Agostini v. Felton, 521 U.S. 203, 47 (1997)

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Cite as: 521 U. S. 203 (1997)

Souter, J., dissenting

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

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