
(O'CONNOR, J., concurring)).
243
As is explained elsewhere, the flat ban on subsidization
antedates the Bill of Rights and has been an unwavering rule in
Establishment Clause cases, qualified only by the conclusion two
Terms ago that state exactions from college students are not the
sort of public revenues subject to the ban. See
Rosenberger
v.
Rector and Visitors of Univ. of Va., 515 U. S. 819, 868-876
(1995) (SOUTER, J., dissenting); see also id., at 850 (O'CONNOR,
J., concurring). The rule expresses the hard lesson learned over
and over again in the American past and in the experiences of the
countries from which we have come, that religions supported by
governments are compromised just as surely as the religious freedom
of dissenters is burdened when the government supports religion.
"When the government favors a particular religion or sect, the
disadvantage to all others is obvious, but even the favored
religion may fear being 'taint[ed] ... with a corrosive
secularism.' The favored religion may be compromised as political
figures reshape the religion's beliefs for their own purposes; it
may be reformed as government largesse brings government
regulation."
Lee v.
Weisman, 505 U. S. 577, 608 (1992)
(Blackmun, J., concurring) (quoting
Ball, supra, at 385);
see also Memorial and Remonstrance against Religious Assessments
1785, in The Complete Madison 299, 309 (S. Padover ed. 1953)
("Religion flourishes in greater purity, without than with the aid
of Gov[ernment]"); M. Howe, The Garden and the Wilderness 6 (1965)
(noting Roger Williams's view that "worldly corruptions ... might
consume the churches if sturdy fences against the wilderness were
not maintained"). The ban against state endorsement of religion
addresses the same historical lessons. Governmental approval of
religion tends to reinforce the religious message (at least in the
short run) and, by the same token, to carry a message of exclusion
to those of less favored views. See,
e. g., Ball, supra, at
390 ("[A]n important concern of the effects test is whether the
symbolic union of church and state effected by the challenged
governmental action is sufficiently
244
likely to be perceived by adherents of the controlling
denominations as an endorsement, and by the nonadherents as a
disapproval, of their individual religious choices");
Lee,
supra, at 606-607 (Blackmun, J., concurring) ("When the government
puts its
imprimatur on a particular religion, it conveys a
message of exclusion to all those who do not adhere to the favored
beliefs. A government cannot be premised on the belief that all
persons are created equal when it asserts that God prefers some");
Engel v.
Vitale, 370 U. S. 421, 429 (1962)
("[A]nguish, hardship and bitter strife" result "when zealous
religious groups struggl[e] with one another to obtain the
Government's stamp of approval"). The human tendency, of course, is
to forget the hard lessons, and to overlook the history of
governmental partnership with religion when a cause is worthy, and
bureaucrats have programs. That tendency to forget is the reason
for having the Establishment Clause (along with the Constitution's
other structural and libertarian guarantees), in the hope of
stopping the corrosion before it starts.
These principles were violated by the programs at issue in
Aguilar and
Ball, as a consequence of several
significant features common to both Title I, as implemented in New
York City before
Aguilar, and the Grand Rapids Shared Time
program: each provided classes on the premises of the religious
schools, covering a wide range of subjects including some at the
core of primary and secondary education, like reading and
mathematics; while their services were termed "supplemental," the
programs and their instructors necessarily assumed responsibility
for teaching subjects that the religious schools would otherwise
have been obligated to provide, cf.
Wolman v.
Walter,
433 U. S. 229,
243 (1977) (provision of diagnostic tests to religious schools
provides only an incidental benefit); the public employees carrying
out the programs had broad responsibilities involving the exercise
of considerable discretion, cf.
Zobrest v.
Catalina
Foothills School Dist., 509 U. S. 1, 13 (1993)
(sign-language interpreter
245
must transmit exactly what is said);
Lemon v.
