*1 MITCHELL et al. v. HELMS et al.
No. 98-1648. Argued 1, 1999 December June —Decided *6 Thomas, J., announced judgment of the Court and opin- delivered an ion, in J., which C. Rehnquist, and Scaula JJ., Kennedy, joined. J., filed an opinion concurring in the judgment, O’Connor, in which J., joined, post, p. Breyer, Souter, 886. J., filed opinion, in dissenting
which Ginsburg, Stevens post, JJ., joined, p. 867. Michael W. McConnell cause argued petitioners. With him on the briefs were Dean, Patricia A. Andrew T Karron, John C. Massaro, and N. Johnson. Steffen Solicitor General
Deputy Underwood the cause for argued respondents. With her on the were briefs Solicitor General Waxman, Acting Assistant General Attorney Ogden, Paul Q.R. son, Michael Jay and Howard Singer, S. Scher. Wolf Lee Boothhy cause for argued With him respondents. *7 on the brief was Nicholas P. Miller:* of amici curiae urging reversal were filed for the State of
*Briefs Ohio et D. Betty Montgomery, Attorney by al. Ohio, of Edward General B. Foley, Maier, Solicitor, State Robert C. Solicitor, Assistant and by the Attorneys General for their respective follows: Ken Salazar of States Colorado, Robert A Butterworth of Florida, James Ryan E. Illinois, of Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, leyoub R Richard Louisiana, of M. Granholm of Mike Moore Missis- Michigan, of Jennifer sippi, Don Stenberg Nebraska, Farmer, Jr., J. of John Jersey, New Charles M. Condon L.Mark Carolina, South and Earley for Virginia; the City of New York Hess, et al. by Michael D. Koemer, Leonard J. and Hart; Edward F. X. for the American Center for Law Jay by and Justice Sekulow, Alan John P. Tuskey, Weber, Walter W. Colby M. May, Vin- and cent P. McCarthy; for the Arizona Council for Academic Private Education et al. Edward McGlynn by Jr., Gaffney, Hessler; and David J. for the AVI CHAI Foundation by Lewin, Guttman, Nathan Julia E. and Jody Manier Kris; for the Becket Fund for Religious Liberty by Kevin J. Hasson and Treene; Erie W. for the Catholic League Religious and Rights by Civil Robert George; P. for the Knights Kevin T. by of Columbus Baine and Flood; Emmet T. for the United States Catholic Conference by Mark E. Chopko, John Liekweg, and Jeffrey A Moon; Hunter and for the Washing- Legal ton Foundation by Daniel J. Popeo and R. Shawn Gunnarson.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et III, Radice, Drew S. Days by al. Anthony M. Lev Dassin, L. and Laura Taichman; R. Baptist for the Joint Committee on Public Affairs Melissa Rogers and Walker; J. Brent for the Interfaith Religious Liberty et Reinach; Foundation al. by Derek Davis and Alan J. for the National Committee for Public Education and Religious Liberty et al. by Marshall Beil Goldstein; and Philip for the National Education judgment announced the of the Court Justice Thomas opinion, and delivered an in which The Chief Justice, and join. Kennedy Justice Scalia, Justice part As longstanding of a school-aid known as Chapter 2, the Federal Government distributes funds to state governmental local agencies, and which in turn lend educational equipment materials public and private and schools, with the enrollment of participating each school de- termining the amount of aid it question receives. The Chapter whether applied 2, as in Jefferson Parish, Louisi- ana, is a respecting law an religion, establishment of because many private of the receiving schools Chapter 2 aid in that parish are religiously affiliated. We hold Chapter 2 is not such a law.
I A Chapter 2 of the Education Consolidation Improve- ment Act of 1981, Pub. L. 97-35, 95 Stat. as amended, §§ 20 TJ.S. C. origins has 7301-7373,1 its Elementary Secondary (ESEA), Education Act Pub. 89-10, L. 79 Stat. 55, and is a close cousin of provision of the ESEA *8 Association by H. Chanin, Robert Collins, Jeremiah A and Michael D. Simpson; for the National Jewish Commission on Law and Public Affairs by Dennis Rapps, Zwiebel, David Diament, Nathan Lewin; and Nathan and for the National School Boards Association Underwood, Julie by et al. Jay Worona, and Pilar Sokol.
Briefs of amici curiae were filed for the Christian Legal Society et al. by Steven McFarland, T. Samuel Casey, B. Esbeck; and Carl H. for the Institute for Justice et al. by William H. Bolick; Mellor and Clint for the Pacific Legal Sharon L. Browne and by Foundation Fetra; Deborah J. La and for the Rutherford John W. Whitehead and Steven H. by Institute Aden. 1 2 Chapter is now technically Subchapter VI of Chapter C., 70 of 20 U. S. where it was codified the Improving America’s Schools 1994, Act of Pub. 103-382, L. 108 Stat. 3707. convenience, For we will use the term "Chapter 2,” as the lower courts did. Prior to Chapter was codi fied at 20 (1988 §§2911-2976 S. ed.). U. C. recently
that we Agostini considered in Felton, v. 521 U. S. (1997). provision Like the Agostini, at issue in Chap- ter 2 channels federal to agencies funds local educational (LEA’s), usually public are which school districts, via state (SEA’s), agencies educational implement to programs to as- sist elementary children in secondary and Among schools. things, Chapter other provides acquisition
“for the and use of instructional and educa- tional including library materials, services and materials (including materials), media assessments, reference ma- computer terials, software and for hardware instruc- tional and use, other curricular materials.” 20 U. S. C. 7351(b)(2). §
LEA’s and SEA’s must offer public to assistance both and private (although any schools private school must be non- §§ profit). 7312(a),7372(a)(1). private Participating schools Chapter receive 2 aid based on the number of children § enrolled in 7372(a)(1), each school, see and allocations Chapter 2 funds for those schools generally must “equal be (consistent with served) the number of children to be expenditures programs . . . for children enrolled in the public 7372(b). § schools of the [LEA],” LEA’s must in all cases “assure equitable participation” of the pri- children vate schools “in the purposes and benefits” Chapter 2. §7372(a)(1); §7372(b). see Chapter Further, may 2 funds only “supplement and, practical, the extent increase the level of funds that would ... be made available from non- § 7371(b). Federal sources.” LEA’s and may SEA’s operate programs their “so as to supplant funds from non- Federal sources.” Ibid.
Several apply restrictions private to aid to schools. Most significantly, the “services, materials, equipment” pro- private vided schools must be “secular, neutral, non- *9 § ideological.” 7372(a)(1). In private addition, may schools acquire control of Chapter 2 funds or title to Chapter 2
803 equipment, 7372(c)(1). § materials, property. or private A school receives the equipment materials and listed in §7351(b)(2)by submitting application to the LEA an detail- ing which items the seeks school and how it will use them; the LEA, if it approves application, purchases those items from the school’s allocation of funds, and then lends them that school. (the
In Jefferson governmental Parish Louisiana unit at case), issue in this inas private Louisiana aas whole, schools primarily have used their allocations nonrecurring for ex- penses, usually materials equipment. and In the 1986-1987 year, fiscal example, for money budgeted 44% of the private schools in Jefferson spent was Parish LEA’s for acquiring library and media materials, and 48% for instruc- tional equipment. Among the equipment pro- materials and vided library have been computers, computer books, software, and also slide projectors, and movie pro- overhead jectors, tape television sets, recorders, VCR’s, projection laboratory screens, equipment, maps, globes, filmstrips, slides, and recordings.2 cassette appears
It average that, year, in an Chapter about 30% of 2 spent funds in Jefferson Parish are private allocated for schools. For year, private 1985-1986 fiscal 41 schools participated Chapter 2. year, For following partic- ipated, the participation relatively level has remained constant since App. then. See 132a. Of 46, these 34 were Roman Catholic; were religiously otherwise affiliated; and not religiously were affiliated.
B Respondents filed suit in alleging, December 1985, among other things, that Chapter 2, as applied in Jefferson Parish,
2Congress in 1988 amended the section governing the sorts of mate rials and equipment available under Chapter 2. Compare U. S. C. (1982 §3832(1)(B) ed.) 7351(b)(2) (1994 § ed.). with The record in this case dosed and the effect of the amendment is not at issue. *10 804
violated the Establishment Clause of the First Amendment of the Federal Constitution. The history- ease’s tortuous years over the 15 next indicates degree well the to which our Establishment jurisprudence Clause has shifted in re- cent times, retaining while nevertheless anomalies with which the struggle. lower courts have had to
In 1990, after
discovery,
extended
Judge
Chief
Heebe of
the District Court for the Eastern District of Louisiana
granted summary judgment in
respondents.
favor of
Helms
Cody,
(Mar.
v.
