Opinion of the Court

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.†

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, petitioners— the parties bound by that injunction-seek relief from its operation. Petitioners maintain that Aguilar cannot be

†Briefs 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 Affairs 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 N. Eisenberg.

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.

Opinion of the Court

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.

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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

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campuses, as Congress had contemplated when it enacted Title I. 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

Opinion of the Court

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 I] 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.