Kurtzman, 403 U. S. 602, 616-617 (1971) (distinguishing, for
Establishment Clause purposes, books provided by the State to
students from teachers paid by the State); while the programs
offered aid to nonpublic school students generally (and Title I
went to public school students as well), participation by religious
school students in each program was extensive, cf.
Witters
v.
Washington Dept. of Servs. for Blind, 474 U. S. 481, 488 (1986)
(only one student sought state tuition assistance for religious
education); and, finally, aid under Title I and Shared Time flowed
directly to the schools in the form of classes and programs, as
distinct from indirect aid that reaches schools only as a result of
independent private choice, cf.
Zobrest, supra, at 12
("[A]ny attenuated financial benefit that parochial schools do
ultimately receive ... is attributable to 'the private choices of
individual parents''') (quoting
Mueller v.
Allen,
463 U. S. 388,
400 (1983));
Witters, supra, at 487 (aid issued to students
reached religious institution "only as a result of the genuinely
independent and private choices of aid recipients");
Mueller,
supra, at 399-400 (same).
What, therefore, was significant in
Aguilar and
Ball about the placement of state-paid teachers into the
physical and social settings of the religious schools was not only
the consequent temptation of some of those teachers to reflect the
schools' religious missions in the rhetoric of their instruction,
with a resulting need for monitoring and the certainty of
entanglement. See
Aguilar, 473 U. S., at 412-414
(monitoring);
Ball, 473 U. S., at 388 (risk of
indoctrination). What was so remarkable was that the schemes in
issue assumed a teaching responsibility indistinguishable from the
responsibility of the schools themselves. The obligation of primary
and secondary schools to teach reading necessarily extends to
teaching those who are having a hard time at it, and the same is
true of math. Calling some classes remedial does not distinguish
their subjects from the schools' basic sub-
246
jects, however inadequately the schools may have been addressing
them.
What was true of the Title I scheme as struck down in
Aguilar will be just as true when New York reverts to the
old practices with the Court's approval after today. There is
simply no line that can be drawn between the instruction paid for
at taxpayers' expense and the instruction in any subject that is
not identified as formally religious. While it would be an obvious
sham, say, to channel cash to religious schools to be credited only
against the expense of "secular" instruction, the line between
"supplemental" and general education is likewise impossible to
draw. If a State may constitutionally enter the schools to teach in
the manner in question, it 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.
This Court explicitly recognized this in
Ball, supra, at
394, 396, and although in
Aguilar the Court concentrated on
entanglement it noted the similarity to
Ball, see
Aguilar, supra, at 409, and Judge Friendly's opinion for the
Second Circuit made it expressly clear that there was no stopping
place in principle once the public teacher entered the religious
schools to teach their secular subjects. See
Felton v.
Secretary, U. S.
Dept. of Education, 739 F.2d
48, 66-67 (CA2 1984), aff'd
sub nom. Aguilar v.
Felton, 473 U.
S. 402 (1985).
It may be objected that there is some subsidy in remedial
education even when it takes place off the religious premises, some
subsidy, that is, even in the way New York City has administered
the Title I program after
Aguilar. In these circumstances,
too, what the State does, the religious school need not do; the
schools save money and the program makes it easier for them to
survive and concentrate their resources on their religious
objectives. This argument may, of course, prove too much, but if it
is not thought strong enough to bar even off-premises aid in
teaching the basics to religious school pupils (an issue not before
the Court in
Aguilar or
247
today), it does nothing to undermine the sense of drawing a line
between remedial teaching on and off premises. The off-premises
teaching is arguably less likely to open the door to relieving
religious schools of their responsibilities for secular subjects
simply because these schools are less likely (and presumably
legally unable) to dispense with those subjects from their
curriculums or to make patently significant cutbacks in basic
teaching within the schools to offset the outside instruction; if
the aid is delivered outside of the schools, it is less likely to
supplant some of what would otherwise go on inside them and to
subsidize what remains. On top of that, the difference in the
degree of reasonably perceptible endorsement is substantial.