Civ.
27),
A. No. 85-5533, 1990
36124
App.
WL
to Pet. for Cert. 137a. He
Chapter
held that
2 violated the
Establishment Clause because, under the
part
second
of our
three-part test in Lemon v. Kurtzman, 403
602, 612-613
U. S.
(1971),
program
the
primary
had the
advancing
effect of
reli
gion. Chapter 2 had
effect,
sueh
view,
in his
because the
equipment
materials and
loaned to the Catholic schools were
direct aid to those schools and
the
because
Catholic schools
were, he concluded after
inquiry
detailed
into their doctrine
“pervasively
curriculum,
App.
sectarian.”
to Pet. for
Cert.
Judge
151a. Chief
primarily
Heebe relied
on Meek v.
Pittenger,
(1975),
Two Judge later, having Chief Heebe Judge retired, Livaudais received the Ruling early ease. post- on judgment motions, he reversed the decision of former Chief Judge upheld Chapter Heebe pointing 2, sig- several changes nificant legal landscape previous over years. (Jan. seven Cody, 28), Helms v. App. WL for Pet. particular, Judge Cert. 79a. In Livaudais cited our 1993 decision in Zobrest v. Catalina Foothills School Dish, 509 in1, U. S. which we held that part a State could, as sign- provide a disabled, a federal for high interpreter at Catholic language to a deaf student school. heavily decision on 1995
Judge also relied Livaudais v. Walker San Appeals Circuit, Ninth Court upholding 3d Dist., 46 F. School Francisco Unified *11 “virtually indistinguish Chapter 2 on facts that he found Judge acknowledged Walker, as in The Circuit able.” Ninth ruling, summary judgment that Meek Heebe had in his 1990 distinction appeared constitutional to erect a Wolman providing providing (permissible) textbooks between 3d, at 1464- any (impermissible). 46 F. in-kind aid other Allen, No. 1 v. School Dist. 1465;see Board Ed. Central of of (1968) program). (upholding The 392 236 textbook U. S. “thin” however, as Appeals distinction, Court of viewed this principles,” any and “unmoored from Establishment Clause by subse importantly, “rendered untenable” more and, quent particularly 3d, at 1465-1466. Zobrest. 46 F. cases, principle revived cases, view, These in the Circuit’s Ninth Ewing;3 that Ed. Allen and of Everson Board of v. of of regard provided to reli citizens without “state benefits all gion The Ninth Cir 3d, are 46 F. at 1465. constitutional.” in Board also on relied, id., cuit our observation of Kiryas Village Grumet, v. 512 U. S. Ed. Joel School Dist. of (1994), explicitly frequently on the relied that “we have religious groups general availability provided of benefit turning chal Clause or individuals in aside Establishment lenges,” purported to distin id., at 704. The Ninth Circuit guish percentage of schools Meek and based on the Wolman (a large receiving parochial percentage in those aid that were Walker), percentage 3d, 46 F. cases and a moderate when it ob distinction 1468,but that court undermined this provision of text- upheld served that Meek also “the massive (1947) re Ewing, Everson v. Board Ed. (upholding U. S. 1 of or public children to párente imbursement for costs of their busing school). private parochial
books to schools.” 46 3d, F. at 1468,n. 16. Thus, although the Ninth Circuit did explicitly hold that Meek and Wolman were no longer good law, its reasoning seemed require that conclusion.
Finally, in
relying
addition to
on our decision in Zobrest
and the Ninth Circuit’s decision
Judge
in Walker,
Livaudais
invoked Rosenberger v. Rector and Visitors
Univ.
(1995),
Va.,
Following Judge Livaudais’ ruling, respondents appealed
to the
Appeals
Court
for the Fifth Circuit.
While
appeal
pending,
was
Agostini,
we decided
in which we ap-
proved a program that, under Title I of the
provided
ESEA,
public employees to teach remedial
private
classes at
schools,
including religious schools. In
holding,
so
we overruled
*12
Aguilar v.
(1985),
Felton, 473
S. 402
U.
and partially over-
ruled School Dish
Grand Rapids
Ball,
v.
The Fifth Circuit thus faced a dilemma between, on the
one hand, the Ninth
holding
Circuit’s
analysis
and
in Walker
and
subsequent
our
Rosenberger
decisions in
Agostini,
and
and, on the other hand,
holdings
our
in Meek and Wolman.
To resolve the dilemma, the Fifth Circuit
any
abandoned
ef-
to
fort
find coherence in our ease law or
divine
to
the future
course of our decisions and
particular
instead focused on our
holdings.
(1998).
Helms v. Picard, 151 F. 3d 347, 371
It
thought
approach
such an
required
only by
the lack of
coherence
by Agostini’s
but also
to
admonition
lower courts
by to abide
applicable holding of this Court even though
holding
might seem inconsistent
our subsequent
with
Agostini,
decisions, see
II
The Establishment Clause of the First Amendment dic
“Congress
tates that
shall make no law respecting an estab
religion.”
lishment of
In
years
the over 50
since Everson v.
Ewing,
Board
Ed.
(1947),
“To City’s summarize, New York Title I does not run afoul of primary of three criteria we cur- rently use to government evaluate whether aid has the advancing effect religion: govern- It does not result in mental recipients by its indoctrination; define reference religion; or create an entanglement.” Id., excessive at 234.
In this inquiry case, Agostini’s our purpose under and effect test is a respondents narrow one. Because do not challenge holding the District Chapter Court’s that 2 has a purpose, secular and because the Fifth Circuit also did not question holding, that ef. 3d, 151 F. at 369, n. we will only Chapter consider 2’s determining Further, effect. we effect, will consider Agostini the first two crite- ria, respondents since neither the Fifth ques- nor Circuit has tioned the District holding, App. Court’s to Pet. for Cert. Chapter 108a, that 2 does not entangle- create an excessive Considering ment. Chapter light in of our more recent ease law, we conclude that it neither results in by indoctrination recipients nor defines its religion. reference to We therefore hold Chapter is not a respecting “law an religion.” establishment of In holding, so acknowledge we what both the Ninth Fifth Circuits saw inescapable was are Wolman anom- —Meek alies in our case law. We they therefore conclude that are longer good no law.
809 A As Agostini, we indicated and have elsewhere, indicated question the governmental whether to aid schools governmental results in ultimately ques is indoctrination a any tion whether religious indoctrination that occurs in reasonably governmen those schools could be attributed to Agostini, supra, sign- tal (presence action. See at 226 of “ language interpreter in Catholic school ‘cannot be attrib ” uted to decisionmaking’ (quoting state Zobrest, 509 U. atS., 10) (emphasis Agostini))', (question added in atS.,U. “any is whether [governmental] use of aid to indoctrinate religion State”); could be attributed the to see also Rosen berger, Washington Dept., S., 841-842; v. Witters of (1986); Servs. Blind, 474 481, U. S. 488-489 Mueller v. for (1983); Allen, 463 U. Corporation Presiding S. cf. of Bishop Latter-day Church Jesus Christ Saints v. of of of (1987)(“For Amos, 483 U. 327, 337 S. a law have forbidden 'effects’ say under govern Lemon, it must fair to the be ment religion through has advanced its own activities itself influence”). We have also indicated that the answer to question of question indoctrination will resolve the whether a of religion, educational aid “subsidizes” religion as our Agostini, eases use that term. See 521U. at 230-231; see also id., at 230.
