OCTOBER TERM, 1999
Syllabus
MITCHELL ET AL.
v. HELMS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 98-1648. Argued December 1, 1999-Decided June 28, 2000
Chapter 2 of the Education Consolidation and Improvement Act of
1981 channels federal funds via state educational agencies (SEA's)
to local educational agencies (LEA's), which in turn lend
educational materials and equipment, such as library and media
materials and computer software and hardware, to public and private
elementary and secondary schools to implement "secular, neutral,
and nonideological" programs. The enrollment of each participating
school determines the amount of Chapter 2 aid that it receives. In
an average year, about 30% of Chapter 2 funds spent in Jefferson
Parish, Louisiana, are allocated for private schools, most of which
are Catholic or otherwise religiously affiliated. Respondents filed
suit alleging, among other things, that Chapter 2, as applied in
the parish, violated the First Amendment's Establishment Clause.
Agreeing, the Chief Judge of the District Court held, under
Lemon v.
Kurtzman, 403 U. S. 602, 612-613,
that Chapter 2 had the primary effect of advancing religion because
the materials and equipment loaned to the Catholic schools were
direct aid and the schools were pervasively sectarian. He relied
primarily on
Meek v.
Pittenger, 421 U. S. 349, and
Wolman v.
Walter, 433 U. S. 229, in which
programs providing many of the same sorts of materials and
equipment as does Chapter 2 were struck down, even though programs
providing for the loan of public school textbooks to religious
schools were upheld. After the judge issued an order permanently
excluding pervasively sectarian schools in the parish from
receiving any Chapter 2 materials or equipment, he retired. Another
judge then reversed that order, upholding Chapter 2 under,
inter
alia, Zobrest v.
Catalina Foothills School Dist.,
509 U. S. 1, in
which a public school district was allowed to provide a
sign-language interpreter to a deaf student at a Catholic high
school as part of a federal program for the disabled. While
respondents' appeal was pending, this Court decided
Agostini
v.
Felton, 521
U. S. 203, approving a program under Title I of the Elementary
and Secondary Education Act of 1965 that provided public employees
to teach remedial classes at religious and other private schools.
Concluding that
Agostini had neither directly overruled
Meek and
Wolman nor rejected their distinction
between textbooks and other in-kind aid, the Fifth Circuit relied
on those two cases to invalidate Chapter 2.
794
Syllabus
Held: The judgment is reversed.
151
F.3d 347, reversed.
JUSTICE THOMAS, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and
JUSTICE KENNEDY, concluded that Chapter 2, as applied in Jefferson
Parish, is not a law respecting an establishment of religion simply
because many of the private schools receiving Chapter 2 aid in the
parish are religiously affiliated. Pp. 807-836.
(a) In modifying the
Lemon test-which asked whether a
statute (1) has a secular purpose, (2) has a primary effect of
advancing or inhibiting religion, or (3) creates an excessive
entanglement between government and religion, see 403 U. S., at
612-613-Agostini examined only the first and second of those
factors, see 521 U. S., at 222-223, recasting the entanglement
inquiry as simply one criterion relevant to determining a statute's
effect,
id., at 232-233. The Court also acknowledged that
its cases had pared somewhat the factors that could justify a
finding of excessive entanglement.
Id., at 233-234. It then
set out three primary criteria for determining a statute's effect:
Government aid has the effect of advancing religion if it (1)
results in governmental indoctrination, (2) defines its recipients
by reference to religion, or (3) creates an excessive entanglement.
Ibid. In this case, the inquiry under
Agostini's
purpose and effect test is a narrow one. Because the District
Court's holding that Chapter 2 has a secular purpose is not
challenged, only Chapter 2's effect need be considered. Further, in
determining that effect, only the first two
Agostini
criteria need be considered, because the District Court's holding
that Chapter 2 does not create an excessive entanglement is not
challenged. Pp. 807-808.
(b) Whether governmental aid to religious schools results in
religious indoctrination ultimately depends on whether any
indoctrination that occurs could reasonably be attributed to
governmental action. See,
e. g., Agostini, 521 U. S., at
226. Moreover, the answer to the indoctrination question will
resolve the question whether an educational aid program
"subsidizes" religion. See
id., at 230-231. In
distinguishing between indoctrination that is attributable to the
State and indoctrination that is not, the Court has consistently
turned to the neutrality principle, upholding aid that is offered
to a broad range of groups or persons without regard to their
religion. As a way of assuring neutrality, the Court has repeatedly
considered whether any governmental aid to a religious institution
results from the genuinely independent and private choices of
individual parents,
e. g., id., at 226.
Agostini's
second primary criterion-whether an aid program defines its
recipients by reference to religion,
id., at 234-is closely
related to the first. It looks to the same facts as the neutrality
inquiry, see
id., at 225-226, but uses
795
those facts to answer a somewhat different question-whether the
criteria for allocating the aid create a financial incentive to
undertake religious indoctrination,
id., at 231. Such an
incentive is not present 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.
Ibid. Pp. 809-814.
(c) Two rules offered by respondents to govern the determination
whether Chapter 2 has the effect of advancing religion are
rejected. Pp. 814-825.
(i) Respondents' chief argument-that direct, nonincidental aid
to religious schools is always impermissible-is inconsistent with
this Court's more recent cases. The purpose of the direct/indirect
distinction is to prevent "subsidization" of religion, and the
Court's more recent cases address this concern through the
principle of private choice, as incorporated in the first
Agostini criterion (i.
e., whether any indoctrination
could be attributed to the government). If aid to schools, even
"direct aid," is neutrally available and, before reaching or
benefiting any religious school, first passes through the hands
(literally or figuratively) of numerous private citizens who are
free to direct the aid elsewhere, the government has not provided
any "support of religion."
Witters v.
Washington Dept. of
Servs.for Blind, 474 U. S. 481, 489.
Although the presence of private choice is easier to see when aid
literally passes through individuals' hands, there is no reason why
the Establishment Clause requires such a form. Indeed,
Agostini expressly rejected respondents' absolute line. 521
U. S., at 225. To the extent respondents intend their
direct/indirect distinction to require that any aid be literally
placed in schoolchildren's hands rather than given directly to
their schools,
Meek and
Wolman, the cases on which
they rely, demonstrate the irrelevance of such formalism. Further,
respondents' formalistic line breaks down in the application to
real-world programs. Whether a program is labeled "direct" or
"indirect" is a rather arbitrary choice that does not further the
constitutional analysis. See
Board of Ed. of Central School
Dist. No. 1 v.
Allen, 392 U. S. 236, 243-245.
Although "special Establishment Clause dangers" may exist when
money is given directly to religious schools, see,
e. g.,
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
842, such direct payments are not at issue here. Pp. 815-820.
(ii) Respondents' second argument-that provision to religious
schools of aid that is divertible to religious use is always
impermissible-is also inconsistent with the Court's more recent
cases, particularly
Zobrest, supra, at 18-23, and
Witters, and is also unworkable.
Meek and
Wolman, on which respondents appear to rely for their
divertibility rule, offer little, if any, support for their rule.
The issue is not diverti-
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Syllabus
bility but whether the aid itself has an impermissible content.
Where the aid would be suitable for use in a public school, it is
also suitable for use in any private school. Similarly, the
prohibition against the government providing impermissible content
resolves the Establishment Clause concerns that exist if aid is
actually diverted to religious uses. See,
e. g., Agostini,
supra, at 224-226. A concern for divertibility, as opposed to
improper content, is also misplaced because it is
boundlessenveloping all aid, no matter how trivial-and thus has
only the most attenuated (if any) link to any realistic concern for
preventing an establishment of religion. Finally,
any aid,
with or without content, is "divertible" in the sense that it
allows schools to "divert" resources. Yet the Court has not
accepted the recurrent argument that all aid is forbidden because
aid to one aspect of an institution frees it to spend its other
resources on religious ends.
E. g., Committee for Public Ed. and
Religious Liberty v.
Regan, 444 U. S. 646, 658.
Pp.820-825.
(d) Additional factors cited by the dissent-including the
concern for political divisiveness that
post-Aguilar v.
Felton, 473 U.
S. 402, cases have disregarded, see,
e. g., Agostini,
supra, at 233-234, are rejected. In particular, whether a
recipient school is pervasively sectarian, a factor that has been
disregarded in recent cases,
e. g., Witters, supra, is not
relevant to the constitutionality of a school-aid program. pp.
825-829.
(e) Applying the two relevant
Agostini criteria reveals
that there is no basis for concluding that Jefferson Parish's
Chapter 2 program has the effect of advancing religion. First,
Chapter 2 does not define its recipients by reference to religion,
since 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. 521 U. S., at 231. There is no improper incentive because,
under the statute, aid is allocated based on school enrollment.
Second, Chapter 2 does not result in governmental indoctrination of
religion. It determines eligibility for aid neutrally, making a
broad array of schools eligible without regard to their religious
affiliations or lack thereof. See
id., at 225-226. It also
allocates aid based on the private choices of students and their
parents as to which schools to attend. See
id., at 222.
Thus, it is not problematic that Chapter 2 could fairly be
described as providing "direct" aid. Finally, the Chapter 2 aid
provided to religious schools does not have an impermissible
content. The statute explicitly requires that such aid be "secular,
neutral, and nonideological," and the record indicates that the
Louisiana SEA and the Jefferson Parish LEA have faithfully enforced
this requirement insofar as relevant to this case. Although there
is evidence that equipment has been, or at least easily could be,
diverted for use in religious classes, that evidence is not
relevant to the constitutional analysis.
797
Scattered
de minimis statutory violations of the
restrictions on content, discovered and remedied by the relevant
authorities themselves before this litigation began almost 15 years
ago, should not be elevated to such a level as to convert an
otherwise unobjectionable parishwide program into a law that has
the effect of advancing religion. Pp. 829-835.
(f) To the extent that
Meek and
Wolman conflict
with the foregoing analysis, they are overruled. Pp. 835-836.
JUSTICE O'CONNOR, joined by JUSTICE BREYER, concluded that
Agostini v.
Felton, 521 U. S. 203, controls
the constitutional inquiry presented here, and requires reversal of
the Fifth Circuit's judgment that the Chapter 2 program is
unconstitutional as applied in Jefferson Parish. To the extent
Meek v.
Pittenger, 421 U. S. 349, and
Wolman v.
Walter, 433 U. S. 229, are
inconsistent with the Court's judgment today, they should be
overruled. Pp. 836-867.
(a) The plurality announces a rule of unprecedented breadth for
the evaluation of Establishment Clause challenges to government
school-aid programs. That rule is particularly troubling because,
first, its treatment of neutrality comes close to assigning that
factor singular importance in the future adjudication of
Establishment Clause challenges to school-aid programs. Although
neutrality is important, see,
e. g., Agostini,
521 U. S., at 228, 231-232, the Court has never held that a
government-aid program passes constitutional muster
solely
because of the neutral criteria it employs as a basis for
distributing aid. Rather, neutrality has heretofore been only one
of several factors the Court considers. See,
e. g.,
id., at 226-228. Second, the plurality's approval of actual
diversion of government aid to religious indoctrination is in
tension with this Court's precedents. See,
e. g.,
id., at 226-227. Actual diversion is constitutionally
impermissible.
E. g., Bowen v.
Kendrick, 487 U. S. 589, 621-622,
624. The Court should not treat a per-capita-aid program like
Chapter 2 the same as the true private choice programs approved in
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481,
and
Zobrest v.
Catalina Foothills School Dist.,
509 U. S. 1.
Because
Agostini represents the Court's most recent attempt
to devise a general framework for approaching questions concerning
neutral school-aid programs, and involved an Establishment Clause
challenge to a school-aid program closely related to the instant
program, the
Agostini criteria should control here. Pp.
837-844.
(b) Under
Agostini, the Court asks whether the government
acted with the purpose of advancing or inhibiting religion and
whether the aid has the "effect" of doing so. 521 U. S., at
222-223. The specific criteria used to determine an impermissible
effect have changed in recent cases, see
id., at 223, which
disclose three primary criteria to guide the determination: (1)
whether the aid results in governmental indoctri-
798
Syllabus
nation, (2) whether the program defines its recipients by
reference to religion, and (3) whether the aid creates an excessive
entanglement between government and religion,
id., at 234.
Finally, the same criteria can be reviewed to determine whether a
program constitutes endorsement ofreligion.
Id., at 235.
Respondents neither question the Chapter 2 program's secular
purpose nor contend that it creates an excessive entanglement.
Accordingly, the Court need ask only whether Chapter 2, as applied
in Jefferson Parish, results in governmental indoctrination or
defines its recipients by reference to religion. It is clear that
Chapter 2 does not so define aid recipients. Rather, it uses wholly
neutral and secular criteria to allocate aid to students enrolled
in religious and secular schools alike. As to the indoctrination
inquiry, the Chapter 2 program bears the same hallmarks of the
program upheld in
Agostini:
Aid is allocated on the basis of neutral, secular criteria; it
is supplementary to, and does not supplant, nonfederal funds; no
Chapter 2 funds reach the coffers of religious schools; the aid is
secular; evidence of actual diversion is
de minimis; and the
program includes adequate safeguards. Regardless of whether these
factors are constitutional requirements, they are sufficient to
find that the program at issue does not have the impermissible
effect of advancing religion. For the same reasons, the Chapter 2
program cannot reasonably be viewed as an endorsement of religion.
Pp. 844-849.
(c) Respondents' contentions that
Agostini is
distinguishable and that
Meek and
Wolman are
controlling here must be rejected.
Meek and
Wolman
created an inexplicable rift within the Court's Establishment
Clause jurisprudence. Those decisions adhered to the prior holding
in
Board of Ed. of Central School Dist. No.1 v.
Allen, 392 U.
S. 236, that statutes authorizing the lending of textbooks to
religious school students did not violate the Establishment Clause,
see,
e. g., Meek, 421 U. S., at 359-362 (plurality opinion),
but invalidated the lending of instructional materials and
equipment to religious schools,
e. g., id., at
362-366, on the ground that any assistance in support of the
pervasively sectarian schools' educational missions would
inevitably have the impermissible effect of advancing religion,
see,
e. g., id., at 365-366. The irrationality of
this distinction is patent. See
Wallace v.
Jaffree,
472 U. S. 38, 110.
Respondents' assertion that materials and equipment, unlike
textbooks, are reasonably divertible to religious uses is rejected
because it does not provide a logical distinction: An educator can
use virtually any instructional tool, even a textbook, to teach a
religious message. Pp. 849-857.
(d) The Court should follow the rule applied in the context of
textbook lending programs: To establish a First Amendment
violation, plaintiffs must prove that the aid actually is, or has
been, used for religious
799
purposes. See,
e. g., Allen, supra, at 248.
Agostini and the cases on which it relied have undermined
the assumptions underlying
Meek and
Wolman.
Agostini's definitive rejection of the presumption that
public-school employees teaching in religious schools would
inevitably inculcate religion also stood for-or at least strongly
pointed to-the broader proposition that such presumptions of
religious indoctrination are normally inappropriate when evaluating
neutral school-aid programs under the Establishment Clause.
Respondents' contentions that
Agostini should be limited to
its facts, and that a presumption of religious inculcation for
instructional materials and equipment should be retained, must be
rejected. The assumption that religious-school instructors can
abide by restrictions on the use of government-provided textbooks,
see
Meek, supra, at 384, should extend to instructional
materials and equipment.
School Dist. of Grand Rapids v.
Ball, 473 U.
S. 373, 399-400 (O'CONNOR, J., concurring in judgment in part
and dissenting in part), distinguished. Pp. 857-860.
(e) Respondents' contention that the actual administration of
Chapter 2 in Jefferson Parish violated the Establishment Clause is
rejected. The limited evidence amassed by respondents during 4
years of discovery (which began approximately 15 years ago) is at
best
de minimis and therefore insufficient to affect the
constitutional inquiry. Their assertion that the government must
have a failsafe mechanism capable of detecting
any instance
of diversion was rejected in
Agostini, supra, at 234.
Because the presumption adopted in
Meek and
Wolman
respecting the use of instructional materials and equipment by
religious-school teachers should be abandoned, there is no
constitutional need for
pervasive monitoring under the
Chapter 2 program. Moreover, a review of the specific safeguards
employed under Chapter 2 at the federal, state, and local levels
demonstrates that they are constitutionally sufficient.
Respondents' evidence does not demonstrate any actual diversion,
but, at most, proves the possibility of diversion in two isolated
instances. The evidence of violations of Chapter 2's supplantation
and secularcontent restrictions is equally insignificant and,
therefore, should be treated the same. This Court has never
declared an entire aid program unconstitutional on Establishment
Clause grounds solely because of violations on the minuscule scale
of those at issue here. The presence of so few examples tends to
show not that the "no-diversion" rules have failed, but that they
have worked. Pp. 860-867.
THOMAS, J., announced the judgment of the Court and delivered an
opinion, in which REHNQUIST, C. J., and SCALIA and KENNEDY, JJ.,
joined. O'CONNOR, J., filed an opinion concurring in the judgment,
in which
800
Syllabus
BREYER, J., joined,
post, p. 836. SOUTER, J., filed a
dissenting opinion, in which STEVENS and GINSBURG, JJ., joined,
post, p. 867.
Michael W McConnell argued the cause for petitioners.
With him on the briefs were Patricia A. Dean, Andrew T. Karron,
John C. Massaro, and Steffen N. Johnson.
Deputy Solicitor General Underwood argued the cause for
respondents. With her on the briefs were Solicitor General Waxman,
Acting Assistant Attorney General Ogden, Paul R.
Q. Wolfson,
Michael Jay Singer, and Howard S. Scher.
Lee Boothby argued the cause for respondents. With him on
the brief was
Nicholas P. Miller.*
*Briefs of
amici curiae urging reversal were filed for
the State of Ohio et al. by
Betty D. Montgomery, Attorney
General of Ohio,
Edward B. Foley, State Solicitor,
Robert C.
Maier, Assistant Solicitor, and by the
Attorneys General for their respective States as follows:
Ken
Salazar of Colorado,
Robert A. Butterworth of Florida,
James E. Ryan of Illinois,
Thomas J.
Miller of Iowa,
Carla J. Stovall of
Kansas,
Richard P. Ieyoub of Louisiana,
Jennifer M.
Granholm of Michigan,
Mike Moore of Mississippi,
Don
Stenberg of Nebraska,
John J. Farmer, Jr.,
of New Jersey,
Charles M. Condon of South Carolina, and
Mark L. Earley of Virginia; for the City of New York et al.
by
Michael D. Hess, Leonard J. Koerner, and
Edward F.
X. Hart; for the American Center for Law
and Justice by
Jay Alan Sekulow, John P. Tuskey, Walter W Weber,
Colby M. May, and
Vincent P. McCarthy; for the Arizona
Council for Academic Private Education et al. by
Edward McGlynn
Gaffney, Jr., and
David J. Hessler; for
the AVI CHAI Foundation by
Nathan Lewin, Julia E. Guttman,
and
Jody Manier Kris; for the Becket Fund for Religious
Liberty by
Kevin J. Hasson and
Eric W
Treene; for the Catholic League for Religious and Civil Rights
by
Robert P. George; for the Knights of Columbus by
Kevin
T. Baine and
Emmet T. Flood; for the United States
Catholic Conference by
Mark E. Chopko, John A. Liekweg, and
Jeffrey Hunter Moon; and for the Washington Legal Foundation
by
Daniel J. Popeo and
R. Shawn
Gunnarson.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Drew S.
Days
III, Anthony M. Radice, Lev L. Dassin, and
Laura R.
Taichman; for the Baptist Joint Committee on Public Mfairs by
Melissa Rogers and
J. Brent Walker; for the
Interfaith Religious Liberty Foundation et al. by
Derek
Davis and
Alan J. Reinach; for the
National Committee for Public Education and Religious Liberty et
al. by
Marshall Beil and
Philip Goldstein; for the
National Education
801
JUSTICE THOMAS announced the judgment of the Court and delivered
an opinion, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE
KENNEDY join.
As part of a longstanding school-aid program known as Chapter 2,
the Federal Government distributes funds to state and local
governmental agencies, which in turn lend educational materials and
equipment to public and private schools, with the enrollment of
each participating school determining the amount of aid that it
receives. The question is whether Chapter 2, as applied in
Jefferson Parish, Louisiana, is a law respecting an establishment
of religion, because many of the private schools receiving Chapter
2 aid in that parish are religiously affiliated. We hold that
Chapter 2 is not such a law.
I A
Chapter 2 of the Education Consolidation and Improvement Act of
1981, Pub. L. 97-35, 95 Stat. 469, as amended, 20 U. S. C. §§
7301-7373,1 has its origins in the Elementary and Secondary
Education Act of 1965 (ESEA), Pub. L. 89-10, 79 Stat. 55, and is a
close cousin of the provision of the ESEA
Association by Robert H. Chanin, Jeremiah A. Collins, and
Michael D. Simpson; for the National Jewish Commission on Law and
Public Affairs by Dennis Rapps, David Zwiebel, Nathan Diament, and
Nathan Lewin; and for the National School Boards Association et al.
by Julie Underwood, Jay Worona, and Pilar Sokol.
Briefs of
amici curiae were filed for the Christian Legal
Society et al. by
Steven T. McFarland, Samuel B. Casey, and
Carl H. Esbeck; for the Institute for Justice et al. by
William H. Mellor and
Clint Bolick; for the Pacific
Legal Foundation by
Sharon L. Browne and
Deborah
J. La Fetra; and for the Rutherford Institute by
John W Whitehead and
Steven H. Aden.
1 Chapter 2 is now technically Subchapter VI of Chapter 70 of 20
U. S.
C., where it was codified by the Improving America's
Schools Act of 1994, Pub. L. 103-382, 108 Stat. 3707. For
convenience, we will use the term "Chapter 2," as the lower courts
did. Prior to 1994, Chapter 2 was codified at 20 U. S. C. §§
2911-2976 (1988 ed.).
802
Opinion of THOMAS, J.
that we recently considered in
Agostini v.
Felton,
521 U. S. 203
(1997). Like the provision at issue in
Agostini, Chapter 2
channels federal funds to local educational agencies (LEA's), which
are usually public school districts, via state educational agencies
(SEA's), to implement programs to assist children in elementary and
secondary schools. Among other things, Chapter 2 provides aid
"for the acquisition and use of instructional and educational
materials, including library services and materials (including
media materials), assessments, reference materials, computer
software and hardware for instructional use, and other curricular
materials." 20 U. S. C. § 7351(b)(2).
LEA's and SEA's must offer assistance to both public and private
schools (although any private school must be nonprofit). §§
7312(a), 7372(a)(1). Participating private schools receive Chapter
2 aid based on the number of children enrolled in each school, see
§ 7372(a)(1), and allocations of Chapter 2 funds for those schools
must generally be "equal (consistent with the number of children to
be served) to expenditures for programs ... for children enrolled
in the public schools of the [LEA]," § 7372(b). LEA's must in all
cases "assure equitable participation" of the children of private
schools "in the purposes and benefits" of Chapter 2. § 7372(a)(1);
see § 7372(b). Further, Chapter 2 funds may only "supplement and,
to the extent practical, increase the level of funds that would ...
be made available from nonFederal sources." § 7371(b). LEA's and
SEA's may not operate their programs "so as to supplant funds from
nonFederal sources."
Ibid.
Several restrictions apply to aid to private schools. Most
significantly, the "services, materials, and equipment" provided to
private schools must be "secular, neutral, and nonideological." §
7372(a)(1). In addition, private schools may not acquire control of
Chapter 2 funds or title to Chapter 2
803
materials, equipment, or property. § 7372(c)(1). A private
school receives the materials and equipment listed in § 7351(b)(2)
by submitting to the LEA an application detailing which items the
school seeks and how it will use them; the LEA, if it approves the
application, purchases those items from the school's allocation of
funds, and then lends them to that school.
In Jefferson Parish (the Louisiana governmental unit at issue in
this case), as in Louisiana as a whole, private schools have
primarily used their allocations for nonrecurring expenses, usually
materials and equipment. In the 1986-1987 fiscal year, for example,
44% of the money budgeted for private schools in Jefferson Parish
was spent by LEA's for acquiring library and media materials, and
48% for instructional equipment. Among the materials and equipment
provided have been library books, computers, and computer software,
and also slide and movie projectors, overhead projectors,
television sets, tape recorders, VCR's, projection screens,
laboratory equipment, maps, globes, filmstrips, slides, and
cassette recordings.2
It appears that, in an average year, about 30% of Chapter 2
funds spent in Jefferson Parish are allocated for private schools.
For the 1985-1986 fiscal year, 41 private schools participated in
Chapter 2. For the following year, 46 participated, and the
participation level has remained relatively constant since then.
See App. 132a. Of these 46, 34 were Roman Catholic; 7 were
otherwise religiously affiliated; and 5 were not religiously
affiliated.
B
Respondents filed suit in December 1985, alleging, among other
things, that Chapter 2, as applied in Jefferson Parish,
2 Congress in 1988 amended the section governing the sorts of
materials and equipment available under Chapter 2. Compare 20 U. S.
C. § 3832(1)(B) (1982 ed.) with § 7351(b)(2) (1994 ed.). The record
in this case closed in 1989, and the effect of the amendment is not
at issue.
804
Opinion of THOMAS, J.
violated the Establishment Clause of the First Amendment of the
Federal Constitution. The case's tortuous history over the next 15
years indicates well the degree to which our Establishment Clause
jurisprudence has shifted in recent times, while nevertheless
retaining anomalies with which the lower courts have had to
struggle.
In 1990, after extended discovery, Chief Judge Heebe of the
District Court for the Eastern District of Louisiana granted
summary judgment in favor of respondents.
Helms v.
Cody, Civ. A. No. 85-5533,1990 WL 36124 (Mar. 27), App. to
Pet. for Cert. 137a. He held that Chapter 2 violated the
Establishment Clause because, under the second part of our
three-part test in
Lemon v.
Kurtzman, 403 U. S. 602, 612-613
(1971), the program had the primary effect of advancing religion.
Chapter 2 had such effect, in his view, because the materials and
equipment loaned to the Catholic schools were direct aid to those
schools and because the Catholic schools were, he concluded after
detailed inquiry into their doctrine and curriculum, "pervasively
sectarian." App. to Pet. for Cert. 151a. Chief Judge Heebe relied
primarily on
Meek v.
Pittenger, 421 U. S. 349 (1975), and
Wolman v.
Walter, 433 U. S. 229 (1977), in
which we held unconstitutional programs that provided many of the
same sorts of materials and equipment as does Chapter 2. In 1994,
after having resolved the numerous other issues in the case, he
issued an order permanently excluding pervasively sectarian schools
in Jefferson Parish from receiving any Chapter 2 materials or
equipment.
Two years later, Chief Judge Heebe having retired, Judge
Livaudais received the case. Ruling in early 1997 on postjudgment
motions, he reversed the decision of former Chief Judge Heebe and
upheld Chapter 2, pointing to several significant changes in the
legal landscape over the previous seven years.
Helms v.
Cody, 1997 WL 35283 (Jan. 28), App. to Pet. for Cert. 79a.
In particular, Judge Livaudais cited our 1993 decision in
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1, in which we
held that a State could, as part
805
of a federal program for the disabled, provide a signlanguage
interpreter to a deaf student at a Catholic high school.
Judge Livaudais also relied heavily on a 1995 decision of the
Court of Appeals for the Ninth Circuit,
Walker v.
San
Francisco Unified School Dist., 46 F.3d
1449, upholding Chapter 2 on facts that he found "virtually
indistinguishable." The Ninth Circuit acknowledged in
Walker, as Judge Heebe had in his 1990 summary judgment
ruling, that
Meek and
Wolman appeared to erect a
constitutional distinction between providing textbooks
(permissible) and providing any other in-kind aid (impermissible).