Sharing the teaching responsibilities within a school having
religious objectives is far more likely to telegraph approval of
the school's mission than keeping the State's distance would do.
This is clear at every level. As the Court observed in
Ball,
"[t]he symbolism of a union between church and state [effected by
placing the public school teachers into the religious schools] is
most likely to influence children of tender years, whose experience
is limited and whose beliefs consequently are the function of
environment as much as of free and voluntary choice." 473 U. S., at
390. When, moreover, the aid goes overwhelmingly to one religious
denomination, minimal contact between state and church is less
likely to feed the resentment of other religions that would like
access to public money for their own worthy projects.
In sum, if a line is to be drawn short of barring all state aid
to religious schools for teaching standard subjects, the
Aguilar-Ball line was a sensible one capable of principled
adherence. It is no less sound, and no less necessary, today.
II
The Court today ignores this doctrine and claims that recent
cases rejected the elemental assumptions underlying
Aguilar
and much of
Ball. But the Court errs. Its holding
248
that
Aguilar and the portion of
Ball addressing
the Shared Time program are "no longer good law,"
ante, at
235, rests on mistaken reading.
A
Zobrest v.
Catalina Foothills School Dist., 509 U.
S., at 13-14, held that the Establishment Clause does not prevent a
school district from providing a sign-language interpreter to a
deaf student enrolled in a sectarian school. The Court today relies
solely on
Zobrest to support its contention that we have
"abandoned the presumption erected in
Meek [v.
Pittenger, 421
U. S. 349 (1975),] 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."
Ante, at 223.
Zobrest, however, is no such sanction
for overruling
Aguilar or any portion of
Ball.
In
Zobrest, the Court did indeed recognize that the
Establishment Clause lays down no absolute bar to placing public
employees in a sectarian school, 509 U. S., at 13, and n. 10, but
the rejection of such a
per se rule was hinged expressly on
the nature of the employee's job, sign-language interpretation (or
signing) and the circumscribed role of the signer. On this point
(and without reference to the facts that the benefited student had
received the same aid before enrolling in the religious school and
the employee was to be assigned to the student, not to the school)
the Court explained itself this way: "[T]he task of a sign-language
interpreter seems to us quite different from that of a teacher or
guidance counselor .... Nothing in this record suggests that a
signlanguage interpreter would do more than accurately interpret
whatever material is presented to the class as a whole. In fact,
ethical guidelines require interpreters to 'transmit everything
that is said in exactly the same way it was intended.'"
Id.,
at 13. The signer could thus be seen as more like a hearing aid
than a teacher, and the signing could not be understood as an
opportunity to inject religious content
249
in what was supposed to be secular instruction.
Zobrest
accordingly holds only that in these limited circumstances where a
public employee simply translates for one student the material
presented to the class for the benefit of all students, the
employee's presence in the sectarian school does not violate the
Establishment Clause.
Id., at 13-14. Cf.
Lemon v.
Kurtzman, 403 U. S., at 617 ("[T]eachers have a
substantially different ideological character from books [and] [i]n
terms of potential for involving some aspect of faith or morals in
secular subjects, a textbook's content is ascertainable, but a
teacher's handling of a subject is not").
The Court, however, ignores the careful distinction drawn in
Zobrest and insists that a full-time public employee such as
a Title I teacher is just like the signer, asserting that "there is
no reason to presume that, simply because she enters a parochial
school classroom, [this] teacher will depart from her assigned
duties and instructions and embark on religious indoctrination ....
"
Ante, at 226. Whatever may be the merits of this position
(and I find it short on merit), it does not enjoy the authority of
Zobrest. The Court may disagree with
Ball's assertion
that a publicly employed teacher working in a sectarian school is
apt to reinforce the pervasive inculcation of religious beliefs,
but its disagreement is fresh law.