In distinguishing between indoctrination that is attribut- able to the State and indoctrination that not, is we have con- sistently principle turned to neutrality, upholding that is range groups offered to a persons broad or without regard religion. religious, their If irreligious, areligious eligible are governmental all alike for aid, no one would any conclude any particular indoctrination that recipient govern- conducts has been done at the behest of the ment. For attribution ques- indoctrination is relative government tion. If the offering recipients assistance to provide, who speak, range so indoctrination, broad itself thought responsible is not par- ticular put point indoctrination. To differently, if the government, seeking legitimate to further some pur- secular *15 pose, offers aid on the same regard terms, without to reli- gion, adequately to all who further that purpose, see Allen, (discussing 245-247 dual secular and purposes religious schools), of say any then it is fair to going aid religious recipient to has the effect of fur- thering purpose. government, secular The crafting in program, such an aid has had given to conclude that a level necessary of aid is to purpose further that among secular recipients provided and has no more than that same level to religious recipients. way
As a assuring neutrality, we repeatedly have con- any governmental sidered whether goes aid that to a reli- gious “only institution does so as a genuinely result of the independent private choices of Agostini, individuals.” (internal supra, omitted). at 226 quotation marks We have significant viewed as “private whether the choices of individ- parents,” ual opposed to govern- the “unmediated” will of (internal ment, Ball, 473 S., U. quotation n. 13 marks omitted), determine ultimately what schools benefit from the governmental aid, and how much. For if private numerous choices, rather than the single government, choice of a deter- mine the distribution pursuant of aid eligibility neutral government criteria, then a cannot, or easily, at least cannot grant special might favors that lead to a religious establish- ment. Private choice helps guarantee neutrality by also mitigating preference pre-existing recipients that arguably any governmental inherent in program, see, g., e. Gilder, The Everything: Revitalization of The Law of 1988), Macrocosm,Harv. Bus. (Mar./Apr. Rev. 49 and that could lead to inadvertently favoring religion one favoring or religious private general schools over nonreli- gious ones.
The principles neutrality private choice, and their relationship prominent other, to each were only Agos- supra, Uni, at 225-226, 228, 280-282,but also in Zobrest, Wit ters, and Mueller.5 The reasoning heart our in Zobrest, upholding governmental provision sign-language of a inter preter to a deaf high student his Catholic school, aswas follows:
“The service at issue in part this ease is gen- of a eral program that distributes benefits neu- trally child qualifying as under ‘disabled’ regard [statute], without to the ‘sectarian-nonseetarian, publie-nonpublic or nature’ of the school the at- child By according tends. parents freedom select a school of their choice, the statute government- ensures that a paid interpreter present will be in a sectarian school only as a private result of the par- decision individual *16 ents. In other words, [statute] because the no creates financial parents incentive to a choose sectarian interpreter’s school, an presence there cannot be attrib- uted to state decisionmaking.” 509 U. atS., 10. passage
As this private indicates, the helped choices to en- neutrality, sure neutrality private together choices any possible eliminated attribution to the even when interpreter classes translated on Catholic doctrine.
Witters and employed Mueller reasoning. similar In Wit- ters, we held that the Establishment Clause did not bar a State including from program within providing neutral tu- payments ition for vocational person rehabilitation a blind studying at a college Christian to pastor, become a mission- ary, youth or director. explained: We
“Any aid . . . ultimately to flows institu- tions does so as a genuinely result independ- private ent and recipients. choices of Washington’s 5Justice O’Connor acknowledges that “neutrality is an important rea son for upholding government-aid programs,” one that recent our eases Post, have “emphasized . . . repeatedly.” at 838 (opinion concurring judgment). made available without generally regard
the sectarian-nonsectarian,
or public-nonpublic nature
of the institution benefited and . .. creates no financial
incentive for students
to undertake
sectarian educa-
tion.
. . .
fact
[T]he
that aid
goes
individuals means
that the decision to support religious education is made
the individual,
not by the State.
“[I]t does not seem
appropriate
view
aid ulti-
mately
to the Inland
flowing
School
Empire
of the Bible
resulting from state action
or
sponsoring
subsidiz-
ing religion.”
6The majority opinion also noted that only a small portion of the overall aid under the State’s program would go to religious education, Witters, see S., 474 U. at 488, but it appears that five Members of the Court thought this point id., irrelevant. See (Powell, n. 8 J., joined by Burger, J.,C. and Rehnquist, J., concurring) (citing Allen, v. Mueller 463 U. S. 388, 401 (1983),to assert that validity of program “does not depend on the fact petitioner appeal’s to be the only handicapped student who has sought to use his assistance to pursue religious training”); at 490 (White, J., concurring) with (agreeing “most of Justice Powell’sconcurring opinion with respect to the Mueller,” relevance of but not specifying fur *17 ther); id., at 493 (O’Connor, J., in concurring part and in concurring judg ment) with (agreeing Justice Powell’sreliance on Mueller and explaining that the program did not have an impermissible effect, because it was neutral and involved private choice,and thus “[n]oreasonable observer is likely draw from the facts before us an inference that the State itself is endorsing a religious belief”). practice or recently, More in Agostini v. Felton, 521 U. (1997), S. 203 we held that the proportion of aid benefiting students at religious schoolspursuant to a neutral program involving pri vate choices was irrelevant to the (re Id., constitutional inquiry. at 229 fusing “to conclude that the constitutionality of an aid program depends on the number of sectarian school students happen who to receive the aid”); otherwise neutral see also post, 848 (O’Connor, J., in concurring judgment) (quoting this passage). (Powell, joined by 490-491 Burger, J., J.,C. and Rehnquist, concurring); J., id., at 493 (O’Connor, concurring part J., in concurring judgment); (White, see id., also at 490 J., concurring).
The tax
expenses
deduction
educational
upheld
that we
was,
in Mueller
respects,
in these
as
same
the tuition
grant in
upheld
chiefly
Witters. We
it
it “neutrally
because
provides state
spectrum
assistance to a broad
of citizens,”
Agostini's primary second determining criterion for governmental effect of closely aid is related to the first. The second requires criterion a court to consider an whether program “define[s] recipients its religion.” reference to S.,U. briefly 234. As we explained Agostini, id., at 230-231, this second criterion looks to the same set of facts as does our focus, -underthe first criterion, on neutral- ity, see id., at but the 225-226, second criterion uses those facts to answer a somewhat question different —whether criteria for allocating “ereat[e] the aid a financial incentive undertake indoctrination,” id., Agos- at 231. In tini we set out the following rule for answering this question:
“This present, incentive however, where the aid is allocated on basis neutral, secular criteria that neither favor religion, nor disfavor and is made available to both and secular beneficiaries on a nondis- criminatory basis. Under such circumstances, the aid likely is less to have the effect of advancing religion.” Ibid.
The Agostini on cases which relied Agos- for this rule, and tini make itself, relationship clear the close between this rule, private say incentives, and choice. For to pro- that a gram does not create an religious incentive to choose schools say private is to truly that the “independent,” choice is Wit- ters, Agostini, supra, 487. See (holding at 232 I any impermissible Title did not create incentive, be- cause its services were “available all to children who meet eligibility requirements, Act’s no matter what their reli- gious they go school”); or beliefs where Zobrest, 509 S.,U. (discussing, at 10 in successive neutrality, private sentences, choice, and respectively); financial incentives, supra, Witters, (similar). at 488 When such an incentive does exist, there greater is a risk that one could attribute to the any indoctrination religious schools. See Zobrest, supra, at 10.
We hasten add, what should obvious be from the rule simply itself, that because an aid private offers religious schools, and thus schools, they a benefit that did previously receive does not mean that the program, by reducing the securing cost of religious creates, education, Agostini’s under second criterion, an parents “incentive” for to choose such an education for their children. For will have some such effect. See Allen, 392 U. S., at 244; Everson, 330 at S., U. see 17; also Mueller, 463 S.,U. at 399.
B Respondents inexplicably make no effort to Chap- address Agostini ter under the test. dismissing Instead, Agostini factually distinguishable, they they offer two rules that govern contend should our Chap- determination of whether ter 2 advancing has the effect of religion. They argue first, chiefly, that “direct, primary nonineidental” aid to the educational always mission of impermissi- schools is they ble. argue Second, provision schools aid that is similarly impermis- divertible to use *19 sible.7 are Respondents’ arguments inconsistent with our more recent ease in law, and Zobrest, and particular Agostini we therefore them. reject
1 some of our Although eases, earlier Ball, 473 particularly U. S., did 393-394, the distinction between di- emphasize rect and indirect the aid, of this purpose distinction was
7 also Respondents contend that 2 Chapter aid supplants, rather than supplements, core educational function of parochial schools and there fore has effect of furthering religion. Our case law does provide some indication that this distinction bemay relevant to determining whether aid in indoctrination, results governmental Agostini, see 228-229; v. Zobrest Catalina Dist., Foothills School 1, 12 (1993); 509 U. S. but see School Dist. Ball, G'rand Rapids v. 473 (1985), U. S. but we have never delineated the distinction’s contours or held that it is constitu tionally required.