46 F. 3d, at 14641465; see
Board of Ed. of Central School Dist.
No.1 v.
Allen, 392 U. S. 236 (1968)
(upholding textbook program). The Court of Appeals viewed this
distinction, however, as "thin" and "unmoored from any
Establishment Clause principles," and, more importantly, as
"rendered untenable" by subsequent cases, particularly
Zobrest. 46 F. 3d, at 1465-1466. These cases, in the Ninth
Circuit's view, revived the principle of
Allen and of
Everson v.
Board of Ed. of Ewing,3 that "state
benefits provided to all citizens without regard to religion are
constitutional." 46 F. 3d, at 1465. The Ninth Circuit also relied,
id., at 1467, on our observation in
Board of Ed. of
Kiryas Joel Village School Dist. v.
Grumet, 512 U. S. 687 (1994),
that "we have frequently relied explicitly on the general
availability of any benefit provided religious groups or
individuals in turning aside Establishment Clause challenges,"
id., at 704. The Ninth Circuit purported to distinguish
Meek and
Wolman based on the percentage of schools
receiving aid that were parochial (a large percentage in those
cases and a moderate percentage in
Walker), 46 F. 3d, at
1468, but that court undermined this distinction when it observed
that
Meek also upheld "the massive provision of text-
3 Everson v.
Board of Ed. of Ewing, 330 U. S. 1 (1947)
(upholding reimbursement to parents for costs of busing their
children to public or private school).
806
Opinion of THOMAS, J.
books to parochial schools." 46 F. 3d, at 1468, n. 16. Thus,
although the Ninth Circuit did not explicitly hold that
Meek
and
Wolman were no longer good law, its reasoning seemed to
require that conclusion.
Finally, in addition to relying on our decision in
Zobrest and the Ninth Circuit's decision in
Walker,
Judge Livaudais invoked
Rosenberger v.
Rector and
Visitors of Univ. of Va., 515 U. S. 819 (1995), in
which, a few months after
Walker, we held that the
Establishment Clause does not require a public university to
exclude a student-run religious publication from assistance
available to numerous other student-run publications.
Following Judge Livaudais' ruling, respondents appealed to the
Court of Appeals for the Fifth Circuit. While that appeal was
pending, we decided
Agostini, in which we approved a program
that, under Title I of the ESEA, provided public employees to teach
remedial classes at private schools, including religious schools.
In so holding, we overruled
Aguilar v.
Felton,
473 U. S. 402
(1985), and partially overruled
School Dist. of Grand Rapids
v.
Ball, 473
U. S. 373 (1985), both of which had involved such a
program.
The Fifth Circuit thus faced a dilemma between, on the one hand,
the Ninth Circuit's holding and analysis in
Walker and our
subsequent decisions in
Rosenberger and
Agostini,
and, on the other hand, our holdings in
Meek and
Wolman. To resolve the dilemma, the Fifth Circuit abandoned
any effort to find coherence in our case law or to divine the
future course of our decisions and instead focused on our
particular holdings.
Helms v.
Picard, 151 F.3d
347, 371 (1998). It thought such an approach required not only
by the lack of coherence but also by
Agostini's admonition
to lower courts to abide by any applicable holding of this Court
even though that holding might seem inconsistent with our
subsequent decisions, see
Agostini, 521 U. S., at 237. The
Fifth Circuit acknowledged that
Agostini, by recognizing our
rejection of the rule that "all government aid that directly
assists the
807
educational function of religious schools is invalid,"
id., at 225, had rejected a premise of
Meek, but that
court nevertheless concluded that
Agostini had neither
directly overruled
Meek and
Wolman nor rejected their
distinction between textbooks and other in-kind aid. The Fifth
Circuit therefore concluded that
Meek and
Wolman
controlled, and thus it held Chapter 2 unconstitutional. We granted
certiorari. 527 U. S. 1002 (1999).
II
The Establishment Clause of the First Amendment dictates that
"Congress shall make no law respecting an establishment of
religion." In the over 50 years since
Everson v.
Board of
Ed. of Ewing, 330
U. S. 1 (1947), we have consistently struggled to apply these
simple words in the context of governmental aid to religious
schools.4 As we admitted in
Tilton v.
Richardson,
403 U. S. 672
(1971), "candor compels the acknowledgment that we can only dimly
perceive the boundaries of permissible government activity in this
sensitive area."
Id., at 678 (plurality opinion); see
Lemon, 403 U. S., at 671 (White, J., concurring in
judgment).
In
Agostini, however, we brought some clarity to our case
law, by overruling two anomalous precedents (one in whole, the
other in part) and by consolidating some of our previously
disparate considerations under a revised test. Whereas in
Lemon we had considered whether a statute (1) has a secular
purpose, (2) has a primary effect of advancing or inhibiting
religion, or (3) creates an excessive entanglement between
government and religion, see 403 U. S., at 612-613, in
Agostini we modified
Lemon for purposes of evaluating
aid to schools and examined only the first and second factors, see
521 U. S., at 222-223. We acknowledged
4 Cases prior to
Everson discussed the issue only
indirectly, see,
e. g., Vidal v.
Philadelphia, 2 How.
127, 198-200 (1844);
Quick Bear v.
Leupp, 210 U. S. 50, 81 (1908),
or evaluated aid to schools under other provisions of the
Constitution, see
Cochran v.
Louisiana Bd. of Ed.,
281 U. S. 370,
374-375 (1930).
808
Opinion of THOMAS, J.
that our cases discussing excessive entanglement had applied
many of the same considerations as had our cases discussing primary
effect, and we therefore recast
Lemon's entanglement inquiry
as simply one criterion relevant to determining a statute's effect.
Agostini, supra, at 232-233. We also acknowledged that our
cases had pared somewhat the factors that could justify a finding
of excessive entanglement. 521 U. S., at 233-234. We then set out
revised criteria for determining the effect of a statute:
"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." Id., at 234.
In this case, our inquiry under
Agostini's purpose and
effect test is a narrow one. Because respondents do not challenge
the District Court's holding that Chapter 2 has a secular purpose,
and because the Fifth Circuit also did not question that holding,
cf. 151 F. 3d, at 369, n. 17, we will consider only Chapter 2's
effect. Further, in determining that effect, we will consider only
the first two
Agostini criteria, since neither respondents
nor the Fifth Circuit has questioned the District Court's holding,
App. to Pet. for Cert. 108a, that Chapter 2 does not create an
excessive entanglement. Considering Chapter 2 in light of our more
recent case law, we conclude that it neither results in religious
indoctrination by the government nor defines its recipients by
reference to religion. We therefore hold that Chapter 2 is not a
"law respecting an establishment of religion." In so holding, we
acknowledge what both the Ninth and Fifth Circuits saw was
inescapable-Meek and
Wolman are anomalies in our case law.
We therefore conclude that they are no longer good law.
809
A
As we indicated in
Agostini, and have indicated
elsewhere, the question whether governmental aid to religious
schools results in governmental indoctrination is ultimately a
question whether any religious indoctrination that occurs in those
schools could reasonably be attributed to governmental action. See
Agostini, supra, at 226 (presence of signlanguage
interpreter in Catholic school "'cannot be attributed to
state decisionmaking'" (quoting
Zobrest, 509 U. S.,
at 10) (emphasis added in
Agostini)); 521 U. S., at 230
(question is whether "any use of [governmental] aid to indoctrinate
religion could be attributed to the State"); see also
Rosenberger, 515 U. S., at 841-842;
Witters v.
Washington Dept. of Servs. for Blind, 474 U. S. 481, 488-489
(1986);
Mueller v.
Allen, 463 U. S. 388, 397
(1983); cf.
Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints v.
Amos, 483 U. S. 327, 337 (1987)
("For a law to have forbidden 'effects' under
Lemon, it must
be fair to say that the
government itself has advanced
religion through its own activities and influence"). We have also
indicated that the answer to the question of indoctrination will
resolve the question whether a program of educational aid
"subsidizes" religion, as our religion cases use that term. See
Agostini, 521 U. S., at 230-231; see also
id., at
230.
In distinguishing between indoctrination that is attributable to
the State and indoctrination that is not, we have consistently
turned to the principle of neutrality, upholding aid that is
offered to a broad range of groups or persons without regard to
their religion. If the religious, irreligious, and areligious are
all alike eligible for governmental aid, no one would conclude that
any indoctrination that any particular recipient conducts has been
done at the behest of the government. For attribution of
indoctrination is a relative question. If the government is
offering assistance to recipients who provide, so to speak, a broad
range of indoctrination, the government itself is not thought
responsible for any par-
810
Opinion of THOMAS, J.
ticular indoctrination. To put the point differently, if the
government, seeking to further some legitimate secular purpose,
offers aid on the same terms, without regard to religion, to all
who adequately further that purpose, see
Allen, 392 U. S.,
at 245-247 (discussing dual secular and religious purposes of
religious schools), then it is fair to say that any aid going to a
religious recipient only has the effect of furthering that secular
purpose. The government, in crafting such an aid program, has had
to conclude that a given level of aid is necessary to further that
purpose among secular recipients and has provided no more than that
same level to religious recipients.
As a way of assuring neutrality, we have repeatedly considered
whether any governmental aid that goes to a religious institution
does so "only as a result of the genuinely independent and private
choices of individuals."
Agostini, supra, at 226 (internal
quotation marks omitted). We have viewed as significant whether the
"private choices of individual parents," as opposed to the
"unmediated" will of government,
Ball, 473 U. S., at 395, n.
13 (internal quotation marks omitted), determine what schools
ultimately benefit from the governmental aid, and how much. For if
numerous private choices, rather than the single choice of a
government, determine the distribution of aid pursuant to neutral
eligibility criteria, then a government cannot, or at least cannot
easily, grant special favors that might lead to a religious
establishment. Private choice also helps guarantee neutrality by
mitigating the preference for pre-existing recipients that is
arguably inherent in any governmental aid program, see,
e.
g., Gilder, The Revitalization of Everything: The Law of the
Microcosm, Harv. Bus. Rev. 49 (Mar.lApr. 1988), and that could lead
to a program inadvertently favoring one religion or favoring
religious private schools in general over nonreligious ones.
The principles of neutrality and private choice, and their
relationship to each other, were prominent not only in
Agos-
811
tini, supra, at 225-226, 228, 230-232, but also in
Zobrest, Witters, and
Mueller.5 The heart of our
reasoning in
Zobrest, upholding governmental provision of a
sign-language interpreter to a deaf student at his Catholic high
school, was as follows:
"The service at issue in this case is part of a general
government program that distributes benefits neutrally to any child
qualifying as 'disabled' under the [statute], without regard to the
'sectarian-nonsectarian, or public-nonpublic nature' of the school
the child attends. By according parents freedom to select a school
of their choice, the statute ensures that a governmentpaid
interpreter will be present in a sectarian school only as a result
of the private decision of individual parents. In other words,
because the [statute] creates no financial incentive for parents to
choose a sectarian school, an interpreter's presence there cannot
be attributed to state decisionmaking." 509 U. S., at 10.
As this passage indicates, the private choices helped to ensure
neutrality, and neutrality and private choices together eliminated
any possible attribution to the government even when the
interpreter translated classes on Catholic doctrine.
Witters and
Mueller employed similar reasoning. In
Witters, we held that the Establishment Clause did not bar a
State from including within a neutral program providing tuition
payments for vocational rehabilitation a blind person studying at a
Christian college to become a pastor, missionary, or youth
director. We explained:
"Any aid ... that ultimately flows to religious institutions
does so only as a result of the genuinely independent and private
choices of aid recipients. Washington's
5 JUSTICE O'CONNOR acknowledges that "neutrality is an important
reason for upholding government-aid programs," one that our recent
cases have "emphasized ... repeatedly."
Post, at 838
(opinion concurring in judgment).
812
Opinion of THOMAS, J.
program is made available generally without regard to the
sectarian-nonsectarian, or public-nonpublic nature of the
institution benefited and ... creates no financial incentive for
students to undertake sectarian education .... [T]he fact that aid
goes to individuals means that the decision to support religious
education is made by the individual, not by the State.
"[I]t does not seem appropriate to view any aid ultimately
flowing to the Inland Empire School of the Bible as resulting from
a state action sponsoring or subsidizing religion." 474 U.
S., at 487-488 (footnote, citations, and internal quotation marks
omitted).6
Further, five Members of this Court, in separate OpInIOnS,
emphasized both the importance of neutrality and of private
choices, and the relationship between the two. See
id.,
at
6 The majority opinion also noted that only a small portion of
the overall aid under the State's program would go to religious
education, see
Witters, 474 U. S., at 488, but it appears
that five Members of the Court thought this point irrelevant. See
id., at 491, n. 3 (Powell, J., joined by Burger, C. J., and
REHNQUIST, J., concurring) (citing
Mueller v.
Allen,
463 U. S. 388,
401 (1983), to assert that validity of program "does not depend on
the fact that petitioner appears to be the only handicapped student
who has sought to use his assistance to pursue religious
training"); 474 U. S., at 490 (White, J., concurring) (agreeing
with "most of Justice Powell's concurring opinion with respect to
the relevance of
Mueller," but not specifying further);
id., at 493 (O'CONNOR, J., concurring in part and concurring
in judgment) (agreeing with Justice Powell's reliance on
Mueller and explaining that the program did not have an
impermissible effect, because it was neutral and involved private
choice, and thus "[n]o reasonable observer is likely to draw from
the facts before us an inference that the State itself is endorsing
a religious practice or belief"). More recently, in
Agostini
v.
Felton, 521
U. S. 203 (1997), we held that the proportion of aid benefiting
students at religious schools pursuant to a neutral program
involving private choices was irrelevant to the constitutional
inquiry.
Id., at 229 (refusing "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"); see also
post, at 848 (O'CONNOR, J.,
concurring in judgment) (quoting this passage).
813
490-491 (Powell, J., joined by Burger, C. J., and REHNQUIST, J.,
concurring);
id., at 493 (O'CONNOR, J., concurring in part
and concurring in judgment); see also
id., at 490 (White,
J., concurring).
The tax deduction for educational expenses that we upheld in
Mueller was, in these respects, the same as the tuition
grant in
Witters. We upheld it chiefly because it "neutrally
provides state assistance to a broad spectrum of citizens," 463 U.
S., at 398-399, and because "numerous, private choices of
individual parents of school-age children,"
id., at 399,
determined which schools would benefit from the deductions. We
explained that "[w]here, as here, aid to parochial schools is
available only as a result of decisions of individual parents no
'imprimatur of state approval' can be deemed to have been conferred
on any particular religion, or on religion generally."
Ibid.
(citation omitted); see
id., at 397 (neutrality indicates
lack of state
imprimatur).
Agostini's second primary criterion for determining the
effect of governmental aid is closely related to the first. The
second criterion requires a court to consider whether an aid
program "define[s] its recipients by reference to religion." 521 U.
S., at 234. As we briefly explained in
Agostini, id., at
230-231, this second criterion looks to the same set of facts as
does our focus, under the first criterion, on neutrality, see
id., at 225-226, but the second criterion uses those facts
to answer a somewhat different question-whether the criteria for
allocating the aid "creat[e] a financial incentive to undertake
religious indoctrination,"
id., at 231. In
Agostini
we set out the following rule for answering this question:
"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." Ibid.
814
Opinion of THOMAS, J.
The cases on which
Agostini relied for this rule, and
Agostini itself, make clear the close relationship between
this rule, incentives, and private choice. For to say that a
program does not create an incentive to choose religious schools is
to say that the private choice is truly "independent,"
Witters, 474 U. S., at 487. See
Agostini, supra, at
232 (holding that Title I did not create any impermissible
incentive, because its services were "available to all children who
meet the Act's eligibility requirements, no matter what their
religious beliefs or where they go to school");
Zobrest, 509
U. S., at 10 (discussing, in successive sentences, neutrality,
private choice, and financial incentives, respectively);
Witters, supra, at 488 (similar). When such an incentive
does exist, there is a greater risk that one could attribute to the
government any indoctrination by the religious schools. See
Zobrest, supra, at 10.
We hasten to add, what should be obvious from the rule itself,
that simply because an aid program offers private schools, and thus
religious schools, a benefit that they did not previously receive
does not mean that the program, by reducing the cost of securing a
religious education, creates, under
Agostini's second
criterion, an "incentive" for parents to choose such an education
for their children. For
any aid will have some such effect.
See
Allen, 392 U. S., at 244;
Everson, 330 U. S., at
17; see also
Mueller, 463 U. S., at 399.
B
Respondents inexplicably make no effort to address Chapter 2
under the
Agostini test. Instead, dismissing
Agostini
as factually distinguishable, they offer two rules that they
contend should govern our determination of whether Chapter 2 has
the effect of advancing religion. They argue first, and chiefly,
that "direct, nonincidental" aid to the primary educational mission
of religious schools is always impermissible. Second, they argue
that provision to religious schools of aid that is divertible to
religious use is similarly impermis-
815
sible.7 Respondents' arguments are inconsistent with our more
recent case law, in particular
Agostini and
Zobrest,
and we therefore reject them.
1
Although some of our earlier cases, particularly
Ball,
473 U. S., at 393-394, did emphasize the distinction between direct
and indirect aid, the purpose of this distinction was
7 Respondents also contend that Chapter 2 aid supplants, rather
than supplements, the core educational function of parochial
schools and therefore has the effect of furthering religion. Our
case law does provide some indication that this distinction may be
relevant to determining whether aid results in governmental
indoctrination, see
Agostini, 521 U. S., at 228-229;
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1, 12 (1993); but
see
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373, 396
(1985), but we have never delineated the distinction's contours or
held that it is constitutionally required.
Nor, to the extent that the supplement/supplant line is
separable from respondents' direct/indirect and "no divertibility"
arguments, do we need to resolve the distinction's constitutional
status today, for, as we have already noted, Chapter 2 itself
requires that aid may only be supplemental. 20 U. S. C. § 7371(b).
See also
post, at 867 (O'CONNOR, J., concurring in judgment)
(declining to decide whether supplement/supplant distinction is a
constitutional requirement); but see
post, at 852
(explaining that computers are "necessary" to "the educational
process"). We presume that whether a parish has complied with that
statutory requirement would be, at the very least, relevant to
whether a violation of any constitutional supplement/supplant
requirement has occurred, yet we have no reason to believe that
there has been any material statutory violation. A statewide review
by the Louisiana SEA indicated that § 7371 (b) receives nearly
universal compliance. App. 112a. More importantly, neither the
District Court nor the Fifth Circuit even hinted that Jefferson
Parish had violated § 7371(b), and respondents barely mention the
statute in their brief to this Court, offering only the slimmest
evidence of any possible violation, see
id., at 63a.
Respondents argue that any Chapter 2 aid that a school uses to
comply with state requirements (such as those relating to computers
and libraries) necessarily violates whatever supplement/supplant
line may exist in the Constitution, but our decision in
Committee for Public Ed. and Religious Liberty v.
Regan, 444 U.
S. 646 (1980), upholding reimbursement to parochial schools of
costs relating to state-mandated testing, rejects any such blanket
rule.
816
Opinion of THOMAS, J.
merely to prevent "subsidization" of religion, see
id.,
at 394. As even the dissent all but admits, see
post, at 889
(opinion of SOUTER, J.), our more recent cases address this purpose
not through the direct/indirect distinction but rather through the
principle of private choice, as incorporated in the first
Agostini criterion (i.
e., whether any indoctrination
could be attributed to the government). If aid to schools, even
"direct aid," is neutrally available and, before reaching or
benefiting any religious school, first passes through the hands
(literally or figuratively) of numerous private citizens who are
free to direct the aid elsewhere, the government has not provided
any "support of religion,"
Witters, supra, at 489. See
supra, at 810. Although the presence of private choice is
easier to see when aid literally passes through the hands of
individuals-which is why we have mentioned directness in the same
breath with private choice, see,
e. g.,
Agostini, 521 U. S., at 226;
Witters, supra, at 487;
Mueller, supra, at 399-there is no reason why the
Establishment Clause requires such a form.
Indeed,
Agostini expressly rejected the absolute line
that respondents would have us draw. We there explained that "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." 521 U. S., at 225.
Agostini
relied primarily on
Witters for this conclusion and made
clear that private choice and neutrality would resolve the concerns
formerly addressed by the rule in
Ball. It was undeniable in
Witters that the aid (tuition) would ultimately go to the
Inland Empire School of the Bible and would support religious
education. We viewed this arrangement, however, as no different
from a government issuing a paycheck to one of its employees
knowing that the employee would direct the funds to a religious
institution. Both arrangements would be valid, for the same reason:
"[A]ny money that ultimately went to religious institutions did so
'only as a result of the genuinely independent and private choices
of' individuals."
817
Agostini, supra, at 226 (quoting
Witters, 474 U.
S., at 487). In addition, the program in
Witters was
neutral. 521 U. S., at 225 (quoting
Witters, supra, at
487).
As
Agostini explained, the same reasoning was at work in
Zobrest, where we allowed the government-funded interpreter
to provide assistance at a Catholic school, "even though she would
be a mouthpiece for religious instruction," because the interpreter
was provided according to neutral eligibility criteria and private
choice. 521 U. S., at 226. Therefore, the religious messages
interpreted by the interpreter could not be attributed to the
government, see
ibid. (We saw no difference in
Zobrest between the government hiring the interpreter
directly and the government providing funds to the parents who then
would hire the interpreter. 509 U. S., at 13, n. 11.) We rejected
the dissent's objection that we had never before allowed "a public
employee to participate directly in religious indoctrination." See
id., at 18 (opinion of Blackmun, J.). Finally, in
Agostini itself, we used the reasoning of
Witters and
Zobrest to conclude that remedial classes provided under
Title I of the ESEA by public employees did not impermissibly
finance religious indoctrination. 521 U. S., at 228; see
id., at 230-232. We found it insignificant that students did
not have to directly apply for Title I services, that Title I
instruction was provided to students in groups rather than
individually, and that instruction was provided in the facilities
of the private schools.
Id., at 226-229.
To the extent that respondents intend their direct/indirect
distinction to require that any aid be literally placed in the
hands of schoolchildren rather than given directly to the school
for teaching those same children, the very cases on which
respondents most rely,
Meek and
Wolman, demonstrate
the irrelevance of such formalism. In
Meek, we justified our
rejection of a program that loaned instructional materials and
equipment by, among other things, pointing out that the aid was
loaned to the schools, and thus was "direct
818
Opinion of THOMAS, J.
aid." 421 U. S., at 362-363. The materials-and-equipment program
in
Wolman was essentially identical, except that the State,
in an effort to comply with
Meek, see
Wolman, 433 U.
S., at 233, 250, loaned the aid to the students. (The revised
program operated much like the one we upheld in
Allen.
Compare
Wolman, supra, at 248, with
Allen, 392 U. S.,
at 243-245.) Yet we dismissed as "technical" the difference between
the two programs: "[I]t would exalt form over substance if this
distinction were found to justify a result different from that in
Meek." 433 U. S., at 250.
Wolman thus, although
purporting to reaffirm
Meek, actually undermined that
decision, as is evident from the similarity between the reasoning
of
Wolman and that of the
Meek dissent. Compare
Wolman, supra, at 250 (The "technical change in legal
bailee" was irrelevant), with
Meek, supra, at 391
(REHNQUIST, J., concurring in judgment in part and dissenting in
part) ("Nor can the fact that the school is the bailee be regarded
as constitutionally determinative"). That
Meek and
Wolman reached the same result, on programs that were
indistinguishable but for the direct/indirect distinction, shows
that that distinction played no part in
Meek.
Further, respondents' formalistic line breaks down in the
application to real-world programs. In
Allen, for example,
although we did recognize that students themselves received and
owned the textbooks, we also noted that the books provided were
those that the private schools required for courses, that the
schools could collect students' requests for books and submit them
to the board of education, that the schools could store the
textbooks, and that the textbooks were essential to the schools'
teaching of secular subjects. See 392 U. S., at 243-245. Whether
one chooses to label this program "direct" or "indirect" is a
rather arbitrary choice, one that does not further the
constitutional analysis.
Of course, we have seen "special Establishment Clause dangers,"
Rosenberger, 515 U. S., at 842, when
money is
819
given to religious schools or entities directly rather than, as
in
Witters and
Mueller, indirectly. See 515 U. S., at
842 (collecting cases);
id., at 846-847 (O'CONNOR, J.,
concurring); see also
Bowen v.
Kendrick, 487 U. S. 589, 608-609
(1988); compare
Committee for Public Ed. and Religious
Liberty v.
Regan, 444 U. S. 646 (1980),
with
Levitt v.
Committee for Public Ed. &
Religious Liberty, 413 U. S. 472 (1973).8
But
8 The reason for such concern is not that the form
per se
is bad, but that such a form creates special risks that
governmental aid will have the effect of advancing religion (or,
even more, a purpose of doing so). An indirect form of payment
reduces these risks. See
Mueller, 463 U. S., at 399 (neutral
tax deduction, because of its indirect form, allowed economic
benefit to religious schools only as result of private choice and
thus did not suggest state sanction of schools' religious
messages). It is arguable, however, at least after
Witters
v.
Washington Dept. of Servs. for Blind, 474 U. S. 481
(1986), that the principles of neutrality and private choice would
be adequate to address those special risks, for it is hard to see
the basis for deciding
Witters differently simply if the
State had sent the tuition check directly to whichever school
Witters chose to attend. See
Rosenberger v.
Rector and
Visitors of Univ. of Va., 515 U. S. 819, 848 (1995)
(O'CONNOR, J., concurring) (explaining
Witters as
reconciling principle of neutrality with principle against public
funding of religious messages by relying on principle of private
choice). Similarly, we doubt it would be unconstitutional if, to
modify
Witters' hypothetical, see 474 U. S., at 486
487;
supra, at 816, a government employer directly sent a portion of
an employee's paycheck to a religious institution designated by
that employee pursuant to a neutral charitable program. We approved
a similar arrangement in
Quick Bear, 210 U. S., at 77-82,
and the Federal Government appears to have long had such a program,
see 1999 Catalog of Caring:
Combined Federal Campaign of the National Capital Area 44, 45,
59, 74-75 (listing numerous religious organizations, many of which
engage in religious education or in proselytizing, to which federal
employees may contribute via payroll deductions); see generally
Cornelius v.
NAACP Legal Defense &
Ed. Fund,
Inc., 473 U. S.
788 (1985) (discussing Combined Federal Campaign). Finally, at
least some of our prior cases striking down direct payments
involved serious concerns about whether the payments were truly
neutral. See,
e. g., Committee for Public Ed. &
Religious Liberty v.
Nyquist, 413 U. S. 756, 762-764,
768, 774-780 (1973) (striking down, by 8-to-l vote, program
providing direct grants for maintenance and repair of school
facilities, where payments were allocated per-pupil but were
only
820
Opinion of THOMAS, J.
direct payments of money are not at issue in this case, and we
refuse to allow a "special" case to create a rule for all
cases.
2
Respondents also contend that the Establishment Clause requires
that aid to religious schools not be impermissibly religious in
nature or be divertible to religious use. We agree with the first
part of this argument but not the second. Respondents' "no
divertibility" rule is inconsistent with our more recent case law
and is unworkable. So long as the governmental aid is not itself
"unsuitable for use in the public schools because of religious
content,"
Allen, supra, at 245, and eligibility for aid is
determined in a constitutionally permissible manner, any use of
that aid to indoctrinate cannot be attributed to the government and
is thus not of constitutional concern. And, of course, the use to
which the aid is put does not affect the criteria governing the
aid's allocation and thus does not create any impermissible
incentive under
Agostini's second criterion.