The Court tries to press
Zobrest into performing another
service beyond its reach. The Court says that
Ball and
Aguilar assumed "that the presence of a public employee on
private school property creates an impermissible 'symbolic link'
between government and religion,"
ante, at 224, and that
Zobrest repudiated this assumption,
ibid. First,
Ball and
Aguilar said nothing about the "mere
presence" of public employees at religious schools. It was
Ball that specifically addressed the point and held only
that when teachers employed by public schools are placed in
religious schools to provide instruction to students during the
schoolday a symbolic union of church and state is created and will
reasonably
250
be seen by the students as endorsement, see
Ball, 473 U.
S., at 390-392;
Aguilar adopted the same conclusion by
reference, see 473 U. S., at 409.
Zobrest did not,
implicitly or otherwise, repudiate the view that the involvement of
public teachers in the instruction provided within sectarian
schools looks like a partnership or union and implies approval of
the sectarian aim. On the subject of symbolic unions and the
strength of their implications, the lesson of
Zobrest is
merely that less is less.
B
The Court next claims that
Ball rested on the assumption
that "any and all 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."
Ante, at 222. After
Ball, the opinion continues, the Court departed from the
rule that "all government aid that directly assists the educational
function of religious schools is invalid."
Ante, at 225. But
this mischaracterizes
Ball's discussion on the point, and
misreads
Witters and
Zobrest as repudiating the more
modest proposition on which
Ball in fact rested.
Ball did not establish that "any and all" such aid to
religious schools necessarily violates the Establishment Clause. It
held that the Shared Time program subsidized the religious
functions of the parochial schools by taking over a significant
portion of their responsibility for teaching secular subjects. See
473 U. S., at 396-397. The Court noted that it had "never accepted
the mere possibility of subsidization ... as sufficient to
invalidate an aid program," and instead enquired whether the effect
of the proffered aid was" 'direct and substantial'" (and, so,
unconstitutional) or merely "indirect and incidental" (and, so,
permissible), emphasizing that the question" 'is one of degree.'"
Id., at 394 (quoting
Committee for Public Ed. &
Religious Liberty v.
Nyquist, 413 U. S. 756, 784-785,
n. 39 (1973), and
Zorach v.
Clauson, 343
251
u. S. 306, 314 (1952)).
Witters and
Zobrest did
nothing to repudiate the principle, emphasizing rather the limited
nature of the aid at issue in each case as well as the fact that
religious institutions did not receive it directly from the State.
In
Witters, the Court noted that the State would issue the
disputed vocational aid directly to one student who would then
transmit it to the school of his choice, and that there was no
record evidence that "any significant portion of the aid expended
under the Washington program as a whole will end up flowing to
religious education." 474 U. S., at
488. Zobrest also
presented an instance of a single beneficiary, see 509 U. S., at 4,
and emphasized that the student (who had previously received the
interpretive services in a public school) determined where the aid
would be used, that the aid at issue was limited, and that the
religious school was "not relieved of an expense that it otherwise
would have assumed in educating its students," id., at 12.
It is, accordingly, puzzling to find the Court insisting that
the aid scheme administered under Title I and considered in
Aguilar was comparable to the programs in
Witters and
Zobrest. Instead of aiding isolated individuals within a
school system, New York City's Title I program before
Aguilar served about 22,000 private school students, all but
52 of whom attended religious schools. See App. 313-314.2 Instead
of serving individual blind or deaf students, as such, Title I as
administered in New York City before
Aguilar (and as now to
be revived) funded instruction in core subjects (remedial reading,
reading skills, remedial mathemat-
2 The Court's refusal to recognize the extent of student
participation as relevant to the constitutionality of an aid
program, see
ante, at 229-230, ignores the contrary
conclusion in
Witters v.
Washington Dept. of Servs. for
Blind, 474 U. S.
481 (1986), on this very point. See
id., at 488 (noting,
among relevant factors, that "[n]o evidence ha[d] been presented
indicating that any other person ha[d] ever sought to finance
religious education or activity pursuant to the State's
program").