Nor, to the extent that the supplement/supplant line is separable from respondents’ direct/indireet and “no divertibility” arguments, do we need to resolve the distinction’s for, constitutional status today, we have al- noted, ready Chapter itself that requires aid may only be supplemental. 7371(b). § 20 U. S. C. See post, (O’Connor, J., also at 867 in concurring judgment) (decliningto decide whether supplement/supplant distinction is requirement); constitutional but post, see at 852 (explaining that com- puters “necessary” are to "the educational process”). We that presume whether a parish has complied with statutory that requirement be, would least, at the very to relevant whether a violation any constitutional supplement/supplant occurred, requirement yet has we have no reason to believe any that there has been material statutory violation. A statewide review 7371(b) § Louisiana SEA that indicated receives uni- nearly versal compliance. 112a. More App. neither importantly, the District Court nor the Fifth Circuit even that hinted Jefferson Parish had violated §7371(b), respondents barely mention the in statute their brief this Court, offering only the slimmest any violation, evidence of possible see id., at 63a. Respondents argue any Chapter 2 aid schooluses (such to comply with state requirements as those relating to computers libraries) violates necessarily whatever supplement/supplant may line Constitution, exist in the but our decision Committee Public Ed. and Religious Liberty Regan, v. (1980), U. S. 646 upholding reimburse- ment to parochial schools of costs relating state-mandated testing, rejects such any blanket rule. merely prevent religion, “subsidization” of id., see at 394. As even the dissent post, all but (opin- admits, see at 889 J.), ion of pur- our more recent cases address this Souter, pose through the direet/indireet distinction but rather through principle private incorporated choice, as (i. Agostini the first e., criterion whether indoctrination government). could be attributed to the If schools, aid to neutrally even aid,” “direct available reaching and, before benefiting any or passes through school, first (literally figuratively) hands private or of numerous citizens *20 are free who government direct the aid elsewhere, the has provided any “support religion,” supra, Witters, at 489. supra, Although See at presence 810. private literally choice is easier to see passes when aid through the why hands of individuals—which is we have mentioned di- rectness in private g., same breath with choice, see, e. Agostini, 521 supra, U. atS., 226; Witters, 487; at Mueller, supra, at why 399—there is no reason the Establishment requires Clause such a form. Agostini expressly rejected
Indeed, the absolute line that respondents would have us explained draw. We there that departed “we have from the rule relied on in Ball that all government directly aid that assists the educational function religious schools is Agostini invalid.” 521 U. S., at 225. primarily relied on Witters for this conclusionand made clear private choice neutrality would resolve the concerns formerly addressed the rule in It Ball. was undeniable (tuition) in Witters that the aid ultimately go would to the Empire Inland School of the support Bible and would reli- gious education. arrangement, We viewed this however, as government no issuing different from paycheck a to one of employees its knowing employee that the would direct the religious funds to a arrangements institution. Both would be valid, for the “[A]ny money ultimately same reason: religious went to ‘only institutions did so a result of the genuinely independent private choices of’ individuals.” Agostini, supra, at 226 (quoting 487). Witters, 474 S.,U. In addition, the in Witters was neutral. 521 U. S., (quoting 487). supra, Witters, Agostini
As
explained, the
reasoning
same
was at work in
Zobrest, where we
government-funded
allowed the
inter-
preter
provide
assistance at a Catholic school, “even
though she would he mouthpiece
religious
instruction,”
interpreter
because the
provided
was
according to neutral
eligibility
private
criteria and
choice. 521
S.,U.
at 226.
Therefore, the
messages interpreted by the inter-
preter could not be attributed to
government,
see ibid.
(We saw no difference in Zobrest
government
between the
hiring the interpreter direetly
and the
providing
funds
parents
to the
who then would hire
interpreter.
11.)
aid.” S.,U. at 362-363. The materials-and-equipment essentially in Wolman was except identical, the State, in comply an effort Meek, with Wolman, see (The atS., 233, 250, loaned the aid to the students. program operated revised much upheld like the one we in Compare Allen. supra, Wolman, with Allen, 392 243-245.) S.,U. Yet we dismissed as “technical” the dif- ference programs: “[I]t between two would exalt form over substance if this distinction justify were found to a re- sult different from that in Meek.” 433 S.,U. at 250. Wol- although man purporting thus, actually to reaffirm Meek, undermined decision, as is similarity evident from the reasoning between the of Wolman and that the Meek (The Compare dissent. supra, Wolman, at 250 “technical change legal irrelevant), in bailee” was supra, Meek, with at 391 concurring judgment J., part in in (Rehnquist, (“Nor dissenting part) can the fact that the school is regarded determinative”). bailee be constitutionally That Meek and Wolman pro- reached the same result, on grams that indistinguishable were but for the direct/indirect distinction, shows played that that part distinction no Meek. respondents’
Further, formalistic line breaks down in the application to programs. real-world In example, Allen, for although recognize we did that students themselves received and owned the textbooks, we also noted that the books provided private were those that the required schools for courses, that the schools eould collect requests students’ books and submit to the them board education, that schools could store the textbooks, and that the textbooks were essential to the teaching schools’ subjects. of secular See 392 S., U. at 243-245. Whether one chooses to label this program “direct” or arbitrary “indirect” is a rather choice, one that does not further the analysis. constitutional
Of course, we have “special seen Establishment Clause dangers,” Rosenberger, 515 U. S., at money 842, when
819
given
schools
or entities
rather
than,
directly
as in Witters and Mueller, indirectly.
515
S.,
See
U.
at 842
cases); id.,
(collecting
at 846-847 (O’Connor,
J., concurring);
see also Bowen v. Kendrick,
820 payments money case,
direct are not at issue in this “special” to create we refuse to allow a case a rule for all cases.
2 Respondents also contend the Establishment Clause requires religious impermissibly that aid to schools not be religious religious to in nature or be divertible use. We agree part argument with the first of this but not second. the Respondents’ divertibility” “no our rule is inconsistent with long gov- more recent law as case and is unworkable. So the public ernmental aid is not itself “unsuitable for in the use religious supra, Allen, schools because of content,” eligibility constitutionally per- aid is determined a any missible manner, use of that aid to indoctrinate cannot be attributed to the and is thus not of constitu- tional the And, course, concern. use to which the aid is put governing does not affect the criteria the aid’s allocation any impermissible and thus does not create incentive under Agostini’s second criterion. precedents, particularly require
Our recent Zobrest, us to reject respondents’ argument. gave For Zobrest no consid- divertibility eration or even to actual Had diversion. things such mattered to the in Zobrest, Court we would have quite easy found the striking case to be down rather —for upholding than, as we just did, how —whieh (Black- g., dissent saw See, case. e. U. (“Until dissenting) mun, J., now, the Court never has author- public employee participate directly ized religious indoctrination”); (“[government id., at crosses the boun- dary when it furnishes the medium for communication of religious message. state-employed [A] sign-language ... interpreter religious would serve as the conduit for James’ thereby assisting Salpointe School] [High education, in its indoctrination”); (interpreter mission of id., at 23 available to private, areas, schools “‘all nonprofit in low-income or practi- ” Id., Catholic). cally all’ of which were at 768. likely “is place imprimatur governmental approval upon religion”); the favored generally see id., at 18-23. clearly, Quite respondents then, we did not, do, think governmental the use of aid to further indoctrina- synonymous tion was with indoctrination government or that such use of aid created improper *24 incentives.