Our recent precedents, particularly
Zobrest, require us
to reject respondents' argument. For
Zobrest gave no
consideration to divertibility or even to actual diversion. Had
such things mattered to the Court in
Zobrest, we would have
found the case to be quite easy-for
striking down rather
than, as we did, upholding the program-which is just how the
dissent saw the case. See,
e. g., 509 U. S., at 18
(Blackmun, J., dissenting) ("Until now, the Court never has
authorized a public employee to participate directly in religious
indoctrination");
id., at 22 ("[G]overnment crosses the
boundary when it furnishes the medium for communication of a
religious message .... [A] state-employed sign-language interpreter
would serve as the conduit for James' religious education, thereby
assisting Salpointe [High School] in its mission of religious
indoctrination");
id., at 23 (interpreter
available to private, nonprofit schools in low-income areas,
"'all or practically all'" of which were Catholic).
Id., at
768.
821
"is likely to place the
imprimatur of governmental
approval upon the favored religion"); see generally
id., at
18-23. Quite clearly, then, we did not, as respondents do, think
that the
use of governmental aid to further religious
indoctrination was synonymous with religious indoctrination
by the government or that such use of aid created any
improper incentives.
Similarly, had we, in
Witters, been concerned with
divertibility or diversion, we would have unhesitatingly, perhaps
summarily, struck down the tuition-reimbursement program, because
it was certain that Witters sought to participate in it to acquire
an education in a religious career from a sectarian institution.
Diversion was guaranteed.
Mueller took the same view as
Zobrest and
Witters, for we did not in
Mueller
require the State to show that the tax deductions were only for the
costs of education in secular subjects. We declined to impose any
such segregation requirement for either the tuition-expense
deductions or the deductions for items strikingly similar to those
at issue in
Meek and
Wolman, and here. See
Mueller, 463 U. S., at 391, n. 2; see also
id., at
414 (Marshall, J., dissenting) ("The instructional materials which
are subsidized by the Minnesota tax deduction plainly may be used
to inculcate religious values and belief").
JUSTICE O'CONNOR acknowledges that the Court in
Zobrest
and
Witters approved programs that involved actual
diversion. See
post, at 841 (opinion concurring in
judgment). The dissent likewise does not deny that
Witters
involved actual diversion. See
post, at 895-896, n. 16. The
dissent does claim that the aid in
Zobrest "was not
considered divertible,"
post, at 895, n. 16, but the dissent
in
Zobrest, which the author of today's dissent joined,
understood the case otherwise. See
supra, at 820. As that
dissent made clear, diversion is the use of government aid to
further a religious message. See
Zobrest, supra, at 21-22
(Blackmun, J., dissenting); see also
post, at 842, 857
(O'CONNOR, J., concurring in judgment). By that definition, the
822
Opinion of THOMAS, J.
government-provided interpreter in
Zobrest was not only
divertible, but actually diverted.
Respondents appear to rely on
Meek and
Wolman to
establish their rule against "divertible" aid. But those cases
offer little, if any, support for respondents.
Meek
mentioned divertibility only briefly in a concluding footnote, see
421 U. S., at 366, n. 16, and that mention was, at most, peripheral
to the Court's reasoning in striking down the lending of
instructional materials and equipment. The aid program in
Wolman explicitly barred divertible aid, 433 U. S., at
248249, so a concern for divertibility could not have been part of
our reason for finding that program invalid.
The issue is not divertibility of aid but rather whether the aid
itself has an impermissible content. Where the aid would be
suitable for use in a public school, it is also suitable for use in
any private school. Similarly, the prohibition against the
government providing impermissible content resolves the
Establishment Clause concerns that exist if aid is actually
diverted to religious uses.9 In
Agostini, we explained
Zobrest by making just this distinction between the content
of aid and the use of that aid: "Because the only
government
aid in
Zobrest was the interpreter, who was
herself not
inculcating any religious messages, no
government
indoctrination took place." 521 U. S., at 224 (second emphasis
added).
Agostini also acknowledged that what the dissenters
in
Zobrest had charged was essentially true:
Zobrest
did effect a "shift ... in our Establishment Clause law." 521 U.
S., at 225. The interpreter herself, assuming that she
9 The dissent would find an establishment of religion if a
governmentprovided projector were used in a religious school to
show a privately purchased religious film, even though a public
school that possessed the same kind of projector would likely be
constitutionally barred from
refusing to allow a
student bible club to use that projector in a classroom to show the
very same film, where the classrooms and projectors were generally
available to student groups. See
Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384 (1993).
823
fulfilled her assigned duties, see
id., at 224-225, had
"no inherent religious significance,"
Allen, 392 U. S., at
244 (discussing bus rides in
Everson), and so it did not
matter (given the neutrality and private choice involved in the
program) that she "would be a mouthpiece for religious
instruction,"
Agostini, supra, at 226 (discussing
Zobrest). And just as a government interpreter does not
herself inculcate a religious message-even when she is conveying
one-so also a government computer or overhead projector does not
itself inculcate a religious message, even when it is conveying
one.
In
Agostini itself, we approved the provision of public
employees to teach secular remedial classes in private schools
partly because we concluded that there was no reason to suspect
that indoctrinating content would be part of such governmental aid.
See 521 U. S., at 223-225, 226-227, 234-235. Relying on
Zobrest, we refused to presume that the public teachers
would" 'inject religious content'" into their classes, 521 U. S.,
at 225, especially given certain safeguards that existed; we also
saw no evidence that they had done so,
id., at 226-227.
In
Allen we similarly focused on content, emphasizing
that the textbooks were preapproved by public school authorities
and were not "unsuitable for use in the public schools because of
religious content." 392 U. S., at 245. See
Lemon, 403 U. S.,
at 617 ("We note that the dissenters in
Allen seemed chiefly
concerned with the pragmatic difficulties involved in
ensuring
the truly secular content of the textbooks" (emphasis added)).
Although it might appear that a book, because it has a pre-existing
content, is not divertible, and thus that lack of divertibility
motivated our holding in
Allen, it is hard to imagine any
book that could not, in even moderately skilled hands, serve to
illustrate a religious message.10
Post, at 855 (O'CONNOR,
J., concurring in judgment)
10 Although we did, elsewhere in Board of Ed. of Central School
Dist.
No.1 v.
Allen, 392 U. S. 236 (1968),
observe, in response to a party's argument, that there was no
evidence that the schools were using secular text-
824
Opinion of THOMAS, J.
(agreeing with this point). Indeed, the plaintiffs in
Walker essentially conceded as much. 46 F. 3d, at 1469, n.
17. A teacher could, for example, easily use Shakespeare's King
Lear, even though set in pagan times, to illustrate the Fourth
Commandment. See Exodus 20:12 ("Honor your father and your
mother"). Thus, it is a non sequitur for the dissent to contend
that the textbooks in
Allen were "not readily divertible to
religious teaching purposes" because they "had a known and fixed
secular content."
Post, at 893-894.
A concern for divertibility, as opposed to improper content, is
misplaced not only because it fails to explain why the sort of aid
that we have allowed is permissible, but also because it is
boundless-enveloping all aid, no matter how trivial-and thus has
only the most attenuated (if any) link to any realistic concern for
preventing an "establishment of religion." Presumably, for example,
government-provided lecterns, chalk, crayons, pens, paper, and
paintbrushes would have to be excluded from religious schools under
respondents' proposed rule. But we fail to see how indoctrination
by means of (i.
e., diversion of) such aid could be
attributed to the government. In fact, the risk of improper
attribution is
less when the aid
lacks content, for
there is no risk (as there is with books) of the government
inadvertently providing improper content. See
Allen, supra,
at 255-262 (Douglas, J., dissenting). Finally,
any aid, with
or without content, is "divertible" in the sense that it allows
schools to "divert" resources. Yet we have" 'not accepted the
recurrent argument that all aid is forbidden because aid to one
aspect of an institution frees it to spend its other resources on
religious ends.'"
Regan, 444 U. S., at 658 (quoting
Hunt v.
McNair, 413 U. S. 734, 743
(1973)).
books to somehow further religious instruction, see
id.,
at 248, we had no occasion to say what the consequence would be
were such use occurring and, more importantly, we think that this
brief concluding comment cannot be read, especially after
Zobrest (not to mention
Witters, Mueller, and
Agostini) as essential to the reasoning of
Allen.
825
It is perhaps conceivable that courts could take upon themselves
the task of distinguishing among the myriad kinds of possible aid
based on the ease of diverting each kind. But it escapes us how a
court might coherently draw any such line. It not only is far more
workable, but also is actually related to real concerns about
preventing advancement of religion by government, simply to
require, as did
Zobrest, Agostini, and
Allen, that a
program of aid to schools not provide improper content and that it
determine eligibility and allocate the aid on a permissible
basis.ll
C
The dissent serves up a smorgasbord of 11 factors that,
depending on the facts of each case "in all its particularity,"
post, at 877, could be relevant to the constitutionality of
a school-aid program. And those 11 are a bare minimum. We are
reassured that there are likely more.12 See
post, at 885,
888. Presumably they will be revealed in future cases, as needed,
but at least one additional factor is evident from the dissent
itself: The dissent resurrects the concern for political
divisiveness that once occupied the Court but that
post-Aguilar cases have rightly disregarded. Compare
post, at 868, 872, 901, 902, 909, n. 27, with
Agostini, 521 U. S., at 233-234;
Bowen, 487 U. S., at
617, n. 14;
Amos, 483 U. S., at 339-340, n. 17. As JUSTICE
O'CONNOR explained in dissent in
Aguilar: "It is curious
indeed to base our interpretation of the Constitution on
speculation as to the likelihood of a phenomenon which the parties
may create merely by
llJUSTICE O'CONNOR agrees that the Constitution does not bar
divertible aid. See
post, at 857 (opinion concurring in
judgment). She also finds actual diversion unproblematic if "true
private-choice" directs the aid. See
post, at 842. And even
when there is not such private choice, she thinks that some amount
of actual diversion is tolerable and that safeguards for preventing
and detecting actual diversion may be minimal, as we explain
further,
infra, at 832-834.
12 It is thus surprising for the dissent to accuse us of
following a rule of "breathtaking ... manipulability."
Post,
at 901, n. 19.
826
Opinion of THOMAS, J.
prosecuting a lawsuit." 473 U. S., at 429. While the dissent
delights in the perverse chaos that all these factors produce,
post, at 899; see also
post, at 869, 885, the
Constitution becomes unnecessarily clouded, and legislators,
litigants, and lower courts groan, as the history of this case
amply demonstrates. See Part I-B,
supra.
One of the dissent's factors deserves special mention: whether a
school that receives aid (or whose students receive aid) is
pervasively sectarian. The dissent is correct that there was a
period when this factor mattered, particularly if the pervasively
sectarian school was a primary or secondary school.
Post, at
885-887, 894, 898, 902-906. But that period is one that the Court
should regret, and it is thankfully long past.
There are numerous reasons to formally dispense with this
factor. First, its relevance in our precedents is in sharp decline.
Although our case law has consistently mentioned it even in recent
years, we have not struck down an aid program in reliance on this
factor since 1985, in
Aguilar and
Ball. Agostini of
course overruled
Aguilar in full and
Ball in part,
and today JUSTICE O'CONNOR distances herself from the part of
Ball with which she previously agreed, by rejecting the
distinction between public and private employees that was so
prominent in
Agostini. Compare
post, at 858860,
863-864 (opinion concurring in judgment), with
Agostini,
supra, at 223-225, 234-235. In
Witters, a year after
Aguilar and
Ball, we did not ask whether the Inland
Empire School of the Bible was pervasively sectarian. In
Bowen, a 1988 decision, we refused to find facially invalid
an aid program (although one not involving schools) whose
recipients had, the District Court found, included pervasively
sectarian institutions. See 487 U. S., at 636, 647, 648 (Blackmun,
J., dissenting). Although we left it open on remand for the
District Court to reaffirm its prior finding, we took pains to
emphasize the narrowness of the "pervasively sectarian" category,
see
id., at 620-621 (opinion of the Court), and two
827
Members of the majority questioned whether this category was
"well-founded,"
id., at 624 (KENNEDY, J., joined by SCALIA,
J., concurring). Then, in
Zobrest and
Agostini, we
upheld aid programs to children who attended schools that were not
only pervasively sectarian but also were primary and secondary.
Zobrest, in turning away a challenge based on the
pervasively sectarian nature of Salpointe Catholic High School,
emphasized the presence of private choice and the absence of
government-provided sectarian content. 509 U. S., at 13.
Agostini, in explaining why the aid program was
constitutional, did not bother to mention that pervasively
sectarian schools were at issue,13 see 521 U. S., at 226235, a fact
that was not lost on the dissent, see
id., at 249 (opinion
of SOUTER, J.). In disregarding the nature of the school,
Zobrest and
Agostini were merely returning to the
approach of
Everson and
Allen, in which the Court
upheld aid programs to students at pervasively sectarian schools.
See
post, at 875, 885-886 (SOUTER, J., dissenting) (noting
this fact regarding
Everson); Allen, 392 U. S., at 251-252
(Black, J., dissenting);
id., at 262-264, 269-270, n.
(Douglas, J., dissenting).
Second, the religious nature of a recipient should not matter to
the constitutional analysis, so long as the recipient adequately
furthers the government's secular purpose. See
supra, at
810. If a program offers permissible aid to the religious
(including the pervasively sectarian), the areligious, and the
irreligious, it is a mystery which view of religion the government
has established, and thus a mystery what the constitutional
violation would be. The pervasively sectarian recipient has not
received any special favor, and it is most bizarre that the Court
would, as the dissent seemingly does, reserve special hostility for
those who take their religion seriously, who think that their
religion should affect the whole
13 Nor does JUSTICE O'CONNOR do so today in her analysis of
Jefferson Parish's Chapter 2 program.
828
Opinion of THOMAS, J.
of their lives, or who make the mistake of being effective in
transmitting their views to children.
Third, the inquiry into the recipient's religious views required
by a focus on whether a school is pervasively sectarian is not only
unnecessary but also offensive. It is well established, in numerous
other contexts, that courts should refrain from trolling through a
person's or institution's religious beliefs. See
Employment
Div., Dept. of Human Resources of Ore. v.
Smith,
494 U. S. 872,
887 (1990) (collecting cases). Yet that is just what this factor
requires, as was evident before the District Court. Although the
dissent welcomes such probing, see
post, at 904-906, we find
it profoundly troubling. In addition, and related, the application
of the "pervasively sectarian" factor collides with our decisions
that have prohibited governments from discriminating in the
distribution of public benefits based upon religious status or
sincerity. See
Rosenberger v.
Rector and Visitors of
Univ. of Va., 515
U. S. 819 (1995);
Lamb's Chapel v.
Center Moriches
Union Free School Dist., 508 U. S. 384 (1993);
Widmar v.
Vincent, 454 U. S. 263 (1981).
Finally, hostility to aid to pervasively sectarian schools has a
shameful pedigree that we do not hesitate to disavow. Cf.
Chicago v.
Morales, 527 U. S. 41, 53-54, n. 20
(1999) (plurality opinion). Although the dissent professes concern
for "the implied exclusion of the less favored,"
post, at
868, the exclusion of pervasively sectarian schools from
government-aid programs is just that, particularly given the
history of such exclusion. Opposition to aid to "sectarian" schools
acquired prominence in the 1870's with Congress' consideration (and
near passage) of the Blaine Amendment, which would have amended the
Constitution to bar any aid to sectarian institutions.
Consideration of the amendment arose at a time of pervasive
hostility to the Catholic Church and to Catholics in general, and
it was an open secret that "sectarian" was code for "Catholic." See
generally Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal
Hist. 38 (1992).
829
Notwithstanding its history, of course, "sectarian" could, on
its face, describe the school of any religious sect, but the Court
eliminated this possibility of confusion when, in
Hunt v.
McNair, 413 U. S., at 743, it coined the term "pervasively
sectarian"-a term which, at that time, could be applied almost
exclusively to Catholic parochial schools and which even to day's
dissent exemplifies chiefly by reference to such schools. See
post, at 886, 904-906 (opinion of SOUTER, J.).
In short, nothing in the Establishment Clause requires the
exclusion of pervasively sectarian schools from otherwise
permissible aid programs, and other doctrines of this Court bar it.
This doctrine, born of bigotry, should be buried now.
III
Applying the two relevant
Agostini criteria, we see no
basis for concluding that Jefferson Parish's Chapter 2 program "has
the effect of advancing religion."
Agostini, supra, at 234.
Chapter 2 does not result in governmental indoctrination, because
it determines eligibility for aid neutrally, allocates that aid
based on the private choices of the parents of schoolchildren, and
does not provide aid that has an impermissible content. Nor does
Chapter 2 define its recipients by reference to religion.
Taking the second criterion first, it is clear that Chapter 2
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."
Agostini, 521 U. S., at 231. Aid is allocated based on
enrollment: "Private schools receive Chapter 2 materials and
equipment based on the per capita number of students at each
school,"
Walker, 46 F. 3d, at 1464, and allocations to
private schools must "be equal (consistent with the number of
children to be served) to expenditures for programs under this
subchapter for children enrolled in the public schools of the
[LEA]," 20 U. S. C. § 7372(b). LEA's must provide Chapter 2
materials and equipment for the benefit
830
Opinion of THOMAS, J.
of children in private schools "[t]o the extent consistent with
the number of children in the school district of [an LEA] ... who
are enrolled in private nonprofit elementary and secondary
schools." § 7372(a)(1). See App. to Pet. for Cert. 87a (District
Court, recounting testimony of head of Louisiana's Chapter 2
program that LEA's are told that" 'for every dollar you spend for
the public school student, you spend the same dollar for the
non-public school student' "); §§ 7372(a)(1) and (b) (children in
private schools must receive "equitable participation"). The
allocation criteria therefore create no improper incentive. Chapter
2 does, by statute, deviate from a pure per capita basis for
allocating aid to LEA's, increasing the per-pupil allocation based
on the number of children within an LEA who are from poor families,
reside in poor areas, or reside in rural areas. §§ 7312(a)-(b). But
respondents have not contended, nor do we have any reason to think,
that this deviation in the allocation
to the LEA's leads to
deviation in the allocation among schools
within each LEA,
see §§ 7372(a)-(b), and, even if it did, we would not presume that
such a deviation created any incentive one way or the other with
regard to religion.
Chapter 2 also satisfies the first
Agostini criterion.
The program makes a broad array of schools eligible for aid without
regard to their religious affiliations or lack thereof. § 7372; see
§ 7353(a)(3). We therefore have no difficulty concluding that
Chapter 2 is neutral with regard to religion. See
Agostini,
supra, at 225-226. Chapter 2 aid also, like the aid in
Agostini, Zobrest, and
Witters, reaches participating
schools only "as a consequence of private decisionmaking."
Agostini, supra, at 222. Private decisionmaking controls
because of the per capita allocation scheme, and those decisions
are independent because of the program's neutrality. See 521 U. S.,
at 226. It is the students and their parentsnot the government-who,
through their choice of school, determine who receives Chapter 2
funds. The aid follows the child.
831
Because Chapter 2 aid is provided pursuant to private choices,
it is not problematic that one could fairly describe Chapter 2 as
providing "direct" aid. The materials and equipment provided under
Chapter 2 are presumably used from time to time by entire classes
rather than by individual students (although individual students
are likely the chief consumers of library books and, perhaps, of
computers and computer software), and students themselves do not
need to apply for Chapter 2 aid in order for their schools to
receive it, but, as we explained in
Agostini, these traits
are not constitutionally significant or meaningful. See
id.,
at 228-229. Nor, for reasons we have already explained, is it of
constitutional significance that the schools themselves, rather
than the students, are the bailees of the Chapter 2 aid. The
ultimate beneficiaries of Chapter 2 aid are the students who attend
the schools that receive that aid, and this is so regardless of
whether individual students lug computers to school each day or, as
Jefferson Parish has more sensibly provided, the schools receive
the computers. Like the Ninth Circuit, and unlike the dissent,
post, at 888, we "see little difference in loaning science
kits to students who then bring the kits to school as opposed to
loaning science kits to the school directly."
Walker, supra,
at 1468, n. 16; see
Allen, 392 U. S., at 244, n. 6.
Finally, Chapter 2 satisfies the first
Agostini criterion
because it does not provide to religious schools aid that has an
impermissible content. The statute explicitly bars anything of the
sort, providing that all Chapter 2 aid for the benefit of children
in private schools shall be "secular, neutral, and nonideological,"
§ 7372(a)(1), and the record indicates that the Louisiana SEA and
the Jefferson Parish LEA have faithfully enforced this requirement
insofar as relevant to this case. The chief aid at issue is
computers, computer software, and library books. The computers
presumably have no preexisting content, or at least none that would
be impermissible for use in public schools. Respondents do not
contend
832
Opinion of THOMAS, J.
otherwise. Respondents also offer no evidence that religious
schools have received software from the government that has an
impermissible content.
There is evidence that equipment has been, or at least easily
could be, diverted for use in religious classes. See,
e.
g., App. 108a, 118a, 205a-207a. JUSTICE O'CONNOR, however,
finds the safeguards against diversion adequate to prevent and
detect actual diversion.
Post, at 861, 867 (opinion
concurring in judgment). The safeguards on which she relies reduce
to three: (1) signed assurances that Chapter 2 aid will be used
only for secular, neutral, and nonideological purposes, (2)
monitoring visits, and (3) the requirement that equipment be
labeled as belonging to Chapter 2.14 As to the first, JUSTICE
O'CONNOR rightly places little reliance on it.
Post, at 862.
As to the second, monitoring by SEA and LEA officials is highly
unlikely to prevent or catch diversion.15 As to the third,
compliance with the labeling re-
14 Many of the other safeguards on which JUSTICE O'CONNOR relies
are safeguards against improper content, not against diversion. See
post, at 862, 863 (opinion concurring in judgment). Content
is a different matter from diversion and is much easier to police
than is the mutable use of materials and equipment (which is one
reason that we find the safeguards against improper content
adequate,
infra, at 834-835). Similarly, the statutory
provisions against supplanting nonfederal funds and against paying
federal funds for religious worship or instruction, on which
JUSTICE O'CONNOR also relies,
post, at 861, are of little,
if any, relevance to diversion-the former because diversion need
not supplant, and the latter because religious schools receive no
funds, 20 U. S. C. § 7372(c)(1).
15 The SEA director acknowledged as much when he said that the
SEA enforces the rule against diversion "as best we can," only
visits "[o]ne or two" of the private schools whenever it reviews an
LEA, and reviews each LEA only once every three years. App.
94a-95a. When asked whether there was "any way" for SEA officials
to know of diversion of a Chapter 2 computer, he responded, "No,
there is no way."
Id., at 118a.
Monitoring by the Jefferson Parish LEA is similarly ineffective.
The LEA visits each private school only once a year, for less than
an hour and a half, and alerts the school to the visit in advance.
Id., at 142a, 151a-152a, 182a-183a. The monitoring visits
consist of reviewing records of equipment use and of speaking to a
single contact person. Self-reporting is the sole source for the
records of use.
Id., at 140a. In the case of overhead
833
quirement is haphazard, see App. 113a, and, even if the
requirement were followed, we fail to see how a label prevents
diversion.16 In addition, we agree with the dissent that there is
evidence of actual diversion and that, were the safeguards anything
other than anemic, there would almost certainly be more such
evidence. See
post, at 903, 906910.17 In any event, for
reasons we discussed in Part II-B-2,
projectors, the record appears to be just a sign-out sheet, and
the LEA official simply checks whether "the recordation of use is
attempted."
Id., at 143a. The contact person is not a
teacher; monitoring does not include speaking with teachers; and
the LEA makes no effort to inform teachers of the restrictions on
use of Chapter 2 equipment.
Id., at 154a-155a. The contact
person also is usually not involved with the computers.
Id.,
at 163a. Thus, the contact person is uninvolved in the actual use
of the divertible equipment and, therefore, in no position to know
whether diversion has occurred. See
id., at 154a.
Unsurprisingly, then, no contact person has ever reported
diversion.
Id., at 147a. (In
Agostini, by contrast,
monitors visited each classroom-unannounced-once a month, and the
teachers received specific training in what activities were
permitted. 521 U. S., at 211-212, 234.) The head of the Jefferson
Parish LEA admitted that she had, and could have, no idea whether
Chapter 2 equipment was being diverted:
"Q: Would there be any way to ascertain, from this on-site
visit, whether the material or equipment purchased are used not
only in accordance with Chapter 2 plan submitted, but for other
purposes, also?
"A: No.
"Q: Now, would it be your view that a church-affiliated school
that would teach the creation concept of the origin of man, that if
they used [a Chapter 2] overhead projector, that would be a
violation ... ?
"A: Yes.
"Q: Now, is there any way, do you ever ask that question of a
churchaffiliated school, as to whether they use it for that
purpose?
"A: No." App. 144a, 150a-151a.
See
id., at 139a, 145a, 146a-147a (similar).
16 In fact, a label, by associating the government with any
religious use of the equipment, exacerbates any Establishment
Clause problem that might exist when diversion occurs.
17 JUSTICE O'CONNOR dismisses as
de minimis the evidence
of actual diversion.
Post, at 864-865 (opinion concurring in
judgment). That may be, but it is good to realize just what she
considers
de minimis. There is
834
Opinion of THOMAS, J.
supra, the evidence of actual diversion and the weakness
of the safeguards against actual diversion are not relevant to the
constitutional inquiry, whatever relevance they may have under the
statute and regulations.
Respondents do, however, point to some religious books that the
LEA improperly allowed to be loaned to several religious schools,
and they contend that the monitoring programs of the SEA and the
Jefferson Parish LEA are insufficient to prevent such errors. The
evidence, however, establishes just the opposite, for the improper
lending of library books occurred-and was discovered and
remedied-before this litigation began almost 15 years ago.18 In
other words, the monitoring system worked. See
post, at 866
(O'CONNOR, J., concurring in judgment). Further, the violation by
the LEA and the private schools was minor and, in the view of the
SEA's coordinator, inadvertent. See App. 122a. There were
approximately 191 improper book requests over three years (the
1982-1983 through 1984-1985 school years); these requests came from
fewer than half of the 40 private schools then participating; and
the cost of the 191 books
persuasive evidence that Chapter 2 audiovisual equipment was
used in a Catholic school's theology department. "[M]uch" of the
equipment at issue "was purchased with Federal funds," App. 205a,
and those federal funds were, from the 1982-1983 school year on,
almost certainly Chapter 2 funds, see
id., at 210a; cf.
id., at 187a, 189a. The diversion occurred over seven
consecutive school years,
id., at 206a-207a, and the use of
the equipment in the theology department was massive in each of
those years, outstripping in every year use in other departments
such as science, math, and foreign language,
ibid. In
addition, the dissent has documented likely diversion of computers.
Post, at 910.
18 The coordinator of the Jefferson Parish LEA ordered the books
recalled sometime in the summer or early fall of 1985, and it
appears that the schools had complied with the recall order by the
second week of December 1985. App. 162a, 80a-81a. Respondents filed
suit in early December. This self-correction is a key distinction
between this instance of providing improper content and the
evidence of actual diversion. See n. 17,
supra.
835
amounted to "less than one percent of the total allocation over
all those years."
Id., at 132a-133a.
The District Court found that pre screening by the LEA
coordinator of requested library books was sufficient to prevent
statutory violations, see App. to Pet. for Cert. 107a, and the
Fifth Circuit did not disagree. Further, as noted, the monitoring
system appears adequate to catch those errors that do occur. We are
unwilling to elevate scattered
de minimis statutory
violations, discovered and remedied by the relevant authorities
themselves prior to any litigation, to such a level as to convert
an otherwise unobjectionable parishwide program into a law that has
the effect of advancing religion.