252
ics, English as a second language) and provided guidance
services. See
Aguilar, supra, at 406. Instead of providing a
service the school would not otherwise furnish, the Title I
services necessarily relieved a religious school of "an expense
that it otherwise would have assumed,"
Zobrest, supra, at
12, and freed its funds for other, and sectarian, uses.
Finally, instead of aid that comes to the religious school
indirectly in the sense that its distribution results from private
decisionmaking, a public educational agency distributes Title I aid
in the form of programs and services directly to the religious
schools. In
Zobrest and
Witters, it was fair to say
that individual students were themselves applicants for individual
benefits on a scale that could not amount to a systemic supplement.
But under Title I, a local educational agency (which in New York
City is the Board of Education) may receive federal funding by
proposing programs approved to serve individual students who meet
the criteria of need, which it then uses to provide such programs
at the religious schools, see App. 28-29, 38, 60, 242-243; students
eligible for such programs may not apply directly for Title I
funds.3 The aid, accordingly, is not even formally aid to the
individual students (and even formally individual aid must be seen
as aid to a school system when so many individuals receive it that
it becomes a significant feature of the system, see
Wolman
v.
Walter, 433 U. S., at 264 (opinion of Powell, J.)).
In sum, nothing since
Ball and
Aguilar and before
this litigation has eroded the distinction between "direct and
substantial" and "indirect and incidental." That principled line is
being breached only here and now.
3 For this reason, the Court's attempted analogy between Title I
and the Individuals with Disabilities Education Act fails, see
ante, at 228; James Zobrest, unlike students receiving Title
I services, applied individually for the interpretative services at
issue in
Zobrest v.
Catalina Foothills School Dist.,
509 U. S. 1, 4
(1993).
253
C
The Court notes that aid programs providing benefits solely to
religious groups may be constitutionally suspect, while aid
allocated under neutral, secular criteria is less likely to have
the effect of advancing religion.
Ante, at 230231. The
opinion then says that
Ball and
Aguilar "gave this
consideration no weight,"
ante, at 231, and accordingly
conflict with a number of decisions. But what exactly the Court
thinks
Ball and
Aguilar inadequately considered is
not clear, given that evenhandedness is a necessary but not a
sufficient condition for an aid program to satisfy constitutional
scrutiny. Title I services are available to all eligible children
regardless of whether they go to religious or public schools, but,
as I have explained elsewhere and am not alone in recognizing, see,
e. g., Rosenberger, 515 U. S., at 846-847 (O'CONNOR, J.,
concurring); id., at 879-885 (SOUTER, J., dissenting); see also
Bowen v.
Kendrick, 487 U. S. 589, 614, 621
(1988), that fact does not define the reach of the Establishment
Clause. If a scheme of government aid results in support for
religion in some substantial degree, or in endorsement of its
value, the formal neutrality of the scheme does not render the
Establishment Clause helpless or the holdings in
Aguilar and
Ball inapposite.
III
Finally, there is the issue of precedent.
Stare decisis
is no barrier in the Court's eyes because it reads
Aguilar
and
Ball for exaggerated propositions that
Witters
and
Zobrest are supposed to have limited to the point of
abandoned doctrine. Cf.
Patterson v.
McLean Credit
Union, 491 U. S.
164, 173-174 (1989). The Court's dispensation from
stare
decisis is, accordingly, no more convincing than its reading of
those cases. Since
Aguilar came down, no case has held that
there need be no concern about a risk that publicly paid school
teachers may further religious doctrine; no case has repudiated the
distinction between direct and substantial aid
254
and aid that is indirect and incidental; no case has held that
fusing public and private faculties in one religious school does
not create an impermissible union or carry an impermissible
endorsement; and no case has held that direct subsidization of
religious education is constitutional or that the assumption of a
portion of a religious school's teaching responsibility is not
direct subsidization.