Similarly, had we, Witters, in been concerned with diverti- bility or diversion, we would have unhesitatingly, perhaps summarily, struck down the program, tuition-reimbursement because it was certain sought that participate Witters to in it acquire to an education in a career from a sectarian guaranteed. institution. Diversion was Mueller took the same view as Zobrest and Witters, for we did not in Mueller require the State show the tax deductions only were for the costs education in subjects. secular We declined impose any segregation such requirement for either the tuition-expense deductions or the deductions for items strik- ingly similar to at those issue in and Meek Wolman, and here. See Mueller, 463 U. S., 2; at n. 391, see id., also at 414 (Marshall, (“The dissenting) J., instructional materials which are subsidized the Minnesota tax plainly deduction may be belief”). used to inculcate values acknowledges Court in Zo-
Justice O’Connor brest approved programs Witters that involved actual post, diversion. (opinion See concurring in judg- ment). The dissent likewise does deny that Witters in- volved actual post, diversion. See at 895-896, 16. n. The dissent does claim that the aid in Zobrest “was not con- sidered post, divertible,” at 895, 16, n. but the dissent in Zobrest, which the today’s joined, author of dissent under- stood case supra, otherwise. See at 820. As that dis- sent made government clear, diversion is the use of aid to further a message. supra, Zobrest, See at 21-22 (Blackmun, dissenting); post, J., see also at 842, 857 (O’Con- concurring J., judgment). By in that definition, nor, government-provided interpreter in Zobrest was not di- actually vertible, but diverted.
Respondents appear rely on Meek and Wolman to es- against tablish their rule “divertible” aid. But those cases offer any, support little, if respondents. for Meek mentioned divertibility only briefly concluding in a footnote, see 421 U. S., n. 16, and that mention peripheral was, most, to the reasoning striking Court’s lending down the of in- structional equipment. materials and The aid explicitly Wolman barred aid, divertible at 248- 249, so a divertibility concern for could not part have been of our reason for finding that program invalid.
The
divertibility
issue is not
of aid but rather whether the
aid itself
impermissible
an
has
content. Where the aid
would be
public
suitable for use in a
school,it is also suitable
any private
use in
Similarly,
school.
prohibition
against
providing impermissible content
resolves the Establishment Clause concerns that exist if aid
*25
actually
is
religious
diverted to
Agostini,
uses.9 In
we
explained
by making just
Zobrest
this distinction between
the content of aid and the use of that aid:
“Because the
government aid in
interpreter,
was
Zobrest
who was her
inculcating
any religious messages,
no
self
(second
place.”
indoctrination took
823 assigned fulfilled her duties, id., see at 224-225, had “no in- religious significance,” (dis- herent Allen, at 244 cussing Everson), bus rides (given and so it did not matter the neutrality private choice program) involved in the that she mouthpiece “would be a religious instruction,” Agostini, Zobrest). supra, at (discussing 226 just And as a government interpreter does not herself religious inculcate a message when she conveying is gov- one—so also a —even computer ernment projector or overhead does not itself in- message, culcate even when it conveying is one. Agostini In approved itself, we provision public em- ployees to teach secular private remedial classes in schools partly because we concluded that there was no reason t©sus- pect indoctrinating that part content would gov- be of such ernmental aid. See 521 S.,U. 223-225, 226-227, 234-235. Relying Zobrest, on presume we refused public that the “‘inject teachers would content’” into their classes, especially S.,U. given safeguards certain existed; we also saw no they evidence that had done so, id, at 226-227.
In Allen similarly we focused on emphasizing content, preapproved were by public textbooks school authorities and were not “unsuitable for public use in the schools be- cause of content.” S.,U. at 245. Lemon, See (“We S.,U. note that the dissenters in Allen chiefly seemed concerned with pragmatic difficulties in- ensuring volved in truly secular content of the text- added)). (emphasis books” Although might it appear that a book, it because a pre-existing has content, is not divertible, and thus that lack divertibility holding motivated our Allen, it imagine hard to any book that could not, in even *26 moderately skilled hands, serve to illustrate a mes- sage.10 at 855 Post, concurring judgment) (O’Connor, J., 10Although did, we Ed. elsewhere in Board School Central Dist. Allen, No. v. (1968), 392 U. S. observe, in response to a party’s argu ment, that was there no evidence that the schools were secular text- using with this
(agreeing point). Indeed, plaintiffs Walker conceded essentially as much. 3d, 46 F. at 1469, n. 17. A teacher for could, use example, easily Shakespeare's King even Lear, set in though times, to pagan illustrate the Fourth Commandment. (“Honor See Exodus 20:12 father your and mother”). your Thus, it is a non for the dissent sequitur to contend that the textbooks in Allen were “not divert- readily ible to religious teaching purposes” because “had they known and fixed secular Post, content.” at 893-894.
A concern for divertibility, opposed con- improper tent, is misplaced because it only fails explain why the sort of aid that we have allowed is permissible, but also because it is all aid, no enveloping matter how boundless — trivial —and thus has the most (if attenuated link any) to any realistic concern for an preventing “establishment of religion.” for Presumably, example, government-provided lecterns, chalk, crayons, pens, paper, paintbrushes would have to be excluded from religious under schools respond- ents’ proposed rule. But we fail to see how indoctrination (i. e., means of) diversion such could be attributed to the government. In fact, the risk improper attribution is less when the aid lacks content, (as there is no risk books) there with of the government inadvertently provid- supra, ing improper content. See Allen, at 255-262 (Doug- las, J., dissenting). aid, Finally, with or without con- tent, is “divertible” in the sense that it allows schools to “ “divert” resources. Yet we have ‘not accepted recur- rent argument that all aid is forbidden because aid to one of an aspect institution frees it to spend its other resources ” on Regan, religious ends.’ S.,U. at 658 Hunt (quoting v. McNair, (1973)). S. 734, 743 books to further somehow id., instruction, see we had no occasion to say what the consequence would be such were use occurring and, more importantly, we think that this brief concluding comment cannot read, be (not after Zobrest especially Witters, mention Mueller, Agostini) as essential to the reasoning of Allen. *27 perhaps It is upon conceivable that them- courts could take myriad selves distinguishing among task kinds of possible diverting on based the ease of kind. But each escapes it might coherently us a how court such draw actually line. It not is far workable, more but also related preventing to real concerns about advancement religion by government, simply require, Zobrest, as did Agostini, and Allen, that a of aid to schools not provide improper eligibility content and that it determine permissible allocate the aid on a basis.11
C The up smorgasbord dissent serves that, of 11 factors depending on particularity,” the facts of each case “in all its post, constitutionality at 877, could be relevant to the program. school-aid And those 11 are a minimum. bare are likely We post, reassured that there are more.12 at See Presumably they 885, 888. eases, will be revealed in future as needed, but at least one additional factor is evident from the dissent itself: The dissent resurrects the concern political occupied divisiveness but once Court post-Aguilar rightly disregarded. Compare cases have post, at Agostini, 868, 872, 901, 902, 909, 27, S., n. with at 233-234; Bowen, 487 at 617, U. n. 14; Amos, S.,U. at n. 17. explained 339-340, As Justice in dis O’Connor Aguilar: sent “It interpreta is curious to base indeed our tion of the speculation Constitution on as to likelihood phenomenon of a may parties merely by which the create 11Justice agrees that the Constitution bar divert O’Connor does not ible aid. See post, at 857 (opinion She concurring judgment). also finds actual diversion unproblematic private-choice” if “true directs the aid. See post, choice, 842. And even not such when there is private she thinks that some amount of actual diversion is tolerable and that safe guards for minimal, preventing detecting may actual diversion be further, we explain infra, 832-834. 12 It is thus surprising for the to accuse us of a rule of following dissent Post, “breathtaking... manipulability.” n. 19.
prosecuting a lawsuit.” U. S., at 429. While the dis- delights perverse sent in the chaos that all these factors *28 produce, post, at post, 899; see also at 869, 885, the Constitu- unnecessarily tion becomes legislators, clouded, and litigants, groan, and lower courts history as the of amply this case supra. demonstrates. See Part I-B, One of the dissent’s special factors deserves mention: (or whether a school that receives aid whose students receive aid) pervasively sectarian. The dissent is correct that period there was a when this factor particularly mattered, if the pervasively sectarian school was primary a secondary or school. Post, at 885-887, 894, 898, 902-906. But pe- riod is one that the regret, Court should thankfully and isit long past.