IV
In short, Chapter 2 satisfies both the first and second primary
criteria of
Agostini. It therefore does not have the effect
of advancing religion. For the same reason, Chapter 2 also "cannot
reasonably be viewed as an endorsement of religion,"
Agostini, 521 U. S., at 235. Accordingly, we hold that
Chapter 2 is not a law respecting an establishment of religion.
Jefferson Parish need not exclude religious schools from its
Chapter 2 program.19 To the extent that
Meek and
Wolman conflict with this holding, we overrule them.
Our conclusion regarding
Meek and
Wolman should
come as no surprise. The Court as early as
Wolman itself
left no doubt that
Meek and
Allen were
irreconcilable, see 433 U. S., at 251, n. 18, and we have
repeatedly reaffirmed
Allen since then, see,
e. g.,
Agostini, supra, at 231. (In fact,
Meek, in
19 Indeed, as petitioners observe, to require exclusion of
religious schools from such a program would raise serious questions
under the Free Exercise Clause. See,
e. g., Church of Lukumi
Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 532 (1993)
("At a minimum, the protections of the Free Exercise Clause pertain
if the law at issue discriminates against some or all religious
beliefs");
Everson, 330 U. S., at 16; cf.
Rosenberger
v.
Rector and Visitors of Univ. of Va., 515 U. S. 819 (1996)
(holding that Free Speech Clause bars exclusion of religious
viewpoints from limited public forum).
836
O'CONNOR, J., concurring in judgment
discussing the materials-and-equipment program, did not even
cite
Allen. See
Meek, 421 U. S., at 363-366.) Less
than three years after
Wolman, we explained that
Meek
did not, despite appearances, hold that "all loans of secular
instructional material and equipment inescapably have the effect of
direct advancement of religion."
Regan, 444 U. S., at
661-662 (internal quotation marks omitted). Then, in
Mueller, we conceded that the aid at issue in
Meek
and
Wolman did "resembl[e], in many respects," the aid that
we had upheld in
Everson and
Allen. 463 U. S., at
393, and n. 3; see
id., at 402, n. 10; see also
id.,
at 415 (Marshall, J., dissenting) (viewing
Allen as
incompatible with
Meek and
Wolman, and the
distinction between textbooks and other instructional materials as
"simply untenable"). Most recently,
Agostini, in rejecting
Ball's assumption that "all government aid that directly
assists the educational function of religious schools is invalid,"
Agostini, supra, at 225, necessarily rejected a large
portion (perhaps all, see
Ball, 473 U. S., at 395) of the
reasoning of
Meek and
Wolman in invalidating the
lending of materials and equipment, for
Ball borrowed that
assumption from those cases. See 521 U. S., at 220-221 (Shared Time
program at issue in
Ball was "surely invalid ... [g]iven the
holdings in
Meek and
Wolman" regarding instructional
materials and equipment). Today we simply acknowledge what has long
been evident and was evident to the Ninth and Fifth Circuits and to
the District Court.
The judgment of the Fifth Circuit is reversed.
It is so ordered.
JUSTICE O'CONNOR, with whom JUSTICE BREYER joins, concurring in
the judgment.
In 1965, Congress passed the Elementary and Secondary Education
Act, 79 Stat. 27 (1965 Act). Under Title I, Congress provided
monetary grants to States to address the needs of educationally
deprived children of low-income families. Under Title II, Congress
provided further monetary
837
grants to States for the acquisition of library resources,
textbooks, and other instructional materials for use by children
and teachers in public and private elementary and secondary
schools. Since 1965, Congress has reauthorized the Title I and
Title II programs several times. Three Terms ago, we held in
Agostini v.
Felton, 521 U. S. 203 (1997),
that Title I, as applied in New York City, did not violate the
Establishment Clause. I believe that
Agostini likewise
controls the constitutional inquiry respecting Title II presented
here, and requires the reversal of the Court of Appeals' judgment
that the program is unconstitutional as applied in Jefferson
Parish, Louisiana. To the extent our decisions in
Meek v.
Pittenger,
421
U. S. 349 (1975), and
Wolman v.
Walter, 433 U. S. 229 (1977), are
inconsistent with the Court's judgment today, I agree that those
decisions should be overruled. I therefore concur in the
judgment.
I
I write separately because, in my view, the plurality announces
a rule of unprecedented breadth for the evaluation of Establishment
Clause challenges to government school aid programs. Reduced to its
essentials, the plurality's rule states that government aid to
religious schools does not have the effect of advancing religion so
long as the aid is offered on a neutral basis and the aid is
secular in content. The plurality also rejects the distinction
between direct and indirect aid, and holds that the actual
diversion of secular aid by a religious school to the advancement
of its religious mission is permissible. Although the expansive
scope of the plurality's rule is troubling, two specific aspects of
the opinion compel me to write separately. First, the plurality's
treatment of neutrality comes close to assigning that factor
singular importance in the future adjudication of Establishment
Clause challenges to government school aid programs. Second, the
plurality's approval of actual diversion of government aid to
religious indoctrination is in tension with our
838
O'CONNOR, J., concurring in judgment
precedents and, in any event, unnecessary to decide the instant
case.
The clearest example of the plurality's near-absolute position
with respect to neutrality is found in its following statement:
"If the religious, irreligious, and areligious are all alike
eligible for governmental aid, no one would conclude that any
indoctrination that any particular recipient conducts has been done
at the behest of the government. For attribution of indoctrination
is a relative question. If the government is offering assistance to
recipients who provide, so to speak, a broad range of
indoctrination, the government itself is not thought responsible
for any particular indoctrination. To put the point differently, if
the government, seeking to further some legitimate secular purpose,
offers aid on the same terms, without regard to religion, to all
who adequately further that purpose, then it is fair to say that
any aid going to a religious recipient only has the effect of
furthering that secular purpose." Ante, at 809-810 (citation
omitted).
I agree with JUSTICE SOUTER that the plurality, by taking such a
stance, "appears to take evenhandedness neutrality and in practical
terms promote it to a single and sufficient test for the
establishment constitutionality of school aid."
Post, at 900
(dissenting opinion).
I do not quarrel with the plurality's recognition that
neutrality is an important reason for upholding government-aid
programs against Establishment Clause challenges. Our cases have
described neutrality in precisely this manner, and we have
emphasized a program's neutrality repeatedly in our decisions
approving various forms of school aid. See,
e. g.,
Agostini, supra, at 228, 231-232;
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1, 10 (1993);
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481,
487-488 (1986);
id., at 493 (O'CONNOR, J., concurring in
part and concurring
839
in judgment);
Mueller v.
Allen, 463 U. S. 388, 397-399
(1983). Nevertheless, we have never held that a government-aid
program passes constitutional muster
solely because of the
neutral criteria it employs as a basis for distributing aid. For
example, in
Agostini, neutrality was only one of several
factors we considered in determining that New York City's Title I
program did not have the impermissible effect of advancing
religion. See 521 U. S., at 226-228 (noting lack of evidence of
inculcation of religion by Title I instructors, legal requirement
that Title I services be supplemental to regular curricula, and
that no Title I funds reached religious schools' coffers). Indeed,
given that the aid in
Agostini had secular content and was
distributed on the basis of wholly neutral criteria, our
consideration of additional factors demonstrates that the
plurality's rule does not accurately describe our recent
Establishment Clause jurisprudence. See also
Zobrest, supra,
at 10, 12-13 (noting that no government funds reached religious
school's coffers, aid did not relieve school of expense it
otherwise would have assumed, and aid was not distributed to school
but to the child).
JUSTICE SOUTER provides a comprehensive review of our
Establishment Clause cases on government aid to religious
institutions that is useful for its explanation of the various ways
in which we have used the term "neutrality" in our decisions. See
post, at 878-883. Even if we at one time used the term
"neutrality" in a descriptive sense to refer to those aid programs
characterized by the requisite equipoise between support of
religion and antagonism to religion, JusTICE SOUTER'S discussion
convincingly demonstrates that the evolution in the meaning of the
term in our jurisprudence is cause to hesitate before equating the
neutrality of recent decisions with the neutrality of old. As I
have previously explained, neutrality is important, but it is by no
means the only "axiom in the history and precedent of the
Establishment Clause."
Rosenberger v.
Rector and Visitors
of Univ. of Va., 515 U. S. 819, 846 (1995)
(concurring opinion). Thus,
840
O'CONNOR, J., concurring in judgment
I agree with JUSTICE SOUTER'S conclusion that our "most recent
use of 'neutrality' to refer to generality or evenhandedness of
distribution ... is relevant in judging whether a benefit scheme so
characterized should be seen as aiding a sectarian school's
religious mission, but this neutrality is not alone sufficient to
qualify the aid as constitutional."
Post, at 883-884.
I also disagree with the plurality's conclusion that actual
diversion of government aid to religious indoctrination is
consistent with the Establishment Clause. See
ante, at
820825. Although "[o]ur cases have permitted some government
funding of secular functions performed by sectarian organizations,"
our decisions "provide no precedent for the use of public funds to
finance religious activities."
Rosenberger, supra, at 847
(O'CONNOR, J., concurring). At least two of the decisions at the
heart of today's case demonstrate that we have long been concerned
that secular government aid not be diverted to the advancement of
religion. In both
Agostini, our most recent school aid case,
and
Board of Ed. of Central School Dist. No.1 v.
Allen, 392 U.
S. 236 (1968), we rested our approval of the relevant programs
in part on the fact that the aid had not been used to advance the
religious missions of the recipient schools. See
Agostini,
supra, at 226-227 ("[N]o evidence has ever shown that any New
York City Title I instructor teaching on parochial school premises
attempted to inculcate religion in students");
Allen, supra,
at 248 ("Nothing in this record supports the proposition that all
textbooks, whether they deal with mathematics, physics, foreign
languages, history, or literature, are used by the parochial
schools to teach religion"). Of course, our focus on the lack of
such evidence would have been entirely unnecessary if we had
believed that the Establishment Clause permits the actual diversion
of secular government aid to religious indoctrination. Our decision
in
Bowen v.
Kendrick, 487 U. S. 589 (1988),
also demonstrates that actual diversion is constitutionally
impermissible. After conclud-
841
ing that the government-aid program in question was
constitutional on its face, we remanded the case so that the
District Court could determine, after further factual development,
whether aid recipients had used the government aid to support their
religious objectives. See
id., at 621-622;
id., at
624 (KENNEDY, J., concurring) ("[T]he only purpose of further
inquiring whether any particular grantee institution is pervasively
sectarian is as a preliminary step to demonstrating that the funds
are in fact being used to further religion"). The remand would have
been unnecessary if, as the plurality contends, actual diversion
were irrelevant under the Establishment Clause.
The plurality bases its holding that actual diversion is
permissible on
Witters and
Zobrest. Ante, at 820-821.
Those decisions, however, rested on a significant factual premise
missing from this case, as well as from the majority of cases thus
far considered by the Court involving Establishment Clause
challenges to school aid programs. Specifically, we decided
Witters and
Zobrest on the understanding that the aid
was provided directly to the individual student who, in turn, made
the choice of where to put that aid to use. See
Witters, 474
U. S., at 488;
Zobrest, 509 U. S., at 10, 12. Accordingly,
our approval of the aid in both cases relied to a significant
extent on the fact that "[a]ny aid ... that ultimately flows to
religious institutions does so only as a result of the genuinely
independent and private choices of aid recipients."
Witters,
supra, at 487; see
Zobrest, supra, at 10 ("[A]
government-paid interpreter will be present in a sectarian school
only as a result of the private decision of individual parents").
This characteristic of both programs made them less like a direct
subsidy, which would be impermissible under the Establishment
Clause, and more akin to the government issuing a paycheck to an
employee who, in turn, donates a portion of that check to a
religious institution. See,
e. g., Witters, supra, at
486-487; see also
Rosenberger, supra, at 848 (O'CONNOR, J.,
concurring) (discussing
Witters).
842
O'CONNOR, J., concurring in judgment
Recognizing this distinction, the plurality nevertheless finds
Witters and
Zobrest-to the extent those decisions
might permit the use of government aid for religious
purposes-relevant in any case involving a neutral, per-capitaaid
program. See
ante, at 830-831. Like JUSTICE SOUTER, I do not
believe that we should treat a per-capita-aid program the same as
the true private-choice programs considered in
Witters and
Zobrest. See
post, at 902. First, when the government
provides aid directly to the student beneficiary, that student can
attend a religious school and yet retain control over whether the
secular government aid will be applied toward the religious
education. The fact that aid flows to the religious school and is
used for the advancement of religion is therefore
wholly
dependent on the student's private decision. See
Rosenberger, 515 U. S., at 848 (O'CONNOR, J., concurring)
(discussing importance of private choice in
Witters);
Witters, 474 U. S., at 488 ("[T]he fact that aid goes to
individuals means that the decision to support religious education
is made by the individual, not by the State");
id., at 493
(O'CONNOR, J., concurring in part and concurring in judgment) ("The
aid to religion at issue here is the result of petitioner's private
choice"). It is for this reason that in
Agostini we relied
on
Witters and
Zobrest to reject the rule "that all
government aid that directly assists the educational function of
religious schools is invalid," 521 U. S., at 225, yet also rested
our approval of New York City's Title I program in part on the lack
of evidence of actual diversion,
id., at 226-227.
Second, I believe the distinction between a per capita school
aid program and a true private-choice program is significant for
purposes of endorsement. See,
e. g., Lynch v.
Donnelly, 465
U. S. 668, 692 (1984) (O'CONNOR, J., concurring). In terms of
public perception, a government program of direct aid to religious
schools based on the number of students attending each school
differs meaningfully from the government distributing aid directly
to individual students
843
who, in turn, decide to use the aid at the same religious
schools. In the former example, if the religious school uses the
aid to inculcate religion in its students, it is reasonable to say
that the government has communicated a message of endorsement.
Because the religious indoctrination is supported by government
assistance, the reasonable observer would naturally perceive the
aid program as
government support for the advancement of
religion. That the amount of aid received by the school is based on
the school's enrollment does not separate the government from the
endorsement of the religious message. The aid formula does notand
could not-indicate to a reasonable observer that the inculcation of
religion is endorsed only by the individuals attending the
religious school, who each affirmatively choose to direct the
secular government aid to the school and its religious mission. No
such choices have been made. In contrast, when government aid
supports a school's religious mission only because of independent
decisions made by numerous individuals to guide their secular aid
to that school, "[n]o reasonable observer is likely to draw from
the facts ... an inference that the State itself is endorsing a
religious practice or belief."
Witters, supra, at 493
(O'CONNOR, J., concurring in part and concurring in judgment).
Rather, endorsement of the religious message is reasonably
attributed to the individuals who select the path of the aid.
Finally, the distinction between a per-capita-aid program and a
true private-choice program is important when considering aid that
consists of direct monetary subsidies. This Court has "recognized
special Establishment Clause dangers where the government makes
direct money payments to sectarian institutions."
Rosenberger, 515 U. S., at 842; see also
ibid.
(collecting cases). If, as the plurality contends, a per-capita-aid
program is identical in relevant constitutional respects to a true
private-choice program, then there is no reason that, under the
plurality's reasoning, the government should be precluded from
providing direct money payments
844
O'CONNOR, J., concurring in judgment
to religious organizations (including churches) based on the
number of persons belonging to each organization. And, because
actual diversion is permissible under the plurality's holding, the
participating religious organizations (including churches) could
use that aid to support religious indoctrination. To be sure, the
plurality does not actually hold that its theory extends to direct
money payments. See
ante, at 818-820. That omission,
however, is of little comfort. In its logic-as well as its specific
advisory language, see
ante, at 819-820, n. 8-the plurality
opinion foreshadows the approval of direct monetary subsidies to
religious organizations, even when they use the money to advance
their religious objectives.
Our school aid cases often pose difficult questions at the
intersection of the neutrality and no-aid principles and therefore
defy simple categorization under either rule. As I explained in
Rosenberger, "[r]esolution instead depends on the hard task
of judging-sifting through the details and determining whether the
challenged program offends the Establishment Clause. Such judgment
requires courts to draw lines, sometimes quite fine, based on the
particular facts of each case." 515 U. S., at 847 (concurring
opinion).
Agostini represents our most recent attempt to
devise a general framework for approaching questions concerning
neutral school aid programs.
Agostini also concerned an
Establishment Clause challenge to a school aid program closely
related to the one at issue here. For these reasons, as well as my
disagreement with the plurality's approach, I would decide to day's
case by applying the criteria set forth in
Agostini.
II
In
Agostini, after reexammmg our jurisprudence since
School Dist. of Grand Rapids v.
Ball, 473 U. S. 373 (1985), we
explained that the general principles used to determine whether
government aid violates the Establishment Clause have remained
largely unchanged. 521 U. S., at 222. Thus,
845
we still ask "whether the government acted with the purpose of
advancing or inhibiting religion" and "whether the aid has the
'effect' of advancing or inhibiting religion."
Id., at
222223. We also concluded in
Agostini, however, that the
specific criteria used to determine whether government aid has an
impermissible effect had changed.
Id., at 223. Looking to
our recently decided cases, we articulated three primary criteria
to guide the determination whether a governmentaid program
impermissibly advances religion: (1) whether the aid results in
governmental indoctrination, (2) whether the aid program defines
its recipients by reference to religion, and (3) whether the aid
creates an excessive entanglement between government and religion.
Id., at 234. Finally, we noted that the same criteria could
be reviewed to determine whether a government-aid program
constitutes an endorsement of religion.
Id., at 235.
Respondents neither question the secular purpose of the Chapter
2 (Title II) program nor contend that it creates an excessive
entanglement. (Due to its denomination as Chapter 2 of the
Education Consolidation and Improvement Act of 1981, 95 Stat. 469,
the parties refer to the 1965 Act's Title II program, as modified
by subsequent legislation, as "Chapter 2." For ease of reference, I
will do the same.) Accordingly, for purposes of deciding whether
Chapter 2, as applied in Jefferson Parish, Louisiana, violates the
Establishment Clause, we need ask only whether the program results
in governmental indoctrination or defines its recipients by
reference to religion.
Taking the second inquiry first, it is clear that Chapter 2 does
not define aid recipients by reference to religion. In
Agostini, we explained that scrutiny of the manner in which
a government-aid program identifies its recipients is important
because "the criteria might themselves have the effect of advancing
religion by creating a financial incentive to undertake religious
indoctrination." 521 U. S., at 231. We then clarified that this
financial incentive is not present
846
O'CONNOR, J., concurring in judgment
"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."
Ibid. Under Chapter 2, the
Secretary of Education allocates funds to the States based on each
State's share of the Nation's school-age population. 20 U. S. C. §
7311(b). The state educational agency (SEA) of each recipient
State, in turn, must distribute the State's Chapter 2 funds to
local educational agencies (LEA's) "according to the relative
enrollments in public and private, nonprofit schools within the
school districts of such agencies," adjusted to take into account
those LEA's "which have the greatest numbers or percentages of
children whose education imposes a higher than average cost per
child." § 7312(a). The LEA must then expend those funds on
"innovative assistance programs" designed to improve student
achievement. § 7351(b). The statute generally requires that an LEA
ensure the "equitable participation" of children enrolled in
private nonprofit elementary and secondary schools, § 7372(a)(1),
and specifically mandates that all LEA expenditures on behalf of
children enrolled in private schools "be equal (consistent with the
number of children to be served) to expenditures for programs ...
for children enrolled in the public schools of the [LEA]," §
7372(b). As these statutory provisions make clear, Chapter 2 uses
wholly neutral and secular criteria to allocate aid to students
enrolled in religious and secular schools alike. As a result, it
creates no financial incentive to undertake religious
indoctrination.
Agostini next requires us to ask whether Chapter 2
"result[s] in governmental indoctrination." 521 U. S., at 234.
Because this is a more complex inquiry under our case law, it is
useful first to review briefly the basis for our decision in
Agostini that N ew York City's Title I program did not
result in governmental indoctrination. Under that program,
public-school teachers provided Title I instruction to eligible
847
students on private school premises during regular school hours.
Twelve years earlier, in
Aguilar v.
Felton, 473 U. S. 402 (1985), we
had held the same New York City program unconstitutional. In
Ball, a companion case to
Aguilar, we also held that
a similar program in Grand Rapids, Michigan, violated the
Constitution. Our decisions in
Aguilar and
Ball were
both based on a presumption, drawn in large part from
Meek,
see 421 U. S., at 367-373, that public-school instructors who teach
secular classes on the campuses of religious schools will
inevitably inculcate religion in their students.
In
Agostini, we recognized that "[o]ur more recent cases
[had] undermined the assumptions upon which
Ball and
Aguilar relied." 521 U. S., at 222. First, we explained that
the Court had since 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."
Id., at 223. Rather,
relying on
Zobrest, we explained that in the absence of
evidence showing that teachers were actually using the Title I aid
to inculcate religion, we would presume that the instructors would
comply with the program's secular restrictions. See
Agostini, 521 U. S., at 223-224, 226227. The Title I
services were required by statute to be " 'secular, neutral, and
nonideological.'"
Id., at 210 (quoting 20 U. S. C. §
6321(a)(2)).
Second, we noted that the Court had "departed from the rule
relied on in
Ball that all government aid that directly
assists the educational function of religious schools is invalid."
Agostini, supra, at 225. Relying on
Witters and
Zobrest, we noted that our cases had taken a more forgiving
view of neutral government programs that make aid available
generally without regard to the religious or nonreligious character
of the recipient school. See
Agostini, 521 U. S., at
225-226. With respect to the specific Title I pro-
848
O'CONNOR, J., concurring in judgment
gram at issue, we noted several factors that precluded us from
finding an impermissible financing of religious indoctrination: the
aid was "provided to students at whatever school they choose to
attend," the services were "by law supplemental to the regular
curricula" of the benefited schools, "[n]o Title I funds ever reach
the coffers of religious schools," and there was no evidence of
Title I instructors having "attempted to inculcate religion in
students."
Id., at 226-228. Relying on the same factors, we
also concluded that the New York City program could not "reasonably
be viewed as an endorsement of religion."
Id., at 235.
Although we found it relevant that Title I services could not be
provided on a schoolwide basis, we also explained that this fact
was likely a sufficient rather than a necessary condition of the
program's constitutionality. We were not "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."
Id., at 229.
The Chapter 2 program at issue here bears the same hallmarks of
the New York City Title I program that we found important in
Agostini. First, as explained above, Chapter 2 aid is
distributed on the basis of neutral, secular criteria. The aid is
available to assist students regardless of whether they attend
public or private nonprofit religious schools. Second, the statute
requires participating SEA's and LEA's to use and allocate Chapter
2 funds only to supplement the funds otherwise available to a
religious school. 20 U. S. C. § 7371(b). Chapter 2 funds must in no
case be used to supplant funds from non-Federal sources.
Ibid. Third, no Chapter 2 funds ever reach the coffers of a
religious school. Like the Title I program considered in
Agostini, all Chapter 2 funds are controlled by public
agencies-the SEA's and LEA's. § 7372(c)(1). The LEA's purchase
instructional and educational materials and then lend those
materials to public and private schools. See §§ 7351(a), (b)(2).
With respect to lending to private schools under Chapter 2, the
statute
849
specifically provides that the relevant public agency must
retain title to the materials and equipment. § 7372(c)(1). Together
with the supplantation restriction, this provision ensures that
religious schools reap no financial benefit by virtue of receiving
loans of materials and equipment. Finally, the statute provides
that all Chapter 2 materials and equipment must be "secular,
neutral, and nonideological." § 7372(a)(1). That restriction is
reinforced by a further statutory prohibition on "the making of any
payment ... for religious worship or instruction." § 8897. Although
respondents claim that Chapter 2 aid has been diverted to religious
instruction, that evidence is
de minimis, as I explain at
greater length below. See
infra, at 864-867.
III
Respondents contend that
Agostini is distinguishable,
pointing to the distinct character of the aid program considered
there. See Brief for Respondents 44-47. In
Agostini, federal
funds paid for public-school teachers to provide secular
instruction to eligible children on the premises of their religious
schools. Here, in contrast, federal funds pay for instructional
materials and equipment that LEA's lend to religious schools for
use by those schools' own teachers in their classes. Because we
held similar programs unconstitutional in
Meek and
Wolman, respondents contend that those decisions, and not
Agostini, are controlling. See,
e. g., Brief for
Respondents 11,22-25. Like respondents, JUSTICE SOUTER also relies
on
Meek and
Wolman in finding the character of the
Chapter 2 aid constitutionally problematic. See
post, at
893,903.
At the time they were decided,
Meek and
Wolman
created an inexplicable rift within our Establishment Clause
jurisprudence concerning government aid to schools. Seven years
before our decision in
Meek, we held in
Allen that a
New York statute that authorized the lending of textbooks to
students attending religious schools did not violate the
850
O'CONNOR, J., concurring in judgment
Establishment Clause. 392 U. S., at 238. We explained that the
statute "merely [made] available to all children the benefits of a
general program to lend school books free of charge," that the
State retained ownership of the textbooks, and that religious
schools received no financial benefit from the program.
Id.,
at 243-244. We specifically rejected the contrary argument that the
statute violated the Establishment Clause because textbooks are
critical to the teaching process, which in a religious school is
employed to inculcate religion.
Id., at 245-248.
In
Meek and
Wolman, we adhered to
Allen,
holding that the textbook lending programs at issue in each case
did not violate the Establishment Clause. See
Meek, 421 U.
S., at 359-362 (plurality opinion);
Wolman, 433 U. S., at
236238 (plurality opinion). At the same time, however, we held in
both cases that the lending of instructional materials and
equipment to religious schools was unconstitutional. See
Meek,
supra, at 362-366;
Wolman, supra, at 248-251. We
reasoned that, because the religious schools receiving the
materials and equipment were pervasively sectarian, any assistance
in support of the schools' educational missions would inevitably
have the impermissible effect of advancing religion. For example,
in
Meek we explained:
"[I]t would simply ignore reality to attempt to separate secular
educational functions from the predominantly religious role
performed by many of Pennsylvania's church-related elementary and
secondary schools and to then characterize [the statute] as
channeling aid to the secular without providing direct aid to the
sectarian. Even though earmarked for secular purposes, 'when it
flows to an institution in which religion is so pervasive that a
substantial portion of its functions are subsumed in the religious
mission,' state aid has the impermissible primary effect of
advancing religion." 421 U. S., at 365-366 (quoting Hunt v.
McNair, 413 U.
S. 734, 743 (1973)).
851
Thus, we held that the aid program
"necessarily results
in aid to the sectarian school enterprise as a whole," and
"inescapably results in the direct and substantial
advancement of religious activity."
Meek, supra, at 366
(emphases added). Similarly, in
Wolman, we concluded that,
"[i]n view of the impossibility of separating the secular education
function from the sectarian, the state aid
inevitably flows
in part in support of the religious role of the schools." 433 U.
S., at 250 (emphasis added).
For whatever reason, the Court was not willing to extend this
presumption of inevitable religious indoctrination to school aid
when it instead consisted of textbooks lent free of charge. For
example, in
Meek, despite identifying the religious schools'
secular educational functions and religious missions as
inextricably intertwined, 421 U. S., at 366, the Court upheld the
textbook lending program because "the record in the case ... , like
the record in
Allen, contains no suggestion that religious
textbooks will be lent or that the books provided will be used for
anything other than purely secular purposes,"
id., at
361-362 (citation omitted). Accordingly, while the Court was
willing to apply an irrebuttable presumption that secular
instructional materials and equipment would be diverted to use for
religious indoctrination, it required evidence that religious
schools were diverting secular textbooks to religious
instruction.