The continuity of the law, indeed, is matched by the persistence
of the facts. When
Aguilar was decided everyone knew that
providing Title I services off the premises of the religious
schools would come at substantial cost in efficiency, convenience,
and money. Title I had begun off the premises in New York, after
all, and dissatisfaction with the arrangement was what led the city
to put the public school teachers into the religious schools in the
first place. See
Felton v.
Secretary, U. S.
Dept.
of Education, 739 F. 2d, at 51. When
Aguilar required
the end of that arrangement, conditions reverted to those of the
past and they have remained unchanged: teaching conditions are
often poor, it is difficult to move children around, and it costs a
lot of money. That is, the facts became once again what they were
once before, as everyone including the Members of this Court knew
they would be. No predictions have gone so awry as to excuse the
litigation from the claim of precedent, see
Burnet v.
Coronado Oil &
Gas Co., 285 U. S. 393, 412 (1932)
(Brandeis, J., dissenting), let alone excuse the Court from
adhering to its own prior decision in this very litigation.
That is not to deny that the facts just recited are regrettable;
the object of Title I is worthy without doubt, and the cost of
compliance is high. In the short run there is much that is
genuinely unfortunate about the administration of the scheme under
Aguilar's rule. But constitutional lines have to be drawn,
and on one side of every one of them is an otherwise sympathetic
case that provokes impatience with the Constitution and with the
line. But constitutional lines are the price of constitutional
government.
255
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JusTICE SOUTER, and
JUSTICE BREYER join, dissenting.
The Court today finds a way to rehear a legal question decided
in respondents' favor in this very case some 12 years ago. See
Aguilar v.
Felton, 473 U. S. 402 (1985).
Subsequent decisions, the majority says, have undermined
Aguilar and justify our immediate reconsideration. This
Court's Rules do not countenance the rehearing here granted. For
good reason, a proper application of those Rules and the Federal
Rules of Civil Procedure would lead us to defer reconsideration of
Aguilar until we are presented with the issue in another
case.
We have a rule on rehearing, Rule 44, but it provides only for
petitions filed within 25 days of the entry of the judgment in
question. See this Court's Rule 44.1. Although the Court or a
Justice may "shorte[n] or exten[d]" this period, I am aware of no
case in which we have extended the time for rehearing years beyond
publication of our adjudication on the merits. Cf.
Reid v.
Covert, 354 U.
S. 1 (1957) (original decision issued June 11, 1956; rehearing
granted Nov. 5, 1956);
Jones v.
Opelika, 319 U. S. 103 (1943)
(per curiam) (original decision issued October Term 1941;
rehearing granted October Term 1942). Moreover, nothing in our
procedures allows us to grant rehearing, timely or not, "except ...
at the instance of a Justice who concurred in the judgment or
decision." This Court's Rule 44.1. Petitioners have not been so
bold (or so candid) as to style their plea as one for rehearing in
this Court, and the Court has not taken up the petition at the
instance of JUSTICE STEVENS, the only still-sitting Member of the
Aguilar majority.
Lacking any rule or practice allowing us to reconsider the
Aguilar judgment directly, the majority accepts as a
substitute a rule governing relief from judgments or orders of the
federal trial courts. See Fed. Rule Civ. Proc. 60(b)(5). The
service to which Rule 60(b) has been impressed is unprecedented,
and neither the Court nor those urging reconsidera-
256
tion of
Aguilar contend otherwise. See,
e. g.,
ante, at 238; Tr. of Oral Arg. 11 (acknowledgment by counsel
for the United States that "we do not know of another instance in
which Rule 60(b) has been used in this way"). The Court makes
clear, fortunately, that any future efforts to expand today's
ruling will not be favored. See
ante, at 238-239. I
therefore anticipate that the extraordinary action taken in this
case will remain aberrational.
Rule 60(b) provides, in relevant part:
"On motion and upon such terms as are just, the [district] court
may relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reasons: ... (5)
... it is no longer equitable that the judgment should have
prospective application."