There are numerous
formally
reasons to
dispense with this
factor. First, its
precedents
relevance in our
sharp
is in
de-
cline. Although our case law has consistently
it
mentioned
years,
even in recent
we have not struck
an
pro-
down
aid
gram in reliance on this
Aguilar
factor since 1985, in
and
Agostini
Ball.
of course
Aguilar
overruled
in Ml and Ball
part,
in
today
and
distances herself from
Justice
O’Connor
part
of Ball with which
previously agreed,
she
by reject-
ing the distinction
public
between
private employees
and
prominent
that was so
Agostini.
in
Compare post, at 858-
860,
(opinion
863-864
concurring
judgment),
in
Agos-
with
supra,
tini,
at 223-225, 234-235.
year
In
a
Witters,
after
Aguilar and Ball,
didwe
not ask whether
Empire
the Inland
School of the Bible
pervasively
was
sectarian.
In Bowen, a
1988 decision, we refused to
facially
find
pro-
invalid an aid
gram (although
schools)
one not involving
recipients
whose
had, the District Court found,
pervasively
included
sectarian
institutions. See
U. S.,
at
(Blackmun,
636, 647, 648
J.,
dissenting). Although we
open
it
left
on remand for the Dis-
trict
Court
prior finding,
reaffirm its
pains
we took
emphasize the narrowness of
“pervasively
sectarian” cat-
egory, see id., at
(opinion
Court),
620-621
of the
and two
majority questioned
Members of the
category
whether this
was
joined by
“well-founded,” id.,
624 (Kennedy,
J.,
concurring).
Agostini,
Then, J.,
Zobrest
we
Scalia,
upheld
programs
to children who attended schools that
only pervasively
were not
primary
sectarian
also
but
were
secondary.
away
turning
Zobrest, in
challenge
based
pervasively
on the
Salpointe
nature
sectarian
Catholic
High
emphasized
presence
private
School,
choice and
government-provided
absence
sectarian content. 509
Agostini,
U.
explaining
S.,
why
13.
the aid program
was constitutional, did not
perva
bother to mention that
sively sectarian schools were at issue,13see
226-
fact
was not lost on the dissent,
id.,
see
at 249
J.).
(opinion
disregarding
In
the nature of the
Souter,
*29
Agostini
merely
school,
returning
Zobrest and
were
to the
approach
Allen,
of Everson and
upheld
which the Court
programs
pervasively
to students at
sectarian schools.
post,
See
at 875,
dissenting) (noting
J.,
885-886
(Souter,
Everson);
regarding
this fact
Allen,
Second, the recipient nature of a should not mat- ter to analysis, long the constitutional so recipient as the adequately government’s furthers the purpose. secular See supra, permissible a 810. If offers aid to the re- ligious (including sectarian), pervasively the areligious, the irreligious, and the mystery it is a religion which view of government has mystery established, and thus a what constitutional violation would be. pervasively The sectarian recipient has not special received favor, it most bizarre that the Court would, as the dissent seemingly does, special reserve hostility for those religion who take their se- riously, who think that religion their should affect the whole 13Nor does Justice do O’Connor so today analysis in her Jefferson Parish’s Chapter 2 program.
of their lives, or who make the being mistake of effective transmitting their views to children. inquiry
Third, recipient’s
into
views re
quired by a focus on
a
whether
school is pervasively sectar
ian is
unnecessary
not
but also
It
offensive.
is well
established, in numerous other contexts, that courts should
refrain
through
from trolling
person’s
or
reli
institution’s
gious
Employment
beliefs. See
Dept.
Div.,
Human Re
sources
cases).
(1990)
Smith,
Ore. v.
Yet that is
what this
requires,
factor
as was
evident before the District Court. Although the dissent
welcomes
probing,
such
see post, at 904-906,
pro
we find it
foundly troubling.
In addition, and
application
related, the
of the “pervasively sectarian” factor collides with our deci
sions
prohibited
that have
governments from discriminating
in the
public
distribution of
upon
benefits based
religious sta
tus
sincerity.
or
Rosenberger
See
v. Rector and Visitors of
Univ.
(1995);
Va.,
Finally, hostility pervasively to aid to sectarian schoolshas pedigree shameful that we do hesitate to disavow. Cf. Chicago v. Morales, (1999) 527 U. S. 41,53-54, 20n. (plurality opinion). Although professes dissent concern for “the implied exclusion of the less post, favored,” at 868, the exclu- sion of pervasively sectarian government-aid schools from *30 programs just that, particularly given the history of such Opposition exclusion. to aid to “sectarian” acquired schools prominence in (and 1870’s Congress’ with consideration passage) near of the Blaine Amendment, which would have amended any Constitution to bar aid to sectarian insti- tutions. Consideration of the amendment arose at a time pervasive hostility to the Catholic Church and to Catho- general, lics in and it open was an secret that “sectarian” was code for “Catholic.” generally See The Green, Blaine Amendment (1992). Reconsidered, 36 Am. Legal J. Hist. 38
829 Notwithstanding history, its of course, “sectarian” could, on its describe face, the school of sect, but the possibility Court eliminated this of confusion when, Hunt v. McNair, S., it “pervasively 743, U. coined the term sectarian” —a term applied which, that time, could be al- exclusively most parochial to Catholic schools and which today’s even exemplifies chiefly by dissent reference such J.). post, schools. See (opinion at 886, 904-906 of Soutek, nothing In short, in the requires Establishment Clause pervasively exclusion of sectarian from schools otherwise permissible programs, aid and other doctrines of this Court bar bigotry, it. This doctrine, born of be should buried now.
J-HW-< Applying Agostini the two relevant criteria, we see no concluding basis for that Jefferson Chapter Parish’s advancing “has the religion.” effect of Agostini, supra, Chapter at 234. governmental does result indoctrination, because it eligibility determines for aid neu- trally, allocates private based on the choices of the parents of provide schoolchildren, and does not aid that has impermissible an content. Chapter does Nor 2 define its recipients by religion. reference to
Taking the second criterion it Chapter first, is clear that aid “is allocated on the basis neutral, secular criteria that neither favor nor religion, disfavor and is made available to both and secular beneficiaries on a nondiscrimina- tory Agostini, basis.” 521 U. at 231. Aid is allocated based on enrollment: “Private Chapter schools receive 2 ma- equipment terials and per based on capita number of stu- dents at each school,” Walker, 46 F. 3d, and alloca- private (consistent tions to equal schools must “be with the served) number of to be expenditures children pro- grams subchapter under this pub- for children enrolled in the 7372(b). § lic schools of the [LEA],” 20 S.U. C. LEA’s must provide Chapter 2 equipment materials and for the benefit
830
of children in schools private “[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 second- § ary 7372(a)(1). schools.” See App. Pet. for Cert. 87a (District Court, recounting testimony head of Louisiana’s 2 Chapter LEA’s are told that “‘for dol- every lar you spend school public student, you spend same dollar for the non-public school student’ ”); §§7372(a)(1) (b) (children in private schools must receive “equitable participation”). The allocation criteria therefore create no improper incentive. 2 Chapter does, by statute, deviate from a pure per capita basis for aid allocating to LEA’s, increasing 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 reason any to think, 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 incentive one or way the other with regard to religion. 2 Agostini
Chapter also satisfies first criterion. The program makes a broad array schools eligible for aid with- out regard to their religious affiliations or lack thereof. § 7372; § see 7353(a)(3). We therefore have no difficulty con-
cluding that Ghapter is neutral with regard religion. Agostini, supra, at 225-226. See Chapter aid also, like the Agostini, Zobrest, and Witters, reaches participating schools “as a consequence of private decisionmaking.” Agostini, supra, at 222. Private decisionmaking controls because of the per capita allocation scheme, and those deci- sions are independent because of the program’s neutrality. See 521 U. atS., 226. It is the students and their parents— not the government who, their through choice of school, — de- who termine receives Chapter funds. The aid follows the child. *32 Chapter provided pursuant
Because 2 private aid is to problematic choices, it is not fairly that one could describe Chapter 2 providing as “direct” aid. The materials and equipment provided Chapter under presumably are used by from time to time entire classes rather than individual (although students likely individual students are chief library consumers of perhaps, books computers and, and software), computer and students themselves do not need to apply Chapter for 2 aid in for their order schools to receive explained it, but, as we Agostini, in these traits are not con- stitutionally significant meaningful. or See id., at 228-229. already Nor, we explained, reasons have it is of constitu- significance tional that the schools themselves, rather than the students, Chapter are bailees aid. The ulti- mate Chapter beneficiaries of 2 aid are the students who at- tend the schools that receive that aid, regard- and this is so less of whether lug individual computers students to school day each or, Jefferson Parish sensibly provided, has more computers. schools receive the Like the Ninth Circuit, post, unlike the dissent, at 888, we “see little difference in loaning science kits to bring students who then the kits to opposed school as loaning science kits to the di- school rectly.” Walker, supra, at 1468,n. 16; Allen, see 392 U. at 244, n. 6.