The inconsistency between the two strands of the Court's
jurisprudence did not go unnoticed, as Justices on both sides of
the
Meek and
Wolman decisions relied on the
contradiction to support their respective arguments. See,
e. g.,
Meek, 421 U. S., at 384 (Brennan, J., concurring in part and
dissenting in part) ("[W]hat the Court says of the instructional
materials and equipment may be said perhaps even more accurately of
the textbooks" (citation omitted));
id., at 390 (REHNQUIST,
J., concurring in judgment in part and dissenting in part) ("The
failure of the majority to justify the differing approaches to
textbooks and instructional materials and
852
O'CONNOR, J., concurring in judgment
equipment in the above respect is symptomatic of its failure
even to attempt to distinguish the ... textbook loan program, which
the plurality upholds, from the ... instructional materials and
equipment loan program, which the majority finds
unconstitutional"). The irrationality of this distinction is
patent. As one Member of our Court has noted, it has meant that "a
State may lend to parochial school children geography textbooks
that contain maps of the United States, but the State may not lend
maps of the United States for use in geography class."
Wallace v.
Jaffree, 472 U. S. 38, 110 (1985)
(REHNQUIST, J., dissenting) (footnotes omitted).
Indeed, technology's advance since the
Allen, Meek, and
Wolman decisions has only made the distinction between
textbooks and instructional materials and equipment more suspect.
In this case, for example, we are asked to draw a constitutional
line between lending textbooks and lending computers. Because
computers constitute instructional equipment, adherence to
Meek and
Wolman would require the exclusion of
computers from any government school aid program that includes
religious schools. Yet, computers are now as necessary as were
schoolbooks 30 years ago, and they play a somewhat similar role in
the educational process. That
Allen, Meek, and
Wolman
would permit the constitutionality of a school aid program to turn
on whether the aid took the form of a computer rather than a book
further reveals the inconsistency inherent in their logic.
Respondents insist that there is a reasoned basis under the
Establishment Clause for the distinction between textbooks and
instructional materials and equipment. They claim that the
presumption that religious schools will use instructional materials
and equipment to inculcate religion is sound because such materials
and equipment, unlike textbooks, are reasonably divertible to
religious uses. For example, no matter what secular criteria the
government employs in selecting a film projector to lend to a
religious school, school officials can always divert that projector
to re-
853
ligious instruction. Respondents therefore claim that the
Establishment Clause prohibits the government from giving or
lending aid to religious schools when that aid is reasonably
divertible to religious uses. See,
e. g., Brief for
Respondents 11,35. JUSTICE SOUTER also states that the
divertibility of secular government aid is an important
consideration under the Establishment Clause, although he
apparently would not ascribe it the constitutionally determinative
status that respondents do. See
post, at 885, 890-895.
I would reject respondents' proposed divertibility rule.
First, respondents cite no precedent of this Court that would
require it. The only possible direct precedential support for such
a rule is a single sentence contained in a footnote from our
Wolman decision. There, the Court described
Allen as
having been "premised on the view that the educational content of
textbooks is something that can be ascertained in advance and
cannot be diverted to sectarian uses."
Wolman, supra, at
251, n. 18. To the extent this simple description of
Allen
is even correct, it certainly does not constitute an actual holding
that the Establishment Clause prohibits the government from lending
any divertible aid to religious schools. Rather, as explained
above, the
Wolman Court based its holding invalidating the
lending of instructional materials and equipment to religious
schools on the rationale adopted in
Meek-that the secular
educational function of a religious school is inseparable from its
religious mission. See
Wolman, 433 U. S., at 250. Indeed, if
anything, the
Wolman footnote confirms the irrationality of
the distinction between textbooks and instructional materials and
equipment. After the
Wolman Court acknowledged that its
holding with respect to instructional materials and equipment was
in tension with
Allen, the Court explained the continuing
validity of
Allen solely on the basis of
stare decisis:
"Board of Education v.
Allen has remained law, and we
now follow as a matter of
stare decisis the principle that
restriction of textbooks to those provided the public schools is
sufficient to ensure
854
O'CONNOR, J., concurring in judgment
that the books will not be used for religious purposes."
Wolman, supra, at 252, n. 18. Thus, the
Wolman Court
never justified the inconsistent treatment it accorded the lending
of textbooks and the lending of instructional materials and
equipment based on the items' reasonable divertibility.
JUSTICE SOUTER'S attempt to defend the divertibility rationale
as a viable distinction in our Establishment Clause jurisprudence
fares no better. For JUSTICE SOUTER, secular school aid presents
constitutional problems not only when it is actually diverted to
religious ends, but also when it simply has the capacity for, or
presents the possibility of, such diversion. See,
e. g.,
post, at 893 (discussing "susceptibility [of secular supplies]
to the service of religious ends"). Thus, he explains the
Allen,
Meek, and
Wolman decisions as follows: "While the
textbooks had a known and fixed secular content not readily
divertible to religious teaching purposes, the adaptable materials
did not."
Post, at 893-894. This view would have come as a
surprise to the Court in
Meek, which expressly conceded that
"the material and equipment that are the subjects of the loan ...
are 'self-polic[ing], in that starting as secular, nonideological
and neutral, they will not change in use.''' 421 U. S., at 365
(quoting
Meek v.
Pittenger, 374 F. Supp. 639, 660 (ED
Pa. 1974)). Indeed, given the nature of the instructional materials
considered in
Meek and
Wolman, it is difficult to
comprehend how a divertibility rationale could have explained the
decisions. The statutes at issue in those cases authorized the
lending of "periodicals, photographs, maps, charts, sound
recordings, [and] films,"
Meek, supra, at 355, and "maps and
globes,"
Wolman, supra, at 249. There is no plausible basis
for saying that these items are somehow more divertible than a
textbook given that each of the above items, like a textbook, has a
fixed and ascertainable content.
In any event, even if
Meek and
Wolman had
articulated the divertibility rationale urged by respondents and
JUSTICE
855
SOUTER, I would still reject it for a more fundamental reason.
Stated simply, the theory does not provide a logical distinction
between the lending of textbooks and the lending of instructional
materials and equipment. An educator can use virtually any
instructional tool, whether it has ascertainable content or not, to
teach a religious message. In this respect, I agree with the
plurality that "it is hard to imagine any book that could not, in
even moderately skilled hands, serve to illustrate a religious
message."
Ante, at 823. In to day's case, for example, we
are asked to draw a constitutional distinction between lending a
textbook and lending a library book. JUSTICE SOUTER'S try at
justifying that distinction only demonstrates the absurdity on
which such a difference must rest. He states that "[a]lthough
library books, like textbooks, have fixed content, religious
teachers can assign secular library books for religious critique."
Post, at 903. Regardless of whether that explanation is even
correct (for a student surely could be given a religious assignment
in connection with a textbook too), it is hardly a distinction on
which constitutional law should turn. Moreover, if the mere ability
of a teacher to devise a religious lesson involving the secular aid
in question suffices to hold the provision of that aid
unconstitutional, it is difficult to discern any limiting principle
to the divertibility rule. For example, even a publicly financed
lunch would apparently be unconstitutional under a divertibility
rationale because religious school officials conceivably could use
the lunch to lead the students in a blessing over the bread. See
Brief for Avi Chai Foundation as
Amicus Curiae 18.
To the extent JUSTICE SOUTER believes several related
Establishment Clause decisions require application of a
divertibility rule in the context of this case, I respectfully
disagree. JUSTICE SOUTER is correct to note our continued
recognition of the special dangers associated with direct money
grants to religious institutions. See
post, at 890-893. It
does not follow, however, that we should treat as constitu-
856
O'CONNOR, J., concurring in judgment
tionally suspect any form of secular aid that might conceivably
be diverted to a religious use. As the cases JUSTICE SOUTER cites
demonstrate, our concern with direct monetary aid is based on more
than just diversion. In fact, the most important reason for
according special treatment to direct money grants is that this
form of aid falls precariously close to the original object of the
Establishment Clause's prohibition. See,
e. g., Walz v.
Tax Comm'n of City of New York, 397 U. S. 664, 668 (1970)
("[F]or the men who wrote the Religion Clauses of the First
Amendment the 'establishment' of a religion connoted sponsorship,
financial support, and active involvement of the sovereign in
religious activity"). Statements concerning the constitutionally
suspect status of direct cash aid, accordingly, provide no
justification for applying an absolute rule against divertibility
when the aid consists instead of instructional materials and
equipment.
JUSTICE SOUTER also relies on our decisions in
Wolman (to
the extent it concerned field-trip transportation for nonpublic
schools),
Levitt v.
Committee for Public Ed. &
Religious Liberty, 413 U. S. 472 (1973),
Tilton v.
Richardson, 403 U. S. 672 (1971), and
Bowen. See
post, at 893-895. None requires
application of a divertibility rule in the context of this case.
Wolman and
Levitt were both based on the same
presumption that government aid will be used in the inculcation of
religion that we have chosen not to apply to textbook lending
programs and that we have more generally rejected in recent
decisions. Compare
Wolman, 433 U. S., at 254;
Levitt,
supra, at 480, with
supra, at 851-852;
infra, at
859. In
Tilton, we considered a federal statute that
authorized grants to universities for the construction of buildings
and facilities to be used exclusively for secular educational
purposes. See 403 U. S., at 674-675. We held the statute
unconstitutional only to the extent that a university's "obligation
not to use the facility for sectarian instruction or religious
worship ... appear[ed] to expire at the end of 20 years."
Id., at 683. To hold a statute unconstitutional because it
lacks a secular content restriction is quite different
857
from resting on a divertibility rationale. Indeed, the fact that
we held the statute constitutional in all other respects is more
probative on the divertibility question because it demonstrates our
willingness to presume that the university would abide by the
secular content restriction during the years the requirement was in
effect. In any event, Chapter 2 contains both a secular content
restriction, 20 U. S. C. § 7372(a)(1), and a prohibition on the use
of aid for religious worship or instruction, § 8897, so
Tilton provides no basis for upholding respondents'
challenge. Finally, our decision in
Bowen proves only that
actual diversion, as opposed to mere divertibility, is
constitutionally impermissible. See,
e. g., 487 U.
S., at 621. Had we believed that the divertibility of secular aid
was sufficient to call the aid program into question, there would
have been no need for the remand we ordered and no basis for the
reversal.
IV
Because divertibility fails to explain the distinction our cases
have drawn between textbooks and instructional materials and
equipment, there remains the question of which of the two
irreconcilable strands of our Establishment Clause jurisprudence we
should now follow. Between the two, I would adhere to the rule that
we have applied in the context of textbook lending programs: To
establish a First Amendment violation, plaintiffs must prove that
the aid in question actually is, or has been, used for religious
purposes. See
Meek, 421 U. S., at 361-362;
Allen, 392
U. S., at 248. Just as we held in
Agostini that our more
recent cases had undermined the assumptions underlying
Ball
and
Aguilar, I would now hold that
Agostini and the
cases on which it relied have undermined the assumptions underlying
Meek and
Wolman. To be sure,
Agostini only
addressed the specific presumption that public-school employees
teaching on the premises of religious schools would inevitably
inculcate religion. Nevertheless, I believe that our definitive
rejection of that presumption also stood for-or at least
strongly
858
O'CONNOR, J., concurring in judgment
pointed to-the broader proposition that such presumptions of
religious indoctrination are normally inappropriate when evaluating
neutral school aid programs under the Establishment Clause. In
Agostini, we repeatedly emphasized that it would be
inappropriate to presume inculcation of religion; rather,
plaintiffs raising an Establishment Clause challenge must present
evidence that the government aid in question has resulted in
religious indoctrination. See 521 U. S., at 223-224, 226-227. We
specifically relied on our statement in
Zobrest that a
presumption of indoctrination, because it constitutes an absolute
bar to the aid in question regardless of the religious school's
ability to separate that aid from its religious mission,
constitutes a "flat rule, smacking of antiquated notions of
'taint,' [that] would indeed exalt form over substance." 509 U. S.,
at 13. That reasoning applies with equal force to the presumption
in
Meek and
Ball concerning instructional materials
and equipment. As we explained in
Agostini, "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." 521 U. S., at 225.
Respondents contend that
Agostini should be limited to
its facts, and point specifically to the following statement from
my separate opinion in
Ball as the basis for retaining a
presumption of religious inculcation for instructional materials
and equipment:
"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." 473
U. S., at 399-400 (concurring in judgment in part and dissenting in
part).
859
Respondents note that in
Agostini we did not overrule
that portion of
Ball holding the Community Education program
unconstitutional. Under that program, the government paid religious
school teachers to operate as part-time public teachers at their
religious schools by teaching secular classes at the conclusion of
the regular schoolday.
Ball, 473 U. S., at 376-377. Relying
on both the majority opinion and my separate opinion in
Ball, respondents therefore contend that we must presume
that religious school teachers will inculcate religion in their
students. If that is so, they argue, we must also presume that
religious school teachers will be unable to follow secular
restrictions on the use of instructional materials and equipment
lent to their schools by the government. See Brief for Respondents
26-29.
I disagree, however, that the latter proposition follows from
the former. First, as our holding in
Allen and its
reaffirmance in
Meek and
Wolman demonstrate, the
Court's willingness to assume that religious school instructors
will inculcate religion has not caused us to presume also that such
instructors will be unable to follow secular restrictions on the
use of textbooks. I would similarly reject any such presumption
regarding the use of instructional materials and equipment. When a
religious school receives textbooks or instructional materials and
equipment lent with secular restrictions, the school's teachers
need not refrain from teaching religion altogether. Rather, the
instructors need only ensure that any such religious teaching is
done without the instructional aids provided by the government. We
have always been willing to assume that religious school
instructors can abide by such restrictions when the aid consists of
textbooks, which Justice Brennan described as "surely the heart
tools of ... education."
Meek, supra, at 384 (concurring in
part and dissenting in part). The same assumption should extend to
instructional materials and equipment.
For the same reason, my position in
Ball is
distinguishable.
There, the government paid for religious school instructors
860
O'CONNOR, J., concurring in judgment
to teach classes supplemental to those offered during the normal
schoolday. In that context, I was willing to presume that the
religious school teacher who works throughout the day to advance
the school's religious mission would also do so, at least to some
extent, during the supplemental classes provided at the end of the
day. Because the government financed the entirety of such classes,
any religious indoctrination taking place therein would be directly
attributable to the government. In the instant case, because the
Chapter 2 aid concerns only teaching tools that must remain
supplementary, the aid constitutes only a portion of the teacher's
educational efforts during any single class. In this context, I
find it easier to believe that a religious school teacher can abide
by the secular restrictions placed on the government assistance. I
therefore would not presume that the Chapter 2 aid will advance, or
be perceived to advance, the school's religious mission.
v
Respondents do not rest, however, on their divertibility
argument alone. Rather, they also contend that the evidence
respecting the actual administration of Chapter 2 in Jefferson
Parish demonstrates that the program violated the Establishment
Clause. First, respondents claim that the program's safeguards are
insufficient to uncover instances of actual diversion. Brief for
Respondents 37, 42-43, 4547. Second, they contend that the record
shows that some religious schools in Jefferson Parish may have used
their Chapter 2 aid to support religious education (i.
e.,
that they diverted the aid).
Id., at 36-37. Third,
respondents highlight violations of Chapter 2's secular content
restrictions.
Id., at 39-41. And, finally, they note
isolated examples of potential violations of Chapter 2's
supplantation restriction.
Id., at 43-44. Based on the
evidence underlying the first and second claims, the plurality
appears to contend that the Chapter 2 program can be upheld only if
actual diversion of government aid to the advancement of
religion
861
is permissible under the Establishment Clause. See
ante,
at 832-834. Relying on the evidence underlying all but the last of
the above claims, JUSTICE SOUTER concludes that the Chapter 2
program, as applied in Jefferson Parish, violated the Establishment
Clause. See
post, at 902-910. I disagree with both the
plurality and JUSTICE SOUTER. The limited evidence amassed by
respondents during 4 years of discovery (which began approximately
15 years ago) is at best
de minimis and therefore
insufficient to affect the constitutional inquiry.
The plurality and JUSTICE SOUTER direct the primary thrust of
their arguments at the alleged inadequacy of the program's
safeguards. Respondents, the plurality, and JusTICE SOUTER all
appear to proceed from the premise that, so long as actual
diversion presents a constitutional problem, the government must
have a failsafe mechanism capable of detecting
any instance
of diversion. We rejected that very assumption, however, in
Agostini. There, we explained that because we had "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." 521 U. S., at 234 (emphasis in original). Because I
believe that the Court should abandon the presumption adopted in
Meek and
Wolman respecting the use of instructional
materials and equipment by religious school teachers, I see no
constitutional need for
pervasive monitoring under the
Chapter 2 program.
The safeguards employed by the program are constitutionally
sufficient. At the federal level, the statute limits aid to
"secular, neutral, and nonideological services, materials, and
equipment," 20 U. S. C. § 7372(a)(1); requires that the aid only
supplement and not supplant funds from non-Federal sources, §
7371(b); and prohibits "any payment ... for religious worship or
instruction," § 8897. At the state level, the Louisiana Department
of Education (the relevant SEA for
862
O'CONNOR, J., concurring in judgment
Louisiana) requires all nonpublic schools to submit signed
assurances that they will use Chapter 2 aid only to supplement and
not to supplant non-Federal funds, and that the instructional
materials and equipment "will only be used for secular, neutral and
nonideological purposes." App. 260a261a; see also
id., at
120a. Although there is some dispute concerning the mandatory
nature of these assurances, Dan Lewis, the director of Louisiana's
Chapter 2 program, testified that all of the State's nonpublic
schools had thus far been willing to sign the assurances, and that
the State retained the power to cut off aid to any school that
breached an assurance.
Id., at 122a-123a. The Louisiana SEA
also conducts monitoring visits to each of the State's LEA's-and
one or two of the nonpublic schools covered by the relevant LEAonce
every three years.
Id., at 95a-96a. In addition to other
tasks performed on such visits, SEA representatives conduct a
random review of a school's library books for religious content.
Id., at 99a.
At the local level, the Jefferson Parish Public School System
(JPPSS) requires nonpublic schools seeking Chapter 2 aid to submit
applications, complete with specific project plans, for approval.
Id., at 127a;
id., at 194a-203a (sample application).
The JPPSS then conducts annual monitoring visits to each of the
nonpublic schools receiving Chapter 2 aid.
Id., at
141a-142a. On each visit, a JPPSS representative meets with a
contact person from the nonpublic school and reviews with that
person the school's project plan and the manner in which the school
has used the Chapter 2 materials and equipment to support its plan.
Id., at 142a, 149a. The JPPSS representative also reminds
the contact person of the prohibition on the use of Chapter 2 aid
for religious purposes,
id., at 149a, and conducts a random
sample of the school's Chapter 2 materials and equipment to ensure
that they are appropriately labeled and that the school has
maintained a record of their usage,
id., at 142a-144a.
(Although the plurality and JUSTICE SOUTER claim that
compliance
863
with the labeling requirement was haphazard, both cite only a
statewide monitoring report that includes no specific findings with
respect to Jefferson Parish.
Ante, at 832-833 (citing App.
113a);
post, at 906 (same).) Finally, the JPPSS
representative randomly selects library books the nonpublic school
has acquired through Chapter 2 and reviews their content to ensure
that they comply with the program's secular content restriction.
App. 210a. If the monitoring does not satisfy the JPPSS
representative, another visit is scheduled.
Id., at
151a-152a. Apart from conducting monitoring visits, the JPPSS
reviews Chapter 2 requests filed by participating nonpublic
schools. As part of this process, a JPPSS employee examines the
titles of requested library books and rejects any book whose title
reveals (or suggests) a religious subject matter.
Id., at
135a, 137a-138a. As the above description of the JPPSS monitoring
process should make clear, JUSTICE SOUTER'S citation of a statewide
report finding a lack of monitoring in some Louisiana LEA's is
irrelevant as far as Jefferson Parish is concerned. See
post, at 906 (quoting App. ll1a).
Respondents, the plurality, and JUSTICE SOUTER all fault the
above-described safeguards primarily because they depend on the
good faith of participating religious school officials. For
example, both the plurality and JUSTICE SOUTER repeatedly cite
testimony by state and parish officials acknowledging that the
safeguards depend to a certain extent on the religious schools'
self-reporting and that, therefore, there is no way for the State
or Jefferson Parish to say definitively that no Chapter 2 aid is
diverted to religious purposes. See,
e. g., ante, at
832-833, n. 15;
post, at 906-907. These admissions, however,
do not prove that the safeguards are inadequate. To find that
actual diversion will flourish, one must presume bad faith on the
part of the religious school officials who report to the JPPSS
monitors regarding the use of Chapter 2 aid. I disagree with the
plurality and JUSTICE SOUTER on this point and believe that it is
entirely
864
O'CONNOR, J., concurring in judgment
proper to presume that these school officials will act in good
faith. That presumption is especially appropriate in this case,
since there is no proof that religious school officials have
breached their schools' assurances or failed to tell government
officials the truth. Cf.
Tilton, 403 U. S., at 679 ("A
possibility always exists, of course, that the legitimate
objectives of any law or legislative program may be subverted by
conscious design or lax enforcement .... But judicial concern about
these possibilities cannot, standing alone, warrant striking down a
statute as unconstitutional").
The evidence proffered by respondents, and relied on by the
plurality and JUSTICE SOUTER, concerning actual diversion of
Chapter 2 aid in Jefferson Parish is
de minimis. Respondents
first cite the following statement from a Jefferson Parish
religious school teacher: "Audio-visual materials are a very
necessary and enjoyable tool used when teaching young children. As
a second grade teacher I use them in all subjects and see a very
positive result." App. 108a. Respondents' only other evidence
consists of a chart concerning one Jefferson Parish religious
school, which shows that the school's theology department was a
significant user of audiovisual equipment. See
id., at
206a-208a. Although an accompanying letter indicates that much of
the school's equipment was purchased with federal funds,
id., at 205a, the chart does not provide a breakdown
identifying specific Chapter 2 usage. Indeed, unless we are to
relieve respondents of their evidentiary burden and presume a
violation of Chapter 2, we should assume that the school used its
own equipment in the theology department and the Chapter 2
equipment elsewhere. The more basic point, however, is that neither
piece of evidence demonstrates that Chapter 2 aid actually was
diverted to religious education. At most, it proves the possibility
that, out of the more than 40 nonpublic schools in Jefferson Parish
participating in Chapter 2, aid may have been diverted in one
school's second-grade class and another school's theology
department.
865
The plurality's insistence that this evidence is somehow
substantial flatly contradicts its willingness to disregard
similarly insignificant evidence of violations of Chapter 2's
supplantation and secular content restrictions. See
ante, at
815, n. 7 (finding no "material statutory violation" of the
supplantation restriction);
ante, at 835 (characterizing
violations of secular content restriction as "scattered" and
"de
minimis"). As I shall explain below, I believe the evidence on
all three points is equally insignificant and, therefore, should be
treated the same.
JUSTICE SOUTER also relies on testimony by one religious school
principal indicating that a computer lent to her school under
Chapter 2 was connected through a network to nonChapter 2
computers. See
post, at 910 (citing App. 77a). The principal
testified that the Chapter 2 computer would take over the network
if another non-Chapter 2 computer were to break down.
Ibid.
To the extent the principal's testimony even proves that Chapter 2
funds were diverted to the school's religious mission, the evidence
is hardly compelling.
JUSTICE SOUTER contends that
any evidence of actual
diversion requires the Court to declare the Chapter 2 program
unconstitutional as applied in Jefferson Parish.
Post, at
909, n. 27. For support, he quotes my concurring opinion in
Bowen and the statement therein that
"any use of
public funds to promote religious doctrines violates the
Establishment Clause." 487 U. S., at 623 (emphasis in original).
That principle of course remains good law, but the next sentence in
my opinion is more relevant to the case at hand:
"[E]xtensive violations-if they can be proved in this
casewill be highly relevant in shaping an appropriate remedy that
ends such abuses."
Ibid. (emphasis in original). I know of
no case in which we have declared an entire aid program
unconstitutional on Establishment Clause grounds solely because of
violations on the minuscule scale of those at issue here. Yet that
is precisely the remedy respondents
866
O'CONNOR, J., concurring in judgment
requested from the District Court and that they were granted by
the Court of Appeals. See App. 51a;
Helms v.
Picard,
151 F.3d
347, 377
(CAS 1998), amended,
165
F.3d 311, 312
(CAS 1999). While extensive violations
might require a remedy along the lines asked for by respondents, no
such evidence has been presented here. To the contrary, the
presence of so few examples over a period of at least 4 years (15
years ago) tends to show not that the "no-diversion" rules have
failed, but that they have worked. Accordingly, I see no reason to
affirm the judgment below and thereby declare a properly
functioning aid program unconstitutional.
Respondents' next evidentiary argument concerns an admitted
violation of Chapter 2's secular content restriction. Over three
years, Jefferson Parish religious schools ordered approximately 191
religious library books through Chapter 2. App. 129a-133a. Dan
Lewis, the director of Louisiana's Chapter 2 program, testified
that he discovered some of the religious books while performing a
random check during a state monitoring visit to a Jefferson Parish
religious school.
Id., at 99a-l00a. The discovery prompted
the State to notify the JPPSS, which then reexamined book requests
dating back to 1982, discovered the 191 books in question, and
recalled them.
Id., at 130a-133a. This series of events
demonstrates not that the Chapter 2 safeguards are inadequate, but
rather that the program's monitoring system succeeded. Even if I
were instead willing to find this incident to be evidence of a
likelihood of future violations, the evidence is insignificant. The
191 books constituted less than one percent of the total allocation
of Chapter 2 aid in Jefferson Parish during the relevant years.
Id., at 132a. JUSTICE SOUTER understandably concedes that
the book incident constitutes "only limited evidence."
Post,
at 909. I agree with the plurality that, like the above evidence of
actual diversion, the borrowing of the religious library books
constitutes only
de minimis evidence. See
ante, at
835.
867
Respondents' last evidentiary challenge concerns the
effectiveness of Chapter 2's supplantation restriction in Jefferson
Parish. Although JUSTICE SOUTER does not rest his decision on this
point, he does "not[e] the likelihood that unconstitutional
supplantation occurred as well."
Post, at 910, n. 28. I
disagree. The evidence cited by respondents and JUSTICE SOUTER is
too ambiguous to rest any sound conclusions on and, at best, shows
some scattered violations of the statutory supplantation
restriction that are too insignificant in aggregate to affect the
constitutional inquiry. Indeed, even JUSTICE SOUTER concedes in
this respect that "[t]he record is sparse."
Post, at 911, n.
28.
***
Given the important similarities between the Chapter 2 program
here and the Title I program at issue in
Agostini,
respondents' Establishment Clause challenge must fail. As in
Agostini, the Chapter 2 aid is allocated on the basis of
neutral, secular criteria; the aid must be supplementary and cannot
supplant non-Federal funds; no Chapter 2 funds ever reach the
coffers of religious schools; the aid must be secular; any evidence
of actual diversion is
de minimis; and the program includes
adequate safeguards. Regardless of whether these factors are
constitutional requirements, they are surely sufficient to find
that the program at issue here does not have the impermissible
effect of advancing religion. For the same reasons, "this carefully
constrained program also cannot reasonably be viewed as an
endorsement of religion."
Agostini, 521 U. S., at 235.
Accordingly, I concur in the judgment.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
The First Amendment's Establishment Clause prohibits Congress
(and, by incorporation, the States) from making any law respecting
an establishment of religion. It has been
868
held to prohibit not only the institution of an official church,
but any government act favoring religion, a particular religion, or
for that matter irreligion. Thus, it bars the use of public funds
for religious aid.