Under that Rule, a district court may, in its discretion, grant
relief from a final judgment with prospective effect if the party
seeking modification can show "a significant change either in
factual conditions or in law" that renders continued operation of
the judgment inequitable.
Rufo v.
Inmates of Suffolk
County Jail, 502
U. S. 367, 384 (1992) (addressing modification of consent
decree in institutional-reform setting); see 12 J. Moore, Moore's
Federal Practice §60.47[2][c], pp. 60-163 to 60-166 (3d ed. 1997);
11 C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 2863, pp. 336-347 (2d ed. 1995) (hereinafter Wright,
Miller, & Kane).
Appellate courts review denials of Rule 60(b) motions for abuse
of discretion. See
Browder v.
Director, Dept. of
Corrections of Ill., 434 U. S. 257, 263, n. 7
(1978);
Railway Employees v.
Wright, 364 U. S. 642, 648-650
(1961). As we recognized in our unanimous opinion in
Browder, "an appeal from denial of Rule 60(b) relief does
not bring up the underlying judgment for review." 434 U. S., at
263, n. 7. For in this context,
"[w]e are not framing a decree. We are asking ourselves whether
anything has happened that will justify
257
us now in changing a decree. The injunction, whether right or
wrong, is not subject to impeachment in its application to the
conditions that existed at its making. We are not at liberty to
reverse under the guise of readjusting." United States v.
Swift & Co., 286 U. S. 106, 119
(1932).
Cf.
Illinois v.
Illinois Central R. Co., 184 U. S. 77, 91-92 (1902)
(cautioning against entertaining successive appeals of legal
questions open to dispute in an initial appeal, and observing that
tolerance of such appeals would allow parties,
inter alia,
to "'speculate on chances from changes in [a court's] members''')
(quoting
Roberts v.
Cooper, 20 How. 467, 481
(1858)).
In short, relitigation of the legal or factual claims underlying
the original judgment is not permitted in a Rule 60(b) motion or an
appeal therefrom. See 11 Wright, Miller, & Kane § 2863, p. 340
(Rule 60(b) "does not allow relitigation of issues that have been
resolved by the judgment."); see also
Fortin v.
Commissioner, Mass. Dept. of Public Welfare, 692 F. 2d 790,
799 (CA1 1982) (warning against transformation of Rule 60(b)
"modification procedure into an impermissible avenue of collateral
attack"). Thus, under settled practice, the sole question
legitimately presented on appeal of the District Court's decision
denying petitioners' Rule 60(b)(5) motion to modify the
Aguilar injunction would be: Did the District Court abuse
its discretion when it concluded that neither the facts nor the law
had so changed as to warrant alteration of the injunction?
The majority acknowledges that there has been no significant
change in factual conditions. See
ante, at 216-217. The
majority also recognizes that
Aguilar had not been
overruled, but remained the governing Establishment Clause law,
until this very day. See
ante, at 217, 236. Because
Aguilar had not been overruled at the time the District
Court acted, the law the District Court was bound to respect had
not changed. The District Court therefore did
258
not abuse its discretion in denying petitioners' Rule 60(b)
motion.
We have declared that lower courts lack authority to determine
whether adherence to a judgment of this Court is inequitable. Those
courts must "follow the [Supreme Court] case which directly
controls, leaving to this Court the prerogative of overruling its
own decisions."
Rodriguez de Quijas v.
Shearson/American
Express, Inc., 490 U. S. 477, 484
(1989); see also
ante, at 237-238. The District Court would
have disobeyed the plain command of
Shearson/ American
Express had it granted petitioners' Rule 60(b) motion based
upon a view that our more recent Establishment Clause decisions are
in tension with
Aguilar.
Without the teaching of
Shearson/American Express, Rule
60(b) might have been employed in a case of this kind. Before that
firm instruction, lower courts sometimes inquired whether an
earlier ruling of this Court had been eroded to the point that it
was no longer good law. See,
e. g., Rowe v.