Finally, Chapter Agostini satisfies the first criterion be- provide cause it does not schools aid that has an impermissible explicitly content. The anything statute bars of the providing sort, Chapter that all 2 aid for the benefit private children schools shall be “secular, neutral, and § nonideological,” 7372(a)(1), the record indicates that the Louisiana SEA and the Parish faithfully Jefferson LEA have requirement enforced this insofar as relevant to this case. The computers, chief computer issue is software, and library computers books. presumably The pre- have no existing content, or at least impermissi- none would be ble public for use in Respondents schools. do not contend
otherwise. Respondents also offer no evidence that reli- schools gious have received software from the that has an impermissible content.
There is evidence that has equipment been, or at least eas could ily be, diverted for use in g., religious classes. See, e. 108a, App. 118a, 205a-207a. Justice however, O’Connor, finds the safeguards against diversion adequate prevent and detect actual Post, diversion. at 861, 867 con (opinion curring judgment). The on safeguards which she relies reduce to (1) three: *33 signed assurances that 2 aid will Chapter be used for only secular, neutral, and nonideological pur (2) poses, (3) visits, monitoring the requirement that be labeled as equipment belonging 2.14 As Chapter to the first, Justice O’Connor rightly little places reliance on it. Post, at 862. As to the second, monitoring by SEA and LEA officials is highly unlikely prevent or catch divers ion.15 As to the third, compliance with the re labeling 14Many of the other safeguards on which Justice O’Connor relies are safeguards against improper content, against not 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 (which materials and equipment is one reason that we find the safeguards against improper content 834-835). adequate, at infra, Similarly, the statutory provisions against supplanting nonfederal funds and against pay ing federal funds for religious or worship instruction, which on Justice relies, also O’Connor post, little, are of if any, relevance to diver sion—the former because diversion not need supplant, and the latter be cause religious schools funds, receive no 7372(c)(1). § 20 U. S. C. 15The SEA director acknowledged as much when he said that the SEA enforces the rule against diversion “as can,” best we visits “[o]neor two” of the private schoolswhenever it LEA, reviews an and reviews each LEA only every onee years. three App. 94a-95a. When asked whether there was “any way” for SEA officials know of diversion of a Chapter 2 computer, he responded, “No, Id., there is no way.” at 118a. Monitoring by the Jefferson Parish LEA is similarly ineffective. The LEA visits each private schoolonly once a year, for less an than hour and a half, and alerts the school to the visit in Id., advance. at 142a,151a-152a, 182a-183a. The monitoring visits consist of reviewing records of equip- ment use and of to a speaking contact single person. Self-reporting is the sole source for Id., records of use. at 140a. In the case of overhead 113a, see quirement and, even re haphazard, if the App. quirement followed, were we fail to see how a label prevents diversion.16 In we with the addition, dissent agree there is evidence of actual diversion and that, were the safe other guards than anything there anemic, would almost post, be more such certainly evidence. See at 903, 906- 910.17 In event, any reasons we discussed in Part II-B-2, projectors, the record sheet, a appears just to be and the LEA sign-out officialsimply checks whether “the Id., recordation of use is attempted.” at 143a. The person teacher; contact is not monitoring not does include teachers; speaking with and the LEA makes effort no to inform teachers of the on restrictions use of Chapter Id., equipment. at 154a-155a. The contact person also is usually Id., with involved the computers. Thus, at 163a. person contact is uninvolved use actual of the and, therefore, divertible equipment in no position to know whether diver- id., sion has See then, occurred. 154a. Unsurprisingly, per- no contact has (In son ever reported Id., diversion. at 147a. Agostini, by contrast, monitors visited each month, classroom—unannounced—once and the teachers specific received training in what activities were permitted. 521 234.) 211-212, U. The head of the Jefferson Parish LEA admitted had, have, she and could no idea Chapter whether equipment was being diverted: “Q: Would ascertain, there be way to visit, *34 from this on-site whether the material equipment or purchased are used not in accordance with 2 Chapter plan submitted, but for other purposes, also? “A: No.
“Q: Now, it be your would view that a church-affiliated school that would teach the man, creation of the concept origin of that if they used Chap- [a ter 2] projector, overhead that would be a ? violation... “A: Yes.
“Q: Now, is any way, there you do ever question ask that a church- school, affiliated as to they it whether use for that purpose? “A: No.” 144a, App. 150a-151a. id., 139a, (similar). See 145a, at 146a-147a 16 fact, In label, by associating government with any use of the equipment, exacerbates Establishment problem Clause
might exist when diversion occurs. 17Justice O’Connor dismisses as de minimis the evidence of actual Post, diversion. at (opinion 864-865 in concurring judgment). may That be, but it is good just to realize what she considers de minimis. There is 834
supra, the evidence of actual diversion and the weakness of the safeguards actual against diversion are not relevant the constitutional whatever inquiry, relevance they have may under the statute and regulations.
[Respondents do, however, to some point religious books the LEA improperly to be allowed loaned to several schools, and contend that they the monitoring pro- of the grams SEA and the Jefferson Parish LEA are insuffi- cient to such prevent errors. The evidence, however, estab- lishes just for the opposite, improper lending library books occurred —and was discovered and remedied —-before this litigation almost 15 began years In ago.18 other words, post, monitoring system worked. See at (O’Con- J., in nor, concurring judgment). Further, the violation by the LEA and the schools private and, was minor in the view of the SEA’s coordinator, inadvertent. See 122a. App. There were approximately book improper over requests (the three years 1982-1988 through 1984-1985 school years); these came requests from fewer than half of the 40 private schools then and the participating; cost of the 191 books persuasive evidence that Chapter audiovisual equipment was used in a Catholic theology school’s department. “[M]uch” of the equipment at purchased issue “was with Federal funds,” 205a, App. and those federal were, funds from the year on, 1982-1983school certainly almost Chapter funds, id., 210a; see id., 187a, ef. 189a. The diversion occurred over seven consecutive years, id., school 206a-207a, and the use of the equipment in the theology department was massive in years, each those outstripping every year use in departments other as science,math, such and foreign language, ibid. addition, In the dissent has documented likely diversion of computers. Post, at 910. 18The coordinator of the Jefferson Parish LEA ordered the books recalled sometime the summer or fall early and it appears that the schools had complied with the recall order the second week of December 162a, 1985. App. 80a-81a. Respondents filed suit in early *35 December. This self-correction is a key distinction between this instance of providing improper content and the evidence of actual diversion. See 17, n. supra. percent
amounted to “less than one of the total allocation years.” over all those Id., at 132a-133a.
The District Court found prescreening by the LEA requested coordinator of library pre- books was sufficient to statutory vent App. see violations, to Pet. for 107a, Cert. the Fifth Circuit did disagree. Further, noted, the monitoring system appears adequate catch those errors that do occur. unwilling We are to elevate scattered de statutory minimis violations, discovered and remedied the relevant authorities prior themselves any litigation, to such a level as to convert unobjectionable an otherwise parishwide program into a law that has the effect of advanc- ing religion.
IV In Chapter short, 2 satisfies both the pri- first and second mary Agostini. of criteria It therefore does not have advancing effect of religion. For same Chapter reason, 2 also reasonably “cannot be viewed as an endorsement of religion,” Agostini, 521 S.,U. at 235. Accordingly, we hold Chapter 2 is not a respecting law an establishment of religion. Jefferson Parish need not exclude schools program.19 from its Chapter To the extent that Meek Wolman holding, conflict with this we overrule them.
Our
regarding
conclusion
Meek and Wolman should come
surprise.
as no
early
The Court as
as Wolman itself left no
doubt that Meek and Allen were irreconcilable, see 433 U. S.,
at 251,
n.
and we
repeatedly
have
reaffirmed Allen since
(In
g., Agostini,
then,
e.
supra,
see,
fact,
231.
Meek, in
19Indeed, as petitioners observe, to require
exclusion
religious schools
from such a program would raise serious questions under the Free Exer
cise
See,
g.,
e. Church
Clause.