The establishment prohibition of government religious funding
serves more than one end. It is meant to guarantee the right of
individual conscience against compulsion, to protect the integrity
of religion against the corrosion of secular support, and to
preserve the unity of political society against the implied
exclusion of the less favored and the antagonism of controversy
over public support for religious causes.
These objectives are always in some jeopardy since the
substantive principle of no aid to religion is not the only
limitation on government action toward religion. Because the First
Amendment also bars any prohibition of individual free exercise of
religion, and because religious organizations cannot be isolated
from the basic government functions that create the civil
environment, it is as much necessary as it is difficult to draw
lines between forbidden aid and lawful benefit. For more than 50
years, this Court has been attempting to draw these lines. Owing to
the variety of factual circumstances in which the lines must be
drawn, not all of the points creating the boundary have enjoyed
self-evidence.
So far as the line drawn has addressed government aid to
education, a few fundamental generalizations are nonetheless
possible. There may be no aid supporting a sectarian school's
religious exercise or the discharge of its religious mission, while
aid of a secular character with no discernible benefit to such a
sectarian objective is allowable. Because the religious and secular
spheres largely overlap in the life of many such schools, the Court
has tried to identify some facts likely to reveal the relative
religious or secular intent or effect of the government benefits in
particular circumstances. We have asked whether the government is
acting neutrally in distributing its money, and about the form of
the aid itself, its path from government to religious
institution,
869
its divertibility to religious nurture, its potential for
reducing traditional expenditures of religious institutions, and
its relative importance to the recipient, among other things.
In all the years of its effort, the Court has isolated no single
test of constitutional sufficiency, and the question in every case
addresses the substantive principle of no aid: what reasons are
there to characterize this benefit as aid to the sectarian school
in discharging its religious mission? Particular factual
circumstances control, and the answer is a matter of judgment.
In what follows I will flesh out this summary, for this case
comes at a time when our judgment requires perspective on how the
Establishment Clause has come to be understood and applied. It is
not just that a majority today mistakes the significance of facts
that have led to conclusions of unconstitutionality in earlier
cases, though I believe the Court commits error in failing to
recognize the divertibility of funds to the service of religious
objectives. What is more important is the view revealed in the
plurality opinion, which espouses a new conception of neutrality as
a practically sufficient test of constitutionality that would, if
adopted by the Court, eliminate enquiry into a law's effects. The
plurality position breaks fundamentally with Establishment Clause
principle, and with the methodology painstakingly worked out in
support of it. I mean to revisit that principle and describe the
methodology at some length, lest there be any question about the
rupture that the plurality view would cause. From that new view of
the law, and from a majority's mistaken application of the old, I
respectfully dissent.
I
The prohibition that "Congress shall make no law respecting an
establishment of religion," U. S. Const., Arndt. 1, eludes elegant
conceptualization simply because the prohibition applies to such
distinct phenomena as state churches and aid to religious schools,
and as applied to school aid has
870
prompted challenges to programs ranging from construction
subsidies to hearing aids to textbook loans. Any criteria,
moreover, must not only define the margins of the establishment
prohibition, but must respect the succeeding Clause of the First
Amendment guaranteeing religion's free exercise.
Ibid. It is
no wonder that the complementary constitutional provisions and the
inexhaustably various circumstances of their applicability have
defied any simple test and have instead produced a combination of
general rules often in tension at their edges. If coherence is to
be had, the Court has to keep in mind the principal objectives
served by the Establishment Clause, and its application to school
aid, and their recollection may help to explain the
misunderstandings that underlie the majority's result in this
case.
A
At least three concerns have been expressed since the founding
and run throughout our First Amendment jurisprudence. First,
compelling an individual to support religion violates the
fundamental principle of freedom of conscience. Madison's and
Jefferson's now familiar words establish clearly that liberty of
personal conviction requires freedom from coercion to support
religion,l and this means that the government can compel no aid to
fund it. Madison put it simply: "[T]he same authority which can
force a citizen to
IJefferson's Virginia Bill for Establishing Religious Freedom
provided "[t]hat no man shall be compelled to frequent or support
any religious worship, place, or ministry whatsoever .... "
Jefferson, A Bill for Establishing Religious Freedom, in 5 The
Founder's Constitution 84 (P. Kurland & R. Lerner eds. 1987);
see also
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S.
819, 870-872 (1995) (SOUTER, J., dissenting). We have
"previously recognized that the provisions of the First Amendment,
in the drafting and adoption of which Madison and Jefferson played
such leading roles, had the same objective and were intended to
provide the same protection against governmental intrusion on
religious liberty as the Virginia statute."
Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 13 (1947).
871
contribute three pence only of his property for the support of
anyone establishment, may force him to conform to any other
establishment." Memorial and Remonstrance ~ 3, reprinted in
Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 64, 65-66
(1947). Any tax to establish religion is antithetical to the
command "that the minds of men always be wholly free."
Id.,
at 12 (discussing Madison's Memorial and Remonstrance);
id.,
at 13 (noting Jefferson's belief that "compel[ling] a man to
furnish contributions of money for the propagation of opinions
which he disbelieves, is sinful and tyrannical; ... even the
forcing him to support this or that teacher of his own religious
persuasion, is depriving him of the comfortable liberty of giving
his contributions to the particular pastor, whose morals he would
make his pattern" (internal quotation marks omitted)); see also
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
868-874 (1995) (SOUTER, J., dissenting).
Second, government aid corrupts religion. See
Engel v.
Vitale, 370 U.
S. 421, 431 (1962) ("[The Establishment Clause's] first and
most immediate purpose rested on the belief that a union of
government and religion tends to destroy government and to degrade
religion");
Everson, supra, at 53 (Rutledge, J.,
dissenting). Madison argued that establishment of religion weakened
the beliefs of adherents so favored, strengthened their opponents,
and generated "pride and indolence in the Clergy; ignorance and
servility in the laity; [and] in both, superstition, bigotry and
persecution." Memorial and Remonstrance ~ 7, quoted in
Everson,
330 U. S., at 67. "[E]xperience witnesseth that ecclesiastical
establishments, instead of maintaining the purity and efficacy of
Religion, have had a contrary operation."
Ibid. In a variant
of Madison's concern, we have repeatedly noted that a government's
favor to a particular religion or sect threatens to taint it with
"corrosive secularism."
Lee v.
Weisman, 505 U. S. 577, 608 (1992)
(internal quotation marks and citations omitted); see also
Illinois ex rel. McCollum v.
Board
872
of Ed. of School Dist. No. 71, Champaign Cty.,
333 U. S. 203, 228
(1948).
"[G]overnment and religion have discrete interests which are
mutually best served when each avoids too close a proximity to the
other. It is not only the nonbeliever who fears the injection of
sectarian doctrines and controversies into the civil polity, but in
as high degree it is the devout believer who fears the
secularization of a creed which becomes too deeply involved with
and dependent upon the government." School Dist. of Abington
Township v. Schempp, 374 U. S. 203, 259 (1963)
(Brennan, J., concurring).
See also
Rosenberger, supra, at 890-891 (SOUTER, J.,
dissenting).
Third, government establishment of religion is inextricably
linked with conflict.
Everson, supra, at 8-11 (relating
colonists' understanding of recent history of religious persecution
in countries with established religion);
Engel, supra, at
429 (discussing struggle among religions for government approval);
Lemon v.
Kurtzman, 403 U. S. 602, 623
(1971). In our own history, the turmoil thus produced has led to a
rejection of the idea that government should subsidize religious
education,
id., at 645-649 (opinion of Brennan, J.)
(discussing history of rejection of support for religious schools);
McCollum, supra, at 214-217 (opinion of Frankfurter, J.), a
position that illustrates the Court's understanding that any
implicit endorsement of religion is unconstitutional, see
County
of Allegheny v.
American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 592-594
(1989).2
2 The plurality mistakes my recognition of this fundamental
concern.
Ante, at 825-826. The Court may well have moved away from
considering the political divisiveness threatened by particular
instances of aid as a practical criterion for applying the
Establishment Clause case by case, but we have never questioned its
importance as a motivating concern behind the Establishment Clause,
nor could we change history to find that sectarian conflict did not
influence the Framers who wrote it.
873
B
These concerns are reflected in the Court's classic summation
delivered in
Everson v.
Board of Education, supra,
its first opinion directly addressing standards governing aid to
religious schools: 3
"The 'establishment of religion' clause of the First Amendment
means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. Neither can
force nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in
any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance
or non-attendance. No tax in any amount, large or small, can be
levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to
teach or practice religion. Neither a state nor the Federal
Government can, openly or secretly, participate in the affairs of
any religious organizations or groups and vice versa. In the
words of Jefferson, the clause against establishment of religion by
law was intended to erect 'a wall of separation between church and
State.'" 330 U. S., at 15-16 (quoting Reynolds v. United
States, 98 U. S.
145, 164 (1879)).
The most directly pertinent doctrinal statements here are these:
no government "can pass laws which aid one religion
3 The Court upheld payments by Indian tribes to apparently Roman
Catholic schools in
Quick Bear v.
Leupp, 210 U. S. 50 (1908),
suggesting in dicta that there was no Establishment Clause problem,
but it did not squarely face the question. Nor did the Court
address a First Amendment challenge to a state program providing
textbooks to children in
Cochran v.
Louisiana Bd. of
Ed., 281 U. S.
370 (1930); it simply concluded that the program had an
adequate public purpose. The Court first squarely faced the issue
in
Everson.
874
[or] all religions .. No tax in any amount ... can be levied to
support any religious activities or institutions ... whatever form
they may adopt to teach ... religion." 330 U. S., at 16. Thus, the
principle of "no aid," with which no one in
Everson
disagreed.4
Immediately, however, there was the difficulty over what might
amount to "aid" or "support." The problem for the
Everson
Court was not merely the imprecision of the words, but the "other
language of the [First Amendment that] commands that [government]
cannot hamper its citizens in the free exercise of their own
religion,"
ibid., with the consequence that government must
"be a neutral in its relations with groups of religious believers
and non-believers,"
id., at 18. Since withholding some
public benefits from religious groups could be said to "hamper"
religious exercise indirectly, and extending other benefits said to
aid it, an argument-proof formulation of the no-aid principle was
impossible, and the Court wisely chose not to attempt any such
thing. Instead it gave definitive examples of public benefits
provided pervasively throughout society that would be of some value
to organized religion but not in a way or to a degree that could
sensibly be described as giving it aid or violating the neutrality
requirement: there was no Establishment Clause concern with "such
general government services as ordinary police and fire protection,
connections for sewage disposal, public highways and sidewalks."
Id., at 17-18. These "benefits of public welfare
legislation,"
id., at 16, extended in modern times to
virtually every member of the population and valuable to every
person and association, were the paradigms of advantages that
religious organiza-
4 While
Everson's dissenters parted company with the
majority over the specific question of school buses, the Court
stood as one behind the principle of no aid for religious teaching.
330 U. S., at 15-16;
id., at 25-26 (Jackson, J.,
dissenting);
id., at 28-29, 31-32 (Rutledge, J.,
dissenting).
875
tions could enjoy consistently with the prohibition against aid,
and that governments could extend without deserting their required
position of neutrality.
But paradigms are not perfect fits very often, and government
spending resists easy classification as between universal general
service or subsidy of favoritism. The 5-to-4 division of the
Everson Court turned on the inevitable question whether
reimbursing all parents for the cost of transporting their children
to school was close enough to police protection to tolerate its
indirect benefit in some degree to religious schools, with the
majority in
Everson thinking the reimbursement statute fell
on the lawful side of the line. Although the state scheme
reimbursed parents for transporting children to sectarian schools,
among others, it gave "no money to the schools. It [did] not
support them. Its legislation [did] no more than provide a general
program to help parents get their children, regardless of their
religion, safely and expeditiously to and from accredited schools."
Id., at 18. The dissenters countered with factual analyses
showing the limitation of the law's benefits in fact to private
school pupils who were Roman Catholics,
id., at 20 (Jackson,
J., dissenting), and indicating the inseparability of transporting
pupils to school from support for the religious instruction that
was the school's
raison d'etre, id., at 45-46 (Rutledge, J.,
dissenting).
Everson is usefully understood in the light of a
successor case two decades later,
Board of Ed. of Central School
Dist. No.1 v.
Allen, 392 U. S. 236 (1968), in
which the challenged government practice was lending textbooks to
pupils of schools both public and private, including religious ones
(as to which there was no evidence that they had previously
supplied books to their classes and some evidence that they had
not,
id., at 244, n. 6). By the time of
Allen, the
problem of classifying the state benefit, as between aid to
religion and general public service consistent with government
neutral-
876
ity, had led to the formulation of a "test" that required
secular, primary intent and effect as necessary conditions of any
permissible scheme.
Id., at 243. Again the Court split,
upholding the state law in issue, but with
Everson's
majority author, Justice Black, now in dissent. What is remarkable
about
Allen today, however, is not so much its division as
its methodology, for the consistency in the way the Justices went
about deciding the case transcended their different conclusions.
Neither side rested on any facile application of the "test" or any
simplistic reliance on the generality or evenhandedness of the
state law. Disagreement concentrated on the true intent inferrable
behind the law, the feasibility of distinguishing in fact between
religious and secular teaching in church schools, and the reality
or sham of lending books to pupils instead of supplying books to
schools. The majority, to be sure, cited the provision for books to
all schoolchildren, regardless of religion, 392 U. S., at 243, just
as the
Everson majority had spoken of the transportation
reimbursement as going to all, 330 U. S., at 16, in each case for
the sake of analogy to the provision of police and fire services.5
But the stress was on the practical significance of the actual
benefits received by the schools. As
Everson had rested on
the understanding that no money and no support went to the school,
id., at 18,
Allen emphasized that the savings to
parents were devoid of any measurable effect in teaching religion,
392 U. S., at 243-244. Justice Harlan, concurring, summed up the
approach with his observations that the required government
"[n]eutrality is ... a coat of many colors," and quoted Justice
Goldberg's conclusion, that there was "'no simple and clear
measure' ... by which this or any [religious school aid] case may
readily be decided,"
id., at 249 (quoting
Schempp,
374 U. S., at 306).
5 Indeed, two of the dissenters in
Allen agreed with the
majority on this method of analysis, asking whether the books at
issue were similar enough to fire and police protection. See 392 U.
S., at 252 (Black, J., dissenting);
id., at 272 (Fortas, J.,
dissenting).
877
After
Everson and
Allen, the state of the law
applying the Establishment Clause to public expenditures producing
some benefit to religious schools was this:
1. Government aid to religion is forbidden, and tax revenue may
not be used to support a religious school or religious
teaching.
2. Government provision of such paradigms of universally general
welfare benefits as police and fire protection does not count as
aid to religion.
3. Whether a law's benefit is sufficiently close to universally
general welfare paradigms to be classified with them, as distinct
from religious aid, is a function of the purpose and effect of the
challenged law in all its particularity. The judgment is not
reducible to the application of any formula. Evenhandedness of
distribution as between religious and secular beneficiaries is a
relevant factor, but not a sufficiency test of constitutionality.
There is no rule of religious equal protection to the effect that
any expenditure for the benefit of religious school students is
necessarily constitutional so long as public school pupils are
favored on ostensibly identical terms.
4. Government must maintain neutrality as to religion,
"neutrality" being a conclusory label for the required position of
government as neither aiding religion nor impeding religious
exercise by believers. "Neutrality" was not the name of any test to
identify permissible action, and in particular, was not synonymous
with evenhandedness in conferring benefit on the secular as well as
the religious.
Today, the substantive principle of no aid to religious mission
remains the governing understanding of the Establishment Clause as
applied to public benefits inuring to religious schools. The
governing opinions on the subject in the 35 years since
Allen have never challenged this principle. The
878
cases have, however, recognized that in actual Establishment
Clause litigation over school aid legislation, there is no pure aid
to religion and no purely secular welfare benefit; the effects of
the laws fall somewhere in between, with the judicial task being to
make a realistic allocation between the two possibilities. The
Court's decisions demonstrate its repeated attempts to isolate
considerations relevant in classifying particular benefits as
between those that do not discernibly support or threaten support
of a school's religious mission, and those that cross or threaten
to cross the line into support for religion.
II A
The most deceptively familiar of those considerations is
"neutrality," the presence or absence of which, in some sense, we
have addressed from the moment of
Everson itself. I say
"some sense," for we have used the term in at least three ways in
our cases, and an understanding of the term's evolution will help
to explain the concept as it is understood today, as well as the
limits of its significance in Establishment Clause analysis.
"Neutrality" has been employed as a term to describe the requisite
state of government equipoise between the forbidden encouragement
and discouragement of religion; to characterize a benefit or aid as
secular; and to indicate evenhandedness in distributing it.
As already mentioned, the Court first referred to neutrality in
Everson, simply stating that government is required "to be a
neutral" among religions and between religion and nonreligion. 330
U. S., at 18. Although "neutral" may have carried a hint of
inaction when we indicated that the First Amendment "does not
require the state to be [the] adversary" of religious believers,
ibid., or to cut off general government services from
religious organizations,
Everson provided no explicit
definition of the term or further indication of what the government
was required to do or not do to be
879
"neutral" toward religion. In practical terms, "neutral" in
Everson was simply a term for government in its required
median position between aiding and handicapping religion. The
second major case on aid to religious schools,
Allen, used
"neutrality" to describe an adequate state of balance between
government as ally and as adversary to religion, see 392 U. S., at
242 (discussing line between "state neutrality to religion and
state support of religion"). The term was not further defined, and
a few subsequent school cases used "neutrality" simply to designate
the required relationship to religion, without explaining how to
attain it. See,
e. g., Til
ton v.
Richardson, 403 U. S. 672, 677 (1971)
(describing cases that "see[k] to define the boundaries of the
neutral area between [the Religion Clauses] within which the
legislature may legitimately act");
Roemer v.
Board of
Public Works of Md., 426 U. S. 736, 747 (1976)
(plurality opinion of Blackmun, J.) ("Neutrality is what is
required. The State must confine itself to secular objectives, and
neither advance nor impede religious activity. Of course, that
principle is more easily stated than applied"); see also
Committee for Public Ed. & Religious Liberty v.
Nyquist, 413
U. S. 756, 782 (1973) (describing "neutral posture" toward
religion);
Roemer, supra, at 745-746 (opinion of Blackmun,
J.) ("The Court has enforced a scrupulous neutrality by the State,
as among religions, and also as between religious and other
activities"); cf.
Wolman v.
Walter, 433 U. S. 229, 254 (1977)
(quoting
Lemon and noting difficulty of religious teachers'
remaining "'religiously neutral' ").
The Court began to employ "neutrality" in a sense different from
equipoise, however, as it explicated the distinction between
"religious" and "secular" benefits to religious schools, the latter
being in some circumstances permissible. See
infra, at
884-899 (discussing considerations). Even though both
Everson and
Allen had anticipated some such
distinction, neither case had used the term "neutral" in this way.
In
Everson, Justice Black indicated that providing
880
police, fire, and similar government services to religious
institutions was permissible, in part because they were "so
separate and so indisputably marked off from the religious
function." 330 U. S., at 18.
Allen similarly focused on the
fact that the textbooks lent out were "secular" and approved by
secular authorities, 392 U. S., at 245, and assumed that the
secular textbooks and the secular elements of education they
supported were not so intertwined with religious instruction as "in
fact [to be] instrumental in the teaching of religion,"
id.,
at 248. Such was the Court's premise in
Lemon for shifting
the use of the word "neutral" from labeling the required position
of the government to describing a benefit that was nonreligious. We
spoke of "[o]ur decisions from
Everson to
Allen [as]
permitt[ing] the States to provide church-related schools with
secular, neutral, or nonideological services, facilities, or
materials," 403 U. S., at 616, and thereafter, we regularly used
"neutral" in this second sense of "secular" or "nonreligious." See,
e. g., Tilton, supra, at 687-688 (characterizing subsidized
teachers in
Lemon as "not necessarily religiously neutral,"
but buildings as "religiously neutral");
Meek v.
Pittenger, 421
U. S. 349, 365-366 (1975) (describing instructional materials
as "'secular, nonideological and neutral''' and "wholly neutral");
id., at 372 (describing auxiliary services as "religiously
neutral");
Roemer, supra, at 751 (opinion of Blackmun, J.)
(describing
Tilton's approved buildings as "neutral or
nonideological in nature"); 426 U. S., at 754 (describing
Meek's speech and hearing services as "neutral and
nonideological");
Zobrest v.
Catalina Foothills School
Dist., 509 U. S.
1, 10 (1993) (discussing translator as "neutral service");
Agostini v.
Felton, 521 U. S. 203, 232 (1997)
(discussing need to assess whether nature of aid was "neutral and
nonideological"); cf.
Levitt v.
Committee for Public
Ed. &
Religious Liberty, 413 U. S. 472, 478 (1973)
(noting that District Court approved testing cost reimbursement as
payment for services that were "'secular, neutral, or
nonideological''' in character, citing
Lemon, 403 U. S.,
at
881
616); Wolman, supra, at 242 (quoting
Lemon, supra,
at 616 (describing permitted services aid as "secular, neutral, or
nonideological") ).
The shift from equipoise to secular was not, however, our last
redefinition, for the Court again transformed the sense of
"neutrality" in the 1980's. Reexamining and reinterpreting
Everson and
Allen, we began to use the word "neutral"
to mean "evenhanded," in the sense of allocating aid on some common
basis to religious and secular recipients. Again, neither
Everson nor
Allen explicitly used "neutral" in this
manner, but just as the label for equipoise had lent itself to
referring to the secular characteristic of what a government might
provide, it was readily adaptable to referring to the generality of
government services, as in
Everson's paradigms, to which
permissible benefits were compared.
The increased attention to a notion of evenhanded distribution
was evident in
Nyquist, where the Court distinguished the
program under consideration from the government services approved
in
Allen and
Everson, in part because "the class of
beneficiaries [in
Everson and
Allen] included
all schoolchildren, those in public as well as those in
private schools." 413 U. S., at 782, n. 38.
Nyquist then
reserved the question whether "some form of public assistance ...
made available generally without regard to the
sectarian-nonsectarian, or public-nonpublic nature of the
institution benefitted" would be permissible.
Id., at 783,
n. 38 (citations omitted). Subsequent cases continued the focus on
the "generality" of the approved government services as an
important characteristic.
Meek, for example, characterized
Everson and
Allen as approving "a general program" to
pay bus fares and to lend school books, respectively, 421 U. S., at
360;
id., at 360, n. 8 (approving two similar "general
program[s]" in New York and Pennsylvania), and
Wolman upheld
diagnostic services described as "'general welfare services for
children,'" 433 U. S., at 243 (quoting
Meek, supra, at 371,
n. 21).
882
Justice Blackmun, writing in
Roemer, first called such a
"general" or evenhanded program "neutral," in speaking of "facial
neutrality" as a relevant consideration in determining whether
there was an Establishment Clause violation. "[R]eligious
institutions need not be quarantined from public benefits that are
neutrally available to all." 426 U. S., at 746-747; see also
id., at 746 (discussing buses in
Everson and school
books in
Allen as examples of "neutrally available" aid). In
Mueller v.
Allen, 463 U. S. 388 (1983), the
Court adopted the redefinition of neutrality as evenhandedness,
citing
Nyquist, 413 U. S., at 782, n. 38, and alluding to
our discussion of equal access in
Widmar v.
Vincent,
454 U. S. 263
(1981). The Court upheld a system of tax deductions for sectarian
educational expenses, in part because such a "facially neutral
law," 463 U. S., at 401, made the deduction available for
"all parents, including those whose children attend public
schools and those whose children attend nonsectarian private
schools or sectarian private schools,"
id., at 397.
Subsequent cases carried the point forward. See,
e. g.,
Witters v.
Washington Dept. of Servs. for Blind,
474 U. S. 481,
487 (1986) (quoting
Nyquist and characterizing program as
making aid "available generally");
Zobrest, supra, at 8-9
(discussing "government programs that neutrally provide benefits to
a broad class of citizens defined without reference to religion"
and citing
Mueller and
Witters); Agostini, supra, at
231 (discussing aid allocated on the basis of "neutral, secular
criteria that neither favor nor disfavor religion, ... made
available to both religious and secular beneficiaries on a
nondiscriminatory basis"); see also
Rosenberger, 515 U. S.,
at 839 ("[T]he guarantee of neutrality is respected, not offended,
when the government, following neutral criteria and evenhanded
policies, extends benefits to recipients whose ideologies and
viewpoints, including religious ones, are broad and diverse").
In sum, "neutrality" originally entered this field of
jurisprudence as a conclusory term, a label for the required
rela-
883
tionship between the government and religion as a state of
equipoise between government as ally and government as adversary.
Reexamining
Everson's paradigm cases to derive a
prescriptive guideline, we first determined that "neutral" aid was
secular, nonideological, or unrelated to religious education. Our
subsequent reexamination of
Everson and
Allen,
beginning in
Nyquist and culminating in
Mueller and
most recently in
Agostini, recast neutrality as a concept of
"evenhandedness."
There is, of course, good reason for considering the generality
of aid and the evenhandedness of its distribution in making close
calls between benefits that in purpose or effect support a school's
religious mission and those that do not. This is just what
Everson did. Even when the disputed practice falls short of
Everson's paradigms, the breadth of evenhanded distribution
is one pointer toward the law's purpose, since on the face of it
aid distributed generally and without a religious criterion is less
likely to be meant to aid religion than a benefit going only to
religious institutions or people. And, depending on the breadth of
distribution, looking to evenhandedness is a way of asking whether
a benefit can reasonably be seen to aid religion in fact; we do not
regard the postal system as aiding religion, even though parochial
schools get mail. Given the legitimacy of considering
evenhandedness, then, there is no reason to avoid the term
"neutrality" to refer to it. But one crucial point must be borne in
mind.
In the days when "neutral" was used in
Everson's sense of
equipoise, neutrality was tantamount to constitutionality; the term
was conclusory, but when it applied it meant that the government's
position was constitutional under the Establishment Clause. This is
not so at all, however, under the most recent use of "neutrality"
to refer to generality or evenhandedness of distribution. This kind
of neutrality is relevant in judging whether a benefit scheme so
characterized should be seen as aiding a sectarian school's
religious
884
mission, but this neutrality is not alone sufficient to qualify
the aid as constitutional. It is to be considered only along with
other characteristics of aid, its administration, its recipients,
or its potential that have been emphasized over the years as
indicators of just how religious the intent and effect of a given
aid scheme really is. See,
e. g., Tilton, 403 U. S., at
677-678 (opinion of Burger, C. J.) (acknowledging "no single
constitutional caliper");
Meek, 421 U. S., at 358-359
(noting considerations as guidelines only and discussing them as a
matter of degree);
School Dist. of Grand Rapids v.
Ball, 473 U.
S. 373, 383 (1985) (quoting
Meek), overruled in part by
Agostini, 521 U. S., at 203;
Board of Ed. of Kiryas Joel
Village School Dist. v.
Grumet, 512 U. S. 687, 720 (1994)
(opinion of O'CONNOR, J.) ("Experience proves that the
Establishment Clause, like the Free Speech Clause, cannot easily be
reduced to a single test");
Rosenberger, 515 U. S., at
847-849 (O'CONNOR, J., concurring) (discussing need for
linedrawing);
id., at 852 (noting lack of a single "Grand
Unified Theory" for Establishment Clause and citing
Kiryas
Joel); cf.
Agostini, supra, at 232-233 (examining a
variety of factors). Thus, the basic principle of establishment
scrutiny of aid remains the principle as stated in
Everson,
that there may be no public aid to religion or support for the
religious mission of any institution.