Peyton,
383 F.2d
709, 714 (CA4 1967), aff'd,
391 U. S. 54 (1968);
Perkins v.
Endicott Johnson Corp., 128 F. 2d 208,
217-218 (CA2 1942), aff'd,
317 U. S. 501 (1943);
Healy v.
Edwards, 363 F. Supp. 1110, 1117 (ED La.
1973), vacated and remanded for consideration of mootness,
421 U. S. 772 (1975)
(per curiam); Browder v.
Gayle, 142 F. Supp. 707,
716-717 (MD Ala.), summarily aff'd, 352 U. S. 903 (1956).
Shearson/American Express now controls, however, so the
District Court and Court of Appeals in this case had no choice but
to follow
Aguilar. Of course, "[a] district court would
necessarily abuse its discretion if it based its ruling on an
erroneous view of the law,"
Cooter &
Gell v.
Hartmarx Corp., 496 U. S. 384, 405 (1990)
(cited
ante, at 238), but the District Court made no legal
error in determining that
Aguilar had not been overruled.
And our appellate role here is limited to reviewing that
determination.
The Court says that the District Court was right to
"entertai[n]" the Rule 60(b) motion and also right to reject
it,
259
leaving to this Court the option of overruling our previously
binding decision. See
ante, at 238. The Court thus
acknowledges that Rule 60(b)(5) had no office to perform in the
District Court, given the no-competence instruction of
Shearson/American Express. All the lower courts could do was
pass the case up to us. The Court thus bends Rule 60(b) to a
purpose-allowing an "anytime" rehearing in this case-unrelated to
the governance of district court proceedings to which the Rule, as
part of the Federal Rules of Civil Procedure, is directed. See Fed.
Rule Civ. Proc. 1.
In an effort to make today's use of Rule 60(b) appear palatable,
the Court describes its decision not as a determination of whether
Aguilar should be overruled, but as an exploration whether
Aguilar already has been "so undermined ... that it is no
longer good law."
Ante, at 217-218; see also
ante, at
222-235. But nothing can disguise the reality that, until today,
Aguilar had not been overruled. Good or bad, it was in fact
the law.
Despite the problematic use of Rule 60(b), the Court "see[s] no
reason to wait for a 'better vehicle.'''
Ante, at 239. There
are such vehicles in motion, and the Court does not say otherwise.
See,
e. g., Committee for Public Ed. and Religious Liberty
v.
Secretary, U. S.
Dept. of Ed., 942 F. Supp. 842
(EDNY 1996)
(PEARL II); Helms v.
Cody, 856 F. Supp.
1102 (ED La. 1994); cf. Brief for U. S. Secretary of Education 45
(noting that a school district other than New York City could bring
an action against the Secretary to challenge an
Aguilar-based Title I funding decision). The
Helms
case, which has been appealed to the Fifth Circuit, involves an
Establishment Clause challenge to Louisiana's special education
program. In
PEARL II, the District Court upheld aspects of
New York City's current Title I program that were challenged under
the Establishment Clause. The plaintiffs filed a notice of appeal
in that case, but the parties later stipulated to withdraw the
appeal, without prejudice to reinstatement, pending our decision in
this case.
260
See Stipulation of Withdrawal of Appeal in
Committee for
Public Ed. and Religious Liberty v.
Secretary, U. S.
Dept. of Ed., No. 96-6329 (CA2) (filed Mar. 20, 1997).
Unlike the majority, I find just cause to await the arrival of
Helms, PEARL II, or perhaps another case in which our review
appropriately may be sought, before deciding whether
Aguilar
should remain the law of the land. That cause lies in the
maintenance of integrity in the interpretation of procedural rules,
preservation of the responsive, non-agenda-setting character of
this Court, and avoidance of invitations to reconsider old cases
based on "speculat[ions] on chances from changes in [the Court's
membership]."
Illinois Central R. Co., 184 U. S., at 92.
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