Lukumi
Aye,
Hialeah,
Babalu
Inc.
v.
(1993) (“At
520,532
508 U. S.
minimum,
protections
of the Free Exer
cise Clause pertain if the law at issue discriminates against some or all
religious beliefs”); Everson,
16;
cf Rosenberger v. Rector and
Visitors
Va.,
(1996)
Univ.
discussing the materials-and-equipment program, did not
even cite
368-366.)
Allen. See Meek, 421
S.,U.
Less
years
than three
after
explained
Wolman, we
that Meek did
despite
not,
appearances, hold that “all loans of secular in-
structional
equipment
material and
inescapably have the ef-
fect of direct advancement
religion.” Regan,
(internal quotation
661-662
omitted).
marks
Then, in Muel-
ler, we conceded that the aid at issue in Meek and Wolman
did
many
“resembl[e],
respects,”
in
the aid that
up-
we had
held in Everson and Allen. 463
S.,U.
at 393,
n. 3;
and
see
id., at 402,
10;
n.
(Marshall,
see also id., at 415
dissenting)
J.,
(viewing
incompatible
Allen as
with Meek and Wolman, and
the distinction between textbooks and other instructional
untenable”).
materials
“simply
recently, Agostini,
Most
rejecting
assumption
Ball's
that “all
aid that
directly assists the educational
function of
schools
Agostini,
is invalid,”
supra, at
necessarily
225,
rejected a
large portion (perhaps
395)
all, see Ball, 473
S.,U.
of the
reasoning of Meek and Wolman
invalidating
lending
materials
equipment,
and
for Ball
assumption
borrowed that
from
(Shared
those cases. See
The of the Fifth Circuit is reversed.
It is so ordered. Breyer Justice O’Connor, with whom Justice joins, in the concurring judgment. Congress
In
passed
Elementary
and Secondary
(1965 Act).
Education Act, 79 Stat. 27
Under Title I, Con-
gress provided monetary grants to States to address the
educationally
needs of
deprived children of low-incomefami-
lies. Under
Congress provided
II,
Title
further monetary
to States for
grants
resources,
text
acquisition
library
and other
books,
instructional materials for use
children
and teachers in
public
private elementary
secondary
schools. Since 1965,
has
the Title I
reauthorized
Congress
and Title II
several
Three Terms
programs
times.
we
ago,
Agostini
*37
Felton,
held in
v.
that
(1997),
I,
I—I I write because, separately view, the my an- plurality nounces rule of breadth for the evaluation unprecedented of Establishment Clause to school aid challenges government Reduced to its programs. essentials, the rule plurality's states that aid to government schools does not have the effect of so as the aid is advancing offered religion long on a neutral basis and the aid is secular in content. The also plurality rejects distinction direct between and indi- rect aid, and holds that the actual of diversion secular aid by school to the advancement of its mission of the permissible. Although expansive scope plural- rule is ity's two of the troubling, specific com- aspects opinion me to write pel First, separately. treatment plurality’s comes close neutrality to that faetor assigning singular in the importance future of Establishment adjudication Clause to challenges school aid Sec- government programs. ond, plurality’s actual diversion approval govern- ment aid to is in religious indoctrination tension with our precedents any unnecessary and, event, to decide the in- stant ease. example
The clearest plurality’s of the po- near-absolute sition with respect neutrality to is found following in its statement: the religious, irreligious,
“If areligious are all alike eligible governmental for no one aid, would conclude any particular indoctrination that recipient con- ducts has been done at the government. behest of the For attribution indoctrination is a question. relative government If the is offering assistance to recipients provide, who so speak, range a broad of indoctrina- tion, the thought itself is responsible any particular put point indoctrination. To differ- ently, government, if the seeking to legiti- further some mate purpose, secular offers aid on the same terms, regard religion, without adequately all who further *38 purpose, that then it say is fair to that aid going to a religious recipient only has effect the of furthering that (citation secular purpose.” omitted). Ante, at 809-810 I with agree Justice Souter the plurality, by taking such a stance, “appears to take evenhandedness neutrality and in practical terms it to a promote and single sufficient test for the establishment of school constitutionality aid.” Post, at 900 (dissenting opinion). quarrel
I do with plurality’s the recognition that neu trality is an important reason for upholding government-aid programs against Establishment challenges. Clause Our cases have neutrality described precisely in this mannei’,and emphasized we have program’s a neutrality repeatedly in our approving decisions various forms of g., school aid. e. See, Agostini, supra, at 228, 231-282; Zobrest v. Catalina Foot hills (1993); Dist., School U. S. Washington Witters v. ept. D Servs. Blind, 474 (1986); U. S. 481, 487-488 of for id., at 493 concurring (O’Connor, J., in part concurring and (1983). judgment); in Allen, Mueller v. 388, 397-399 U. S. government-aid Nevertheless, we have never held program passes solely constitutional muster because of the employs neutral it distributing criteria as a basis aid. example, Agostini, For in neutrality was one of several factors we determining considered City’s in that New York impermissible Title I did not have the of effect ad vancing religion. See (noting at 226-228 lack of religion by evidence of inculcation legal Title I instructors, requirement that Title supplemental I services regular be to curricula, and that no Title I funds reached schools’ coffers). given Agostini Indeed, that the aid had secular content was wholly on distributed basis neutral criteria, our consideration of additional factors demonstrates plurality’s that the accurately rule does not describe our re cent jurisprudence. Establishment Clause See Zobrest, also swpra, (noting government at 10,12-13 that no funds reached religious school’scoffers, aid did not expense relieve school of it otherwise would have assumed, was not distrib child). uted to school but provides comprehensive review of our
Justice Souter Establishment Clause cases on aid institutions that is explanation useful for its of the various ways in which we used “neutrality” have the term in our post, decisions. See at 878-883. if Even we one time “neutrality” used the term descriptive in a sense to refer to programs those aid requisite characterized equipoise support between religion religion, and antagonism Jus- convincingly discussion demonstrates that tice Souter’s meaning in the evolution jurisprudence *39 term our is cause to hesitate equating neutrality before the of recent neutrality decisions with the of I old. As have previously explained, neutrality important, by is it is but the no means history precedent “axiom in the the of Establish- ment Rosenberger Clause.” v. Rector and Visitors Univ. of (1995) Va., 515 U. (concurring S. opinion). Thus, of I with agree Justice Souter’s conclusion that our “most use recent of to ‘neutrality5 refer to generality or evenhand- edness distribution ... in relevant whether a judging benefit scheme so characterized should be seen as aiding sectarian school’s mission, religious but this is not neutrality alone sufficient the aid qualify Post, as constitutional.” at 883-884. disagree
I also
with
plurality’s
conclusion that actual
government
diversion of
aid
indoctrination is
consistent
with
Establishment Clause.
ante,
See
at 820-
Although “[o]ur
825.
eases
permitted
have
govern-
some
funding
ment
of secular
performed by
functions
or-
sectarian
ganizations,” our
“provide
decisions
precedent
no
for the use
public
funds
to finance
Rosenberger,
activities.”
supra, at 847
concurring).
(O’Connor, J.,
At least two of
the decisions at the
today’s
heart of
case demonstrate that
long
we have
been concerned that
government
secular
aid
not be diverted to the
religion.
advancement of
In both
Agostini, our most recent school aid case, and Board
Ed.
Central School Dist. No. 1 v. Allen,
(1968),
392 U. S.
we rested our approval of the
programs
relevant
part
on the fact that the aid had not been used to advance the
religious missions of
recipient
Agostini,
schools. See
(“[N]o
supra, at 226-227
evidence has ever
shown that
New York City Title I instructor
teaching
parochial
on
premises
school
attempted to
religion
students”);
inculcate
supra,
Allen,
at 248 (“Nothing in this
supports
record
proposition that all textbooks, whether they deal with math-
ematics, physics, foreign languages, history, or literature, are
parochial
used
schools to
religion”).
teach
Of course,
our focus on the lack of such evidence would have been en-
tirely unnecessary if we had believed that the Establishment
permits
Clause
the actual diversion of
secular
indoctrination. Our decision in Bowen v.
Kendrick,
(1988),
The holding bases its per- actual diversion missible on Witters and Zobrest. Ante, at 820-821. Those decisions, significant however, rested on a premise factual missing from ease, this as well as majority from the of