In The

Supreme Court of the United States




Decided July 1, 1985

Justice O’Connor, Concurring in part and dissenting in part

Topic: First Amendment*Court vote: 5–4
Note: No other Justices joined this opinion.
Citation: 473 U.S. 373 Docket: 83–990Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring in the judgment in part and dissenting in part.

For the reasons stated in my dissenting opinion in Aguilar v. Felton, post, p. 473 U. S. 402, I dissent from the Court's holding that the Grand Rapids Shared Time program impermissibly advances religion. Like the New York Title I program, the Grand Rapids Shared Time program employs full-time public school teachers who offer supplemental instruction to parochial school children on the premises of religious schools. Nothing in the record indicates that Shared Time instructors have attempted to proselytize their students. I see no reason why public school teachers in Grand Rapids are any more likely than their counterparts in New York to disobey their instructions.

The Court relies on the District Court's finding that a

significant portion of the Shared Time instructors previously taught in nonpublic schools, and many of those had been assigned to the same nonpublic school where they were previously employed.

Americans United for Separation of Church and State v. School Dist. of Grand Rapids, 546 F.Supp. 1071, 1078 (WD Mich.1982). See ante at 473 U. S. 376, 473 U. S. 387, and n. 7. In fact, only 13 Shared Time instructors have ever been employed by any parochial school, and only a fraction of those 13 now work in a parochial school where they were previously employed. App.193. The experience of these few teachers does not significantly increase the risk that the perceived or actual effect of the Shared Time program will be to inculcate religion at public expense. I would uphold the Shared Time program.

I agree with the Court, however, that the Community Education program violates the Establishment Clause. The record indicates that Community Education courses in the parochial schools are overwhelmingly taught by instructors who are current full-time employees of the parochial school. The teachers offer secular subjects to the same parochial school students who attend their regular parochial school classes. In addition, the supervisors of the Community Education program in the parochial schools are, by and large, the principals of the very schools where the classes are offered. When full-time parochial school teachers receive public funds to teach secular courses to their parochial school students under parochial school supervision, I agree that the program has the perceived and actual effect of advancing the religious aims of the church-related schools. This is particularly the case where, as here, religion pervades the curriculum and the teachers are accustomed to bring religion to play in everything they teach. I concur in the judgment of the Court that the Community Education program violates the Establishment Clause.

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