B
The insufficiency of evenhandedness neutrality as a standalone
criterion of constitutional intent or effect has been clear from
the beginning of our interpretative efforts, for an obvious reason.
Evenhandedness in distributing a benefit approaches the equivalence
of constitutionality in this area only when the term refers to such
universality of distribution that it makes no sense to think of the
benefit as going to any discrete group. Conversely, when
evenhandedness refers to distribution to limited groups within
society, like groups of schools or schoolchildren, it does make
sense to regard the benefit as aid to the recipients. See,
e.
g., Everson, 330 U. S.,
885
at 16 (discussing aid that approaches the "verge" of forbidden
territory);
Lemon, 403 U. S., at 612 ("[W]e can only dimly
perceive the lines of demarcation in this extraordinarily sensitive
area of constitutional law");
Nyquist, 413 U. S., at 760761
(noting the "most perplexing questions" presented in this area and
acknowledging" 'entangl[ing] precedents' ");
Mueller, 463 U.
S., at 393 (quoting
Lemon); Witters, 474 U. S., at 485
(quoting
Lemon).
Hence, if we looked no further than evenhandedness, and failed
to ask what activities the aid might support, or in fact did
support, religious schools could be blessed with government funding
as massive as expenditures made for the benefit of their public
school counterparts, and religious missions would thrive on public
money. This is why the consideration of less than universal
neutrality has never been recognized as dispositive and has always
been teamed with attention to other facts bearing on the
substantive prohibition of support for a school's religious
objective.
At least three main lines of enquiry addressed particularly to
school aid have emerged to complement evenhandedness neutrality.
First, we have noted that two types of aid recipients heighten
Establishment Clause concern: pervasively religious schools and
primary and secondary religious schools. Second, we have identified
two important characteristics of the method of distributing aid:
directness or indirectness of distribution and distribution by
genuinely independent choice. Third, we have found relevance in at
least five characteristics of the aid itself: its religious
content; its cash form; its divertibility or actually diversion to
religious support; its supplantation of traditional items of
religious school expense; and its substantiality.
1
Two types of school aid recipients have raised special concern.
First, we have recognized the fact that the overriding religious
mission of certain schools, those sometimes called
886
"pervasively sectarian," is not confined to a discrete element
of the curriculum,
Everson, 330 U. S., at 22-24 (Jackson,
J., dissenting);
id., at 45-47 (Rutledge, J., dissenting),
but permeates their teaching.6
Walz v.
Tax Comm'n of City
of New York, 397
U. S. 664, 671 (1970);
Lemon, supra, at 636-637 ("A
school which operates to commingle religion with other instruction
plainly cannot completely secularize its instruction. Parochial
schools, in large measure, do not accept the assumption that
secular subjects should be unrelated to religious teaching"); see
also
Bowen v.
Kendrick, 487 U. S. 589, 621-622
(1988) (discussing pervasively sectarian private schools). Based on
record evidence and long experience, we have concluded that
religious teaching in such schools is at the core of the
instructors' individual and personal obligations, cf. Canon 803, §
2, Text & Commentary 568 ("It is necessary that the formation
and education given in a Catholic school be based upon the
principles of Catholic doctrine; teachers are to be outstanding for
their correct doctrine and integrity of life"), and that individual
religious teachers will teach religiously.7
Lemon, 403 U.
S., at 615-620;
id., at 635-
6 In fact, religious education in Roman Catholic schools is
defined as part of required religious practice; aiding it is thus
akin to aiding a church service. See 1983 Code of Canon Law, Canon
798, reprinted in The Code of Canon Law: A Text and Commentary 566
(1985) (hereinafter Text & Commentary) (directing parents to
entrust children to Roman Catholic schools or otherwise provide for
Roman Catholic education); Canon 800, § 2, Text & Commentary
567 (requiring the faithful to support establishment and
maintenance of Roman Catholic schools); Canons 802, 804, Text &
Commentary 567, 568 (requiring diocesan bishop to establish and
regulate schools "imparting an education imbued with the Christian
spirit").
7 Although the Court no longer assumes that public school
teachers assigned to religious schools for limited purposes will
teach religiously, see
Agostini v.
Felton, 521 U. S. 203, 223-228
(1997), we have never abandoned the presumption that religious
teachers will teach just that way.
Lemon v.
Kurtzman,
403 U. S. 602,
615-620 (1971);
id., at 635-641 (Douglas, J., concurring);
Levitt v.
Committee for Public Ed. &
Religious
Liberty, 413 U. S. 472, 480 (1973);
Meek v.
Pittenger, 421
U. S. 349, 369-371 (1975);
Wol-
887
641 (Douglas, J., concurring);
Levitt, 413 U. S., at 480;
Meek, 421 U. S., at 369-371;
Wolman, 433 U. S., at
249-250 (discussing nonseverability of religious and secular
education);
Ball, 473 U. S., at 399-400 (O'CONNOR, J.,
concurring in judgment in part and dissenting in part), overruled
in part by
Agostini, 521 U. S., at 236. As religious
teaching cannot be separated from secular education in such schools
or by such teachers, we have concluded that direct government
subsidies to such schools are prohibited because they will
inevitably and impermissibly support religious indoctrination.
Zobrest, 509 U. S., at 12 (discussing
Meek and
Ball).
Second, we have expressed special concern about aid to primary
and secondary religious schools.
Tilton, 403 U. S., at
685-686. On the one hand, we have understood how the youth of the
students in such schools makes them highly susceptible to religious
indoctrination.
Lemon, supra, at 616 ("This process of
inculcating religious doctrine is, of course, enhanced by the
impressionable age of the pupils, in primary schools
particularly"). On the other, we have recognized that the religious
element in the education offered in most sectarian primary and
secondary schools is far more intertwined with the secular than in
university teaching, where the natural and academic skepticism of
most older students may separate the two, see
Tilton, supra,
at 686-689;
Roemer, 426 U. S., at 750. Thus, government
benefits accruing to these pervasively religious primary and
secondary schools raise special dangers of diversion into support
for the religious indoctrination of children and the involvement of
government in religious training and practice.
man v.
Walter, 433 U. S. 229, 249-250
(1977);
School Dist. of Grand Rapids v.
Ball,
473 U. S. 373,
399-400 (1985) (O'CONNOR, J., concurring in judgment in part and
dissenting in part), overruled in part by
Agostini, supra,
at 236. Cf.
NLRB v.
Catholic Bishop of Chicago,
440 U. S. 490,
504 (1979) ("The church-teacher relationship in a church-operated
school differs from the employment relationship in a public or
other nonreligious school").
888
2
We have also evaluated the portent of support to an
organization's religious mission that may be inherent in the method
by which aid is granted, finding pertinence in at least two
characteristics of distribution. First, we have asked whether aid
is direct or indirect, observing distinctions between government
schemes with individual beneficiaries and those whose beneficiaries
in the first instance might be religious schools.
Everson,
supra, at 18 (bus fare supports parents and not schools);
Allen, 392 U. S., 243-244, and n. 6 (textbooks go to benefit
children and parents, not schools);
Lemon, supra, at 621
(invalidating direct aid to schools);
Levitt, supra, at 480,
482 (invalidating direct testing aid to schools);
Witters,
474 U. S., at 487-488 (evaluating whether aid was a direct subsidy
to schools). Direct aid obviously raises greater risks, although
recent cases have discounted this risk factor, looking to other
features of the distribution mechanism.
Agostini, supra, at
225-226.8
8 In
Agostini, the Court indicated that "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," 521 U. S., at 225, and cited
Witters v.
Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), and
Zobrest v.
Catalina Foothills School Dist., 509 U. S. 1 (1993).
However,
Agostini did not rely on this dictum, instead
clearly stating that "[w]hile 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.' In fact, they are not. No Title I funds
ever reach the coffers of religious schools, and Title I services
may not be provided to religious schools on a schoolwide basis."
521 U. S., at 228-229 (citations omitted). Until today, this Court
has never permitted aid to go directly to schools on a schoolwide
basis.
The plurality misreads our precedent in suggesting that we have
abandoned directness of distribution as a relevant consideration.
See
ante, at 815-818. In
Wolman, we stated that
nominally describing aid as to students would not bar a court from
finding that it actually provided a subsidy to a school, 433 U. S.,
at 250, but we did not establish that a program giving "direct" aid
to schools was therefore permissible. In
Witters, we made
the focus of
Wolman clear, continuing to examine aid to
determine
889
Second, we have distinguished between indirect aid that reaches
religious schools only incidentally as a result of numerous
individual choices and aid that is in reality directed to religious
schools by the government or in practical terms selected by
religious schools themselves.
Mueller, 463 U. S., at 399;
Witters, supra, at 488;
Zobrest, supra, at 10. In
these cases, we have declared the constitutionality of programs
providing aid directly to parents or students as tax deductions or
scholarship money, where such aid may pay for education at some
sectarian institutions,
Mueller, supra, at
399;
Witters, 474 U. S., at 488, but only as the result of
"genuinely independent and private choices of aid recipients,"
id., at 487. We distinguished this path of aid from the
route in
Ball and
Wolman, where the opinions
indicated that "[w]here ... no meaningful distinction can be made
between aid to the student and aid to the school, the concept of a
loan to individuals is a transparent fiction." 474 U. S., at 487,
n. 4 (citations and internal quotation marks omitted).9
3
In addition to the character of the school to which the benefit
accrues, and its path from government to school, a number of
features of the aid itself have figured in the classifica-
if it was a "direct subsidy" to a school, 474 U. S., at 487, and
distinguishing the aid at issue from impermissible aid in
Ball and
Wolman precisely because the designation of
the student as recipient in those cases was only nominal. 474 U.
S., at 487, n. 4. Our subsequent cases have continued to ask
whether government aid programs constituted impermissible "direct
subsidies" to religious schools even where they are directed by
individual choice.
Zobrest, supra, at 11-13;
Mueller
v.
Allen, 463
U. S. 388, 399
(1983); Agostini, supra, at 226.
9We have also permitted the government to supply students with
public-employee translators,
Zobrest, supra, at 10, and
public-employee special education teachers,
Agostini, supra,
at 226, 228, who directly provided them with government services in
whatever schools those specific students attended, public or
nonpublic. I have already noted
Agostini's limitations. See
n. 8,
supra.
890
tions we have made. First, we have barred aid with actual
religious content, which would obviously run afoul of the ban on
the government's participation in religion,
Everson, 330 U.
S., at 16;
Walz, 397 U. S., at 668; cf.
Lemon, 403 U.
S., at 617 (discussing variable ideological and religious character
of religious teachers compared to fixed content of books). In cases
where we have permitted aid, we have regularly characterized it as
"neutral" in the sense (noted
supra, at 879881) of being
without religious content. See,
e. g., Tilton, 403 U. S., at
688 (characterizing buildings as "religiously neutral");
Zobrest, 509 U. S., at 10 (describing translator as "neutral
service");
Agostini, 521 U. S., at 232 (discussing need to
assess whether nature of aid was "neutral and nonideological"). See
also
ante, at 820 (plurality opinion) (barring aid with
religious content).10
Second, we have long held government aid invalid when
circumstances would allow its diversion to religious education. The
risk of diversion is obviously high when aid in the form of
government funds makes its way into the coffers of religious
organizations, and so from the start we have understood the
Constitution to bar outright money grants of aid to religion.ll See
Everson, 330 U. S., at 16 ("[The State]
10 I agree with the plurality that the Establishment Clause
absolutely prohibits the government from providing aid with clear
religious content to religious, or for that matter nonreligious,
schools.
Ante, at 822-825. The plurality, however, misreads
our precedent as focusing only on affirmatively religious content.
At the very least, a building, for example, has no such content,
but we have squarely required the government to ensure that no
publicly financed building be diverted to religious use.
Tilton v.
Richardson, 403 U. S. 672, 681-684
(1971). See also
Bowen v.
Kendrick, 487 U. S. 589, 623 (1988)
(O'CONNOR, J., concurring)
("[Ainy use of public funds to
promote religious doctrines violates the Establishment
Clause").
11 We have similarly noted that paying salaries of parochial
school teachers creates too much of a risk that such support will
aid the teaching of religion, striking down such programs because
of the need for pervasive monitoring that would be required. See
Lemon, 403 U. S., at 619 ("We do not assume, however, that
parochial school teachers will be unsuccessful
891
cannot consistently with the 'establishment of religion' clause
of the First Amendment contribute tax-raised funds to the support
of an institution which teaches the tenets and faith of any
church");
id., at 18 ("The State contributes no money to the
schools. It does not support them");
Allen, 392 U. S., at
243-244 ("[N]o funds or books are furnished to parochial schools,
and the financial benefit is to parents and children, not
schools");
Walz, supra, at 675 ("Obviously a direct money
subsidy would be a relationship pregnant with involvement and, as
with most governmental grant programs, could encompass sustained
and detailed administrative relationships for enforcement of
statutory or administrative standards");
Lemon, supra, at
612 (identifying "three main evils" against which Establishment
Clause was to protect as "sponsorship, financial support, and
active involvement of the sovereign in religious activity," citing
Walz); 403 U. S., at 621 (distinguishing direct financial
aid program from
Everson and
Allen and noting
problems with required future surveillance);
Nyquist, 413 U.
S., at 762, 774 (striking down "direct money grants" for
maintaining buildings because there was no attempt to restrict
payments to those expenditures related exclusively to secular
purposes);
Levitt, 413 U. S., at 480, 482 (striking down
"direct money grant" for testing expenses); 12
Hunt v.
in their attempts to segregate their religious beliefs from
their secular educational responsibilities. But the potential for
impermissible fostering of religion is present. The [state
legislature] has not, and could not, provide state aid on the basis
of a mere assumption that secular teachers under religious
discipline can avoid conflicts. The State must be certain, given
the Religion Clauses, that subsidized teachers do not inculcate
religion .... A comprehensive, discriminating, and continuing state
surveillance will inevitably be required to ensure that these
restrictions are obeyed and the First Amendment otherwise
respected").
12 It is true that we called the importance of the cash payment
consideration into question in
Committee for Public Ed. and
Religious Liberty v.
Regan, 444 U. S. 646, 657-659
(1980) (approving program providing religious school with "direct
cash reimbursement" for expenses of standardized testing). In that
case, we found the other safeguards against the diversion of such
funds to religious uses sufficient to allow such aid: "A
892
McNair, 413
U. S. 734, 745, n. 7 (1973) (noting approved aid is "no
expenditure of public funds, either by grant or loan");
Wolman, 433 U. S., at 239, and n. 7 (noting that "statute
does not authorize any payment to nonpublic school personnel for
the costs of administering the tests");
Agostini, 521 U. S.,
at 228-229 (emphasizing that approved services are not "distributed
'directly to the religious schools.' ... No Title I funds ever
reach the coffers of religious schools, and Title I services may
not be provided to religious schools on a schoolwide basis"
(citations omitted));
Bowen, 487 U. S., at 614-615;
Rosenberger, 515 U. S., at 842 (noting that "we have
recognized special Establishment Clause dangers where the
government makes direct money payments to sectarian institutions");
cf.
Lemon, 403 U. S., at 619-620 (noting that safeguards and
accounting inspections required to prevent government funds from
supporting religious education will cause impermissible
entanglement);
Roemer, 426 U. S., at 753-757 (approving
segregated funds after finding recipients not pervasively
religious);
Ball, 473 U. S., at 392-393 (noting that "[w]ith
but one exception, our subsequent cases have struck down attempts
by States to make payments out of
contrary view would insist on drawing a constitutional
distinction between paying the nonpublic school to do the grading
and paying state employees or some independent service to perform
that task, even though the grading function is the same regardless
of who performs it and would not have the primary effect of aiding
religion whether or not performed by nonpublie school personnel."
Id., at 658. Aside from this isolated circumstance, where we
found ironclad guarantees of nondiversion, we have never relaxed
our prohibition on direct cash aid to pervasively religious
schools, and have in fact continued to acknowledge the concern. See
Agostini, 521 U. S., at 228-229; cf.
Rosenberger, 515
U. S., at 842.
The plurality concedes this basic point. See
ante, at
818-819. Given this, I find any suggestion that this prohibition
has been undermined by
Mueller or
Witters without
foundation. See
ante, at 819-820, n. 8. Those cases involved
entirely different types of aid, namely, tax deductions and
individual scholarship aid for university education, see also n.
16,
infra, and were followed by
Rosenberger and
Agostini, which continued to support this absolute
restriction.
893
public tax dollars directly to primary or secondary religious
educational institutions"), overruled in part by
Agostini,
supra, at 236;
Witters, 474 U. S., at 487 ("It is
equally well-settled ... that the State may not grant aid to a
religious school, whether cash or in kind, where the effect of the
aid is that of a direct subsidy to the religious school" (internal
quotation marks and citations omitted));
Rosenberger, supra,
at 851-852 (O'CONNOR, J., concurring) (noting that student fee was
not a tax).
Divertibility is not, of course, a characteristic of cash alone,
and when examining provisions for ostensibly secular supplies we
have considered their susceptibility to the service of religious
ends.13 In upholding a scheme to provide students with secular
textbooks, we emphasized that "each book loaned must be approved by
the public school authorities; only secular books may receive
approval."
Allen, 392 U. S., at 244-245; see also
Meek, 421 U. S., at 361-362 (opinion of Stewart, J.);
Wolman, supra, at 237-238. By the same token, we could not
sustain provisions for instructional materials adaptable to
teaching a variety of subjects.14
Meek, supra, at 363;
Wolman, supra, at 249-250. While the textbooks had a known
and fixed secular content not readily di-
13 I reject the plurality's argument that divertibility is a
boundless principle.
Ante, at 824-825. Our long experience
of evaluating this consideration demonstrates its practical limits.
See
infra this page and 894-895. Moreover, the Establishment
Clause charges us with making such enquiries, regardless of their
difficulty. See
supra, at 875-878, 884-885. Finally, the
First Amendment's rule permitting only aid with fixed secular
content seems no more difficult to apply than the plurality's rule
prohibiting only aid with fixed religious content.
14 Contrary to the plurality's apparent belief,
Lamb's
Chapel v.
Center Moriches Union Free School Dist.,
508 U. S. 384
(1993), sheds no light on the question of divertibility and school
aid.
Ante, at 822, n. 9. The Court in that case clearly
distinguished the question of afterschool access to public
facilities from anything resembling the school aid cases: "The
showing of this film series would not have been during school
hours, would not have been sponsored by the school, and would have
been open to the public, not just to church members." 508 U. S., at
395.
894
vertible to religious teaching purposes, the adaptable materials
did not.15 So, too, we explained the permissibility of busing on
public routes to schools but not busing for field trips designed by
religious authorities specifically because the latter trips were
components of teaching in a pervasively religious school. Compare
Everson, 330 U. S., at 17 (noting wholly separate and
secular nature of public bus fare to schools), with
Wolman,
433 U. S., at 254 ("The field trips are an integral part of the
educational experience, and where the teacher works within and for
a sectarian institution, an unacceptable risk of fostering of
religion is an inevitable byproduct" (citation omitted)). We
likewise were able to uphold underwriting the expenses of standard
state testing in religious schools while being forced to strike
down aid for testing designed by the school officials, because the
latter tests could be used to reinforce religious teaching. Compare
id., at 240 ("[T]he State provides both the schools and the
school district with the means of ensuring that the minimum
standards are met. The nonpublic school does not control the
content of the test or its result. This serves to prevent the use
of the test as part of religious teaching, and thus avoids that
kind of direct aid to religion found present in
Levitt");
Committee for Public Ed. and Religious Liberty v.
Regan,
444 U. S. 646,
661-662 (1980) (same), with
Levitt, 413 U. S., at 480 ("We
cannot ignore the substantial risk that these examinations,
prepared by teachers under the authority of religious institutions,
will be drafted with an eye, unconsciously or otherwise, to
inculcate students in the religious precepts of the sponsoring
church").
15 In
Lemon, we also specifically examined the risk that
a government program that paid religious teachers would support
religious education; the teachers posed the risk of being unable to
separate secular from religious education. Although we invalidated
the program on entanglement grounds, we suggested that the
monitoring the State had established in that case was actually
required to eliminate the risk of diversion. See 403 U. S., at 619;
see also n. 11,
supra.
895
With the same point in mind, we held that buildings constructed
with government grants to universities with religious affiliation
must be barred from religious use indefinitely to prevent the
diversion of government funds to religious objectives.
Tilton, 403 U. S., at 683 (plurality opinion) ("If, at the
end of 20 years, the building is, for example, converted into a
chapel or otherwise used to promote religious interests, the
original federal grant will in part have the effect of advancing
religion. To this extent the Act therefore trespasses on the
Religion Clauses"); see also
Hunt, 413 U. S., at 743-744. We
were accordingly constrained to strike down aid for repairing
buildings of nonpublie schools because they could be used for
religious education.
Nyquist, 413 U. S., at 776-777.
Divertibility was, again, the issue in an order remanding an
as-applied challenge to a grant supporting counseling on teenage
sexuality for findings that the aid had not been used to support
religious education.
Bowen, 487 U. S., at 621; see also
id., at 623 (O'CONNOR, J., concurring). And the most recent
example of attention to the significance of divertibility occurred
in our explanation that public school teachers could be assigned to
provide limited instruction in religious schools in
Agostini, 521 U. S., at 223-227, a majority of the Court
rejecting the factual assumption that public school teachers could
be readily lured into providing religious instruction.16
16 The plurality is mistaken in its reading of
Zobrest.
See
ante, at 820
821. Zobrest does not reject the
principle of divertibility. There the government provided only a
translator who was not considered divertible because he did not add
to or subtract from the religious message. The Court approved the
translator as it would approve a hearing aid, health services,
diagnostics, and tests. See
Zobrest, 509 U. S., at 13, and
n. 10. Cf.
Bradfield v.
Roberts, 175 U. S. 291, 299-300
(1899);
Wolman, 433 U. S., at 244.
Zobrest thus can
be thought of as akin to our approval of diagnostic services in
Wolman, supra, at 244, which we considered to have "little
or no educational content[,] not [to be] closely associated with
the educational mission of the nonpublic school," and not to pose
"an impermissible
896
Third, our cases have recognized the distinction, adopted by
statute in the Chapter 2 legislation, between aid that merely
supplements and aid that supplants expenditures for offerings at
religious schools, the latter being barred. Although we have never
adopted the position that any benefit that flows to a religious
school is impermissible because it frees up resources for the
school to engage in religious indoctrination,
Hunt, supra,
at 743, from our first decision holding it permissible to provide
textbooks for religious schools we have repeatedly explained the
unconstitutionality of aid that supplants an item of the school's
traditional expense. See,
e. g., Cochran v.
Louisiana Bd.
of Ed., 281 U. S.
370, 375 (1930) (noting that religious schools "are not the
beneficiaries of these appropriations. They obtain nothing from
them, nor are they relieved of a single obligation because of them"
(internal quotation marks omitted));
Everson, 330 U. S., at
18 (specifically noting that bus fare program did not support or
fund religious schools);
Allen, 392 U. S., at 244 (stating
that "the financial benefit [of providing the textbooks] is to
parents and children, not to schools" (footnote omitted));
id.,
risk of the fostering of ideological views." The fact that the
dissent saw things otherwise (as the plurality points out,
ante, at 821) is beside the point here.
Similarly, the plurality is mistaken in reading our holdings in
Mueller and
Witters, see
ante, at 821, to
undermine divertibility as a relevant principle. First, these cases
approved quite factually distinct types of aid;
Mueller
involving tax deductions, which have a quite separate history of
approval, see 463 U. S., at 396, and nn. 5, 6 (citing
Walz
v.
Tax Comm'n of City of New York, 397 U. S. 664 (1970)),
and
Witters involving scholarship money distributed to a
university, not a primary or secondary school, see
Tilton,
403 U. S., at 685-686, that was not significant enough as a whole
to support that institution,
Witters, 474 U. S., at 488.
Second, in neither case did the program at issue provide direct aid
on a schoolwide basis (as Chapter 2 does here); in both we found a
distinction based on the genuinely independent, private choices
which allocated such very different types of aid (tax deductions
and university scholarship money that did not amount to substantial
support of the university). See
Mueller, supra, at
399;
Witters, supra, at 488.
897
at 244, n. 6 (explicitly recognizing that "the record contains
no evidence that any of the private schools in appellants'
districts previously provided textbooks for their students");
Lemon, 403 U. S., at 656 (opinion of Brennan, J.) (noting no
aid to schools was involved in
Allen). We ignored this
prohibition only once, in
Regan, 444 U. S., at 646; see also
ante, at 16, n. 7, where reimbursement for budgeted expenses
of required testing was not struck down, but we then quickly
returned to the rule as a guideline for permissible aidP In
Zobrest, 509 U. S., at 12, the Court specifically
distinguished
Meek and
Ball by explaining that the
invalid programs in those cases "relieved sectarian schools of
costs they otherwise would have borne in educating their students."
In
Agostini, the Court made a point of noting that the
objects of the aid were "by law supplemental to the regular
curricula" and, citing
Zobrest, explained that the remedial
education services did not relieve the religious schools of costs
they would otherwise have borne. 521 U. S., at 228 (citing
Zobrest, supra, at 12). The Court explicitly stated that
the
17 Our departure from this principle in
Regan is not
easily explained, but it is an isolated holding surrounded by
otherwise unbroken adherence to the no-supplanting principle. Long
after
Regan we have continued to find the
supplement/supplant distinction, like the bar to substantial aid,
to be an important consideration. See
Zobrest, supra, at 12;
Agostini, 521 U. S., at 228; cf.
Witters, supra, at
487-488 (discussing rule against "direct subsidy"). The weight that
the plurality places on
Regan is thus too much for it to
bear. See
ante, at 815, n. 7. Moreover, the apparent object
of the
Regan Court's concern was vindicating the principle
that aid with fixed secular content was permissible, distinguishing
it from the divertible testing aid in
Levitt. Regan, 444 U.
S., at 661-662 (citing
Wolman, supra, at 263); cf.
Levitt, 413 U. S., at 480. The plurality provides no
explanation for our continued reference to the principle of
no-supplanting aid in subsequent cases, such as
Zobrest and
Agostini, which it finds trustworthy guides elsewhere in its
discussion of the First Amendment. See
ante, at
822-823,825,827,829-832. Nor does the plurality explain why it
places so much weight on
Regan's apparent departure from the
no-supplanting rule while it ignores
Regan's core reasoning
that the testing aid there was permissible because, in direct
contrast to
Levitt, the aid was not divertible.
898
services in question did not "supplant the remedial instruction
and guidance counseling already provided in New York City's
sectarian schools." 521 U. S., at 229.
Finally, we have recognized what is obvious (however imprecise),
in holding "substantial" amounts of aid to be unconstitutional
whether or not a plaintiff can show that it supplants a specific
item of expense a religious school would have borne.18 In
Meek, 421 U. S., at 366, we invalidated the loan of
instructional materials to religious schools because "faced with
the substantial amounts of direct support authorized by [the
program], it would simply ignore reality to attempt to separate
secular educational functions from the predominantly religious role
performed by many of Pennsylvania's church-related elementary and
secondary schools and then characterize [the program] as channeling
aid to the secular without providing direct aid to the sectarian."
Id., at 365. See
id., at 366 ("Substantial aid to the
educational function of such schools ... necessarily results in aid
to the sectarian school enterprise as a whole"); see also
Nyquist, 413 U. S., at 783;
Wolman, 433 U. S., at
250-251. In
Witters, 474 U. S., at 488, the Court asked
whether the aid in question was a direct subsidy to religious
schools and addressed the substantiality of the aid obliquely in
noting that "nothing in the record indicates that ... any
significant portion of the
18 I do not read the plurality to question the prohibition on
substantial aid. The plurality challenges any rule based on the
proportion of aid that a program provides to religious recipients,
citing
Witters and
Agostini. See
ante, at 812,
n. 6. I reject the plurality's reasoning. The plurality misreads
Witters; Justice Marshall, writing for the Court in
Witters, emphasized that only a small amount of aid was
provided to religious institutions, 474 U. S., at 488, and no
controlling majority rejected the importance of this fact. The
plurality also overreads
Agostini, supra, at 229, which
simply declined to adopt a rule based on proportionality. Moreover,
regardless of whether the proportion of aid actually provided to
religious schools is relevant, we have never questioned our holding
in
Meek that substantial aid to religious schools is
prohibited.
899
aid expended under the Washington program as a whole will end up
flowing to religious education." In
Zobrest, supra, at 12,
the Court spoke of the substantiality test in
Meek, noting
that "[d]isabled children, not sectarian schools, are the primary
beneficiaries of the [Individuals with Disabilities Act (IDEA)]; to
the extent sectarian schools benefit at all from the IDEA, they are
only incidental beneficiaries."
C
This stretch of doctrinal history leaves one point clear beyond
peradventure: together with James Madison we have consistently
understood the Establishment Clause to impose a substantive
prohibition against public aid to religion and, hence, to the
religious mission of sectarian schools. Evenhandedness neutrality
is one, nondispositive pointer toward an intent and (to a lesser
degree) probable effect on the permissible side of the line between
forbidden aid and general public welfare benefit. Other pointers
are facts about the religious mission and education level of
benefited schools and their pupils, the pathway by which a benefit
travels from public treasury to educational effect, the form and
content of the aid, its adaptability to religious ends, and its
effects on school budgets. The object of all enquiries into such
matters is the same whatever the particular circumstances: is the
benefit intended to aid in providing the religious element of the
education and is it likely to do so?
The substance of the law has thus not changed since
Everson. Emphasis on one sort of fact or another has varied
depending on the perceived utility of the enquiry, but all that has
been added is repeated explanation of relevant considerations,
confirming that our predecessors were right in their prophecies
that no simple test would emerge to allow easy application of the
establishment principle.
The plurality, however, would reject that lesson. The majority
misapplies it.
900
III A
The nub of the plurality's new position is this:
"[I]f the government, seeking to further some legitimate secular
purpose, offers aid on the same terms, without regard to religion,
to all who adequately further that purpose, then it is fair to say
that any aid going to a religious recipient only has the effect of
furthering that secular purpose. The government, in crafting such
an aid program, has had to conclude that a given level of aid is
necessary to further that purpose among secular recipients and has
provided no more than that same level to religious recipients."
Ante, at 810 (citation omitted).
As a break with consistent doctrine the plurality's new
criterion is unequaled in the history of Establishment Clause
interpretation. Simple on its face, it appears to take
evenhandedness neutrality and in practical terms promote it to a
single and sufficient test for the establishment constitutionality
of school aid. Even on its own terms, its errors are manifold, and
attention to at least three of its mistaken assumptions will show
the degree to which the plurality's proposal would replace the
principle of no aid with a formula for generous religious
support.
First, the plurality treats an external observer's attribution
of religious support to the government as the sole impermissible
effect of a government aid scheme. See,
e. g.,
ante, at 809 ("[N]o one would conclude that any
indoctrination that any particular recipient conducts has been done
at the behest of the government"). While perceived state
endorsement of religion is undoubtedly a relevant concern under the
Establishment Clause, see,
e. g., Allegheny County, 492 U.
S., at 592-594; see also
Capitol Square Review and Advisory
Bd. v.
Pinette, 515 U. S. 753, 772-774
(1995) (O'CONNOR, J., concurring in part and concurring in
901
judgment);
id., at 786-787 (SOUTER, J., concurring in
part and concurring in judgment), it is certainly not the only one.
Everson made this clear from the start: secret aid to
religion by the government is also barred. 330 U. S., at 16. State
aid not attributed to the government would still violate a
taxpayer's liberty of conscience, threaten to corrupt religion, and
generate disputes over aid. In any event, since the same-terms
feature of the scheme would, on the plurality's view, rule out the
attribution or perception of endorsement, adopting the plurality's
rule of facial evenhandedness would convert neutrality into a
dispositive criterion of establishment constitutionality and
eliminate the effects enquiry directed by
Allen, Lemon, and
other cases. Under the plurality's rule of neutrality, if a program
met the first part of the
Lemon enquiry, by declining to
define a program's recipients by religion, it would automatically
satisfy the second, in supposedly having no impermissible effect of
aiding religion.19
Second, the plurality apparently assumes as a fact that equal
amounts of aid to religious and nonreligious schools will have
exclusively secular and equal effects, on both external perception
and on incentives to attend different schools. See
ante, at
809-810, 813-814. But there is no reason to believe that this will
be the case; the effects of same-terms aid may not be confined to
the secular sphere at all. This is the reason that we have long
recognized that unrestricted aid to religious schools will support
religious teaching in ad-
19 Adopting the plurality's rule would permit practically any
government aid to religion so long as it could be supplied on terms
ostensibly comparable to the terms under which aid was provided to
nonreligious recipients. As a principle of constitutional
sufficiency, the manipulability of this rule is breathtaking. A
legislature would merely need to state a secular objective in order
to legalize massive aid to all religions, one religion, or even one
sect, to which its largess could be directed through the easy
exercise of crafting facially neutral terms under which to offer
aid favoring that religious group. Short of formally replacing the
Establishment Clause, a more dependable key to the public fisc or a
cleaner break with prior law would be difficult to imagine.
902
dition to secular education, a fact that would be true no matter
what the supposedly secular purpose of the law might be.
Third, the plurality assumes that per capita distribution rules
safeguard the same principles as independent, private choices. But
that is clearly not so. We approved university scholarships in
Witters because we found them close to giving a government
employee a paycheck and allowing him to spend it as he chose, but a
per capita aid program is a far cry from awarding scholarships to
individuals, one of whom makes an independent private choice. Not
the least of the significant differences between per capita aid and
aid individually determined and directed is the right and genuine
opportunity of the recipient to choose not to give the aid.20 To
hold otherwise would be to license the government to donate funds
to churches based on the number of their members, on the patent
fiction of independent private choice.
The plurality's mistaken assumptions explain and underscore its
sharp break with the Framers' understanding of establishment and
this Court's consistent interpretative course. Under the
plurality's regime, little would be left of the right of conscience
against compelled support for religion; the more massive the aid
the more potent would be the influence of the government on the
teaching mission; the more generous the support, the more divisive
would be the resentments of those resisting religious support, and
those religions without school systems ready to claim their fair
share.
B
The plurality's conception of evenhandedness does not, however,
control the case, whose disposition turns on the misapplication of
accepted categories of school aid analysis. The facts most
obviously relevant to the Chapter 2 scheme
20 Indeed, the opportunity for an individual to choose not to
have her religious school receive government aid is just what at
least one of the respondents seeks here. See Brief for Respondents
1, and n. 1.
903
in Jefferson Parish are those showing divertibility and actual
diversion in the circumstance of pervasively sectarian religious
schools. The type of aid, the structure of the program, and the
lack of effective safeguards clearly demonstrate the divertibility
of the aid. While little is known about its use, owing to the
anemic enforcement system in the parish, even the thin record
before us reveals that actual diversion occurred.
The aid that the government provided was highly susceptible to
unconstitutional use. Much of the equipment provided under Chapter
2 was not of the type provided for individual students, App. to
Pet. for Cert. 140a; App. 262a278a, but included "slide projectors,
movie projectors, overhead projectors, television sets, tape
recorders, projection screens, maps, globes, filmstrips, cassettes,
computers," and computer software and peripherals,
Helms v.
Cody, No. 85-5533, 1990 WL 36124 (ED La., Mar. 27, 1990);
App. to Pet. for Cert. 140a; App. 90a, 262a-278a, as well as
library books and materials,
id., at 56a, 126a, 280a-284a.
The videocassette players, overhead projectors, and other
instructional aids were of the sort that we have found can easily
be used by religious teachers for religious purposes.
Meek,
421 U. S., at 363;
Wolman, 433 U. S., at 249-250. The same
was true of the computers, which were as readily employable for
religious teaching as the other equipment, and presumably as immune
to any countervailing safeguard, App. 90a, 118a, 164a-165a.
Although library books, like textbooks, have fixed content,
religious teachers can assign secular library books for religious
critique, and books for libraries may be religious, as any divinity
school library would demonstrate. The sheer number and variety of
books that could be and were ordered gave ample opportunity for
such diversion.
The divertibility thus inherent in the forms of Chapter 2 aid
was enhanced by the structure of the program in Jefferson Parish.
Requests for specific items under Chapter 2 came not from secular
officials, cf.
Allen, 392 U. S., at 244-
904
245, but from officials of the religious schools (and even
parents of religious school pupils), see
ante, at 803
(noting that private religious schools submitted their orders to
the government for specific requested items); App. 156a-158a. The
sectarian schools decided what they wanted and often ordered the
supplies,
id., at 156a-159a, 171a-172a, to be forwarded
directly to themselves,
id., at 156a-159a. It was easy to
select whatever instructional materials and library books the
schools wanted, just as it was easy to employ computers for the
support of the religious content of the curriculum infused with
religious instruction.
The concern with divertibility thus predicated is underscored by
the fact that the religious schools in question here covered the
primary and secondary grades, the grades in which the sectarian
nature of instruction is characteristically the most pervasive, see
Lemon, 403 U. S., at 616; cf.
Tilton, 403 U. S., at
686-689, and in which pupils are the least critical of the schools'
religious objectives, see
Lemon, supra, at 616. No one,
indeed, disputes the trial judge's findings, based on a detailed
record, that the Roman Catholic schools,21 which made up the
majority of the private schools participating,22 were pervasively
sectarian,23 that
21 Litigation, discovery, and the opinions below focused almost
exclusively on the aid to the 34 Roman Catholic schools.
Consequently, I will confine my discussion to that information. Of
course, the same concerns would be raised by government aid to
religious schools of other faiths that a court found had similar
missions of religious education and religious teachers teaching
religiously.
22 The Jefferson Parish Chapter 2 program included 46 nonpublic
schools, of which 41 were religiously affiliated. Thirty-four of
these were Roman Catholic, seven others were religiously
affiliated, and five were not religiouslyaffiliated. App. to Pet.
for Cert. 143a-144a.
23 The trial judge found that the Roman Catholic schools in
question operate under the general supervision and authority of the
Archbishop of New Orleans and their parish pastors, and are located
next to parish churches and sometimes a rectory or convent.
Id., at 144a. The schools include religious symbols in their
classrooms, App. 75a, require attendance at daily religion classes,
id., at 76a, conduct sacramental preparation
905
their common objective and mission was to engage in religious
education,24 and that their teachers taught religiously,25 making
them precisely the kind of primary and
classes during the schoolday, require attendance at mass, and
provide extracurricular religious activities. At least some
exercise a religious preference in accepting students and in
charging tuition. App. to Pet. for Cert. 145a.
24 The District Court found that the mission of the Roman
Catholic schools is religious education based on the Archdiocese's
and the individual schools' published statements of philosophy. For
example, the St. Anthony School Handbook, cited by the District
Court, reads:
"Catholic education is intended to make men's faith become
living, conscious and active through the light of instruction. The
Catholic school is the unique setting within which this ideal can
be realized in the lives of the Catholic children and young
people.
"Only in such a school can they experience learning and living
fully integrated in the light of faith .... Here, too, instruction
in religious truth and values is an integral part of the school
program. It is not one more subject along side the rest, but
instead it is perceived and functions as the underlying reality in
which the student's experiences of learning and living achieve
their coherence and their deepest meaning."
Ibid.
The Handbook of Policies and Regulations for Elementary Schools
of the Archdiocese of New Orleans indicates that the operation of
the Roman Catholic schools is governed by canon law. It also lists
the major objectives of those schools as follows:
"To work closely with the home in educating children towards the
fullness of Christian life.
"To specifically teach Catholic principles and Christian
values."
Id., at 146a.
The mission statements and objectives outlined by the other
Roman Catholic schools also support the conclusion that these
institutions' primary objective is religious instruction. See also
App. 65a, 71a.
25 The Archdiocese's official policy calls for religious
preferences in hiring and the contracts of principals and teachers
in its schools contain a provision allowing for termination for
lifestyle contrary to the teachings of the Roman Catholic church.
App. to Pet. for Cert. 145a. One of the objectives of the handbook
is "[tJo encourage teachers to become committed Christians and to
develop professional competence."
Id., at 146a. Other record
evidence supports the conclusion that these religious
schoolteachers teach religiously. See,
e. g., App.
125a (deposition of president of sectarian high school) ("Our
teachers, whether they are religion teachers
906
secondary religious schools that raise the most serious
Establishment Clause concerns. See
Walz, 397 U. S., at 671;
Hunt, 413 U. S., at 743;
Lemon, supra, at 636-637.
The threat to Establishment Clause values was accordingly at its
highest in the circumstances of this case. Such precautionary
features as there were in the Jefferson Parish scheme were grossly
inadequate to counter the threat. To be sure, the disbursement of
the aid was subject to statutory admonitions against diversion,
see,
e. g., 20 U. S. C. §§ 7332, 8897, and was
supposedly subject to a variety of safeguards, see
ante, at
802-803, 832-834. But the provisions for onsite monitoring visits,
labeling of government property, and government oversight cannot be
accepted as sufficient in the face of record evidence that the
safeguard provisions proved to be empty phrases in Jefferson
Parish. Cf.
Agostini, 521 U. S., at 228-229;
Zobrest,
509 U. S., at 13 (accepting precautionary provisions in absence of
evidence of their uselessness) .
The plurality has already noted at length the ineffectiveness of
the government's monitoring program.
Ante, at 832-834; see
also App. ll1a ("A system to monitor nonpublic schools was often
not in operation and therefore the [local educational agency] did
not always know: (a) what was purchased or (b) how it was
utilized"). Monitors visited a nonpublic school only sporadically,
discussed the program with a single contact person, observed
nothing more than attempts at recordkeeping, and failed to inform
the teachers of the restrictions involved.
Id., at
154a-155a. Although Chapter 2 required labeling of government
property, it occurred haphazardly at best,
id., at 113a, and
the government's sole monitoring system for computer use amounted
to nothing more
or not, are certainly instructed that when issues come up in the
classroom that have a religious, moral, or value concept, that
their answers be consistent with the teachings of the Catholic
Church and that they respond in that way to the students, so that
there can be opportunities in other classes other than religion
where discussion of religio[n] could take place, yes, sir");
id., at 73a, 74a.
907
than questioning school officials and examining the location of
computers at the schools,
id., at 118a. No records of
software and computer use were kept, and no such recordkeeping was
even planned.
Id., at 118a, 164a-166a. State and local
officials in Jefferson Parish admitted that nothing prevented the
Chapter 2 computers from being used for religious instruction,
id., at 102a, 118a, 164a-166a, and although they knew of
methods of monitoring computer usage, such as locking the computer
functions,
id., at 165a-166a, they implemented no particular
policies, instituted no systems, and employed no technologies to
minimize the likelihood of diversion to religious uses,26
id., at 118a, 165a-166a. The watchdogs did require the
religious schools to give not so much as an assurance that they
would use Chapter 2 computers solely for secular purposes,
Helms v.
Picard, 151 F.3d
347, 368 (1998), amended,
165 F.3d
311 (CA5 1999); App. 94a-95a. Government officials
themselves admitted that there was no way to tell whether
instructional materials had been diverted,
id., at 118a,
139a, 144a-145a, and, as the plurality notes, the only screening
mechanism in the library book scheme was a review of titles by a
single government official,
ante, at 832-833, n. 15; see
App. 137a. The government did not even have a policy on the
consequences of noncompliance.
Id., at 145a.
The risk of immediate diversion of Chapter 2 benefits had its
complement in the risk of future diversion, against which the
Jefferson Parish program had absolutely no protection. By statute
all purchases with Chapter 2 aid were to remain the property of the
United States, 20 U. S. C. § 7372(c)(1), merely being "lent" to the
recipient nonpublic schools. In actuality, however, the record
indicates that nothing in the
26 The Government's reliance on U. S. Department of Education
Guidance for Title VI of the Elementary and Secondary Education Act
(Feb. 1999) is misplaced. See App. to Brief for Secretary of
Education 1a. It was not in place when discovery closed in this
matter, and merely highlights the reasons for a lack of evidence on
diversion or compliance.
908
Jefferson Parish program stood in the way of giving the Chapter
2 property outright to the religious schools when it became older.
Although old equipment remained the property of the local education
agency, a local government administrative body, one agency employee
testified that there was no set policy for dealing with old
computers, which were probably given outright to the religious
schools. App. 161a162a. The witness said that government-funded
instructional materials, too, were probably left with the religious
schools when they were old, and that it was unclear whether library
books were ever to be returned to the government.
Ibid.
Providing such governmental aid without effective safeguards
against future diversion itself offends the Establishment Clause,
Tilton, 403 U. S., at 682-684;
Nyquist, 413 U. S., at
776-777, and even without evidence of actual diversion, our cases
have repeatedly held that a "substantial risk" of it suffices to
invalidate a government aid program on establishment grounds. See,
e. g., Wolman, 433 U. S., at 254 (invalidating aid for
transportation on teacher-accompanied field trips because an
"unacceptable risk of fostering of religion" was "an inevitable
byproduct");
Meek, 421 U. S., at 372 (striking down program
because of a "potential for impermissible fostering of religion");
Levitt, 413 U. S., at 480 (invalidating aid for tests
designed by religious teachers because of "the substantial risk
that ... examinations, prepared by teachers under the authority of
religious institutions, will be drafted with an eye, unconsciously
or otherwise, to inculcate students in the religious precepts of
the sponsoring church");
Lemon, 403 U. S., at 619 (finding
invalid aid with a "potential for impermissible fostering of
religion"); cf.
Bowen, 487 U. S., at 621 (noting that where
diversion risk is less clearly made out, a case may be remanded for
findings on actual diversion of aid to religious indoctrination);
Regan, 444 U. S., at 656 (characterizing as "minimal" the
chance that state-drafted tests with "complete" safeguards would be
adopted to reli-
909
gious testing). A substantial risk of diversion in this case was
more than clear, as the plurality has conceded. The First Amendment
was violated.
But the record here goes beyond risk, to instances of actual
diversion. What one would expect from such paltry efforts at
monitoring and enforcement naturally resulted, and the record
strongly suggests that other, undocumented diversions probably
occurred as well. First, the record shows actual diversion in the
library book program. App. 132a-133a. Although only limited
evidence exists, it contrasts starkly with the records of the
numerous textbook programs that we have repeatedly upheld, where
there was no evidence of any actual diversion. See
Allen,
392 U. S., at
244-245; Meek, supra, at 361-362;
Wolman,
supra, at 237238. Here, discovery revealed that under Chapter
2, nonpublic schools requested and the government purchased at
least 191 religious books with taxpayer funds by December 1985.27
App. 133a. Books such as A Child's Book of Prayers,
id., at
84a, and The Illustrated Life of Jesus,
id., at 132a,
27 The plurality applies inconsistent standards to the evidence.
Although the plurality finds more limited evidence of actual
diversion sufficient to support a general finding of diversion in
the computer and instructional materials context, even in the face
of JUSTICE O'CONNOR'S objections, it fails to find a violation of
the prohibition against providing aid with religious content based
on the more stark, undisputed evidence of religious books. Compare
ante, at 832-834, and nn. 14-17, with
ante, at
834-835. As a matter of precedent, the correct evidentiary standard
is clearly the former:
"[Ainy use of public funds to promote
religious doctrines violates the Establishment Clause."
Bowen, 487 U. S., at 623 (O'CONNOR, J., concurring). We have
never before found any actual diversion or allowed a risk of it; we
have struck down policies that might permit it,
e. g.,
Tilton, 403 U. S., at 682-684, or have remanded for specific
factual findings about whether diversion occurred,
Bowen,
supra, at 621. See
supra, at 890-895. As a matter of
principle, this low threshold is required to safeguard the values
of the First Amendment. Madison's words make clear that even a
small infringement of the prohibition on compelled aid to religion
is odious to the freedom of conscience. No less does it open the
door to the threat of corruption or to a return to religious
conflict.
910
were discovered among others that had been ordered under the
program. See also
id., at 59a-62a.
The evidence persuasively suggests that other aid was actually
diverted as well. The principal of one religious school testified,
for example, that computers lent with Chapter 2 funds were joined
in a network with other non-Chapter 2 computers in some schools,
and that religious officials and teachers were allowed to develop
their own unregulated software for use on this network.
Id.,
at 77a. She admitted that the Chapter 2 computer took over the
support of the computing system whenever there was a breakdown of
the master computer purchased with the religious school's own
funds.
Ibid. Moreover, as the plurality observes,
ante, at 833-834, n. 17, comparing the records of
considerable federal funding of audiovisual equipment in religious
schools with records of the schools' use of unidentified
audiovisual equipment in religion classes strongly suggests that
film projectors and videotape machines purchased with public funds
were used in religious indoctrination over a period of at least
seven years. App. 205a, 210a, 206a-207a; see also
id., at
108a (statement of second-grade teacher indicating that she used
audiovisual materials in all classes).
Indeed, the plurality readily recognizes that the aid in
question here was divertible and that substantial evidence of
actual diversion exists.
Ante, at 832-834, and nn. 14-17.
Although JUSTICE O'CONNOR attributes limited significance to the
evidence of divertibility and actual diversion, she also recognizes
that it exists.
Ante, at 864-865 (opinion concurring in
judgment). The Court has no choice but to hold that the program as
applied violated the Establishment Clause.28
28 Since the divertibility and diversion require a finding of
unconstitutionality, I will not explore other grounds, beyond
noting the likelihood that unconstitutional supplantation occurred
as well. The record demonstrates that Chapter 2 aid impermissibly
relieved religious schools of some costs that they otherwise would
have borne, and so unconstitutionally sup-
911
IV
The plurality would break with the law. The majority misapplies
it. That misapplication is, however, the only consolation in the
case, which reaches an erroneous result but does not stage a
doctrinal coup. But there is no mistaking the abandonment of
doctrine that would occur if the plurality were to become a
majority. It is beyond question that the plurality's notion of
evenhandedness neutrality as a practical guarantee of the validity
of aid to sectarian schools would be the end of the principle of no
aid to the schools' religious mission. And if that were not so
obvious it would become so after reflecting on the plurality's
thoughts about diversion
planted support in some budgetary categories. The record of
affidavits and evaluation forms by religious schoolteachers and
officials indicates that Chapter 2 aid was significant in the
development of teaching curriculums, the introduction of new
programs, and the support of old ones. App. 105a-108a, 184a-185a.
The evidence shows that the concept of supplementing instead of
supplanting was poorly understood by the sole government official
administering the program, who apparently believed that the bar on
supplanting was nothing more than a prohibition on paying for
replacements of equipment that religious schools had previously
purchased.
Id., at 167a. Government officials admitted that
there was no way to determine whether payments for materials,
equipment, books, or other assistance provided under the program
reduced the amount of money budgeted for library and educational
equipment,
id., at 145a-146a, and the 1985 Monitoring Report
shows that the officials of at least one religious school admitted
that the government aid was used to create the library, with the
school's regular funds, when occasionally available, used merely to
supplement the government money, Fine Deposition,
id., at
63a. The use records for audiovisual materials at one religious
high school revealed that Chapter 2 funds were essential to the
school's educational process,
id., at 187a, and a different
school, as already noted, used a Chapter 2 computer to support its
computer network when its own computers failed,
id., at 77a.
The record is sparse, but these incidents suggest that the
constitutional and statutory prohibition on supplanting expenses
may have been largely aspirational. It seems that the program in
Jefferson Parish violated the statute and ran afoul of the
Constitution. Cf.
Nyquist, 413 U. S., at 783;
Zobrest, 509 U. S., at 12.
912
and about giving attention to the pervasiveness of a school's
sectarian teaching.
The plurality is candid in pointing out the extent of actual
diversion of Chapter 2 aid to religious use in the case before us,
ante, at 832-834, and n. 17, and equally candid in saying it
does not matter,
ante, at 820-825, 833-834. To the plurality
there is nothing wrong with aiding a school's religious mission;
the only question is whether religious teaching obtains its tax
support under a formally evenhanded criterion of distribution. The
principle of no aid to religious teaching has no independent
significance.
And if this were not enough to prove that no aid in religious
school aid is dead under the plurality's First Amendment, the point
is nailed down in the plurality's attack on the legitimacy of
considering a school's pervasively sectarian character when judging
whether aid to the school is likely to aid its religious mission.
Ante, at 826-829. The relevance of this consideration is
simply a matter of common sense: where religious indoctrination
pervades school activities of children and adolescents, it takes
great care to be able to aid the school without supporting the
doctrinal effort. This is obvious. The plurality nonetheless
condemns any enquiry into the pervasiveness of doctrinal content as
a remnant of anti-Catholic bigotry (as if evangelical Protestant
schools and Orthodox Jewish yeshivas were never pervasively
sectarian 29), and it equates a refusal to aid religious schools
with hostility to religion (as if aid to religious teaching were
not
29 Indeed, one group of
amici curiae, which consists of
"religious and educational leaders from a broad range of both
Eastern and Western religious traditions, and Methodist, Jewish and
Seventh-day Adventist individuals" including "church
administrators, administrators of religious elementary and
secondary school systems; elementary and secondary school teachers
at religious schools; and pastors and laity who serve on church
school boards," identifies its members as having "broad experience
teaching in and administering pervasively sectarian schools." Brief
for Interfaith Religious Liberty Foundation et al. as
Amici
Curiae 1.
913
opposed in this very case by at least one religious respondent
30 and numerous religious
amici curiae 31 in a tradition
claiming descent from Roger Williams). My concern with these
arguments goes not so much to their details 32 as it does to the
fact that the plurality's choice to employ imputations of bigotry
and irreligion as terms in the Court's debate makes one point
clear: that in rejecting the principle of no aid to a school's
religious mission the plurality is attacking the most fundamental
assumption underlying the Establishment Clause, that government can
in fact operate with neutrality in its relation to religion. I
believe that it can, and so respectfully dissent.
30 One of the respondents describes herself as a "life-long,
committed member of the Roman Catholic Church" who "objects to the
government providing benefits to her parish school" because "[s]he
has seen the chilling effect such entangling government aid has on
the religious mission of schools run by her church." Brief for
Respondents 1. She has been a member of the church for about 36
years, and six of her children attended different Jefferson Parish
Catholic run schools.
Id., at 1, n. 1.
31 E.
g., Brief for Baptist Joint Committee on
Public Affairs as
Amicus Curiae; Brief for Interfaith
Religious Liberty Foundation et al. as
Amici Curiae; Brief
for National Committee for Public Education and Religious Liberty
et al. as
Amici Curiae.
32 I do not think it worthwhile to comment at length, for
example, on the plurality's clear misunderstanding of our
access-to-public-forum cases, such as
Lamb's Chapel and
Widmar v.
Vincent, 454 U. S. 263 (1981), as
"decisions that have prohibited governments from discriminating in
the distribution of public benefits based on religious status or
sincerity,"
ante, at 828, when they were decided on
completely different and narrowly limited free-speech grounds. Nor
would it be worthwhile here to engage in extended discussion of why
the goal of preventing courts from having to "trol[l] through a
person's or institution's religious beliefs,"
ibid., calls
for less aid and commingling of government with religion, not for
tolerance of their effects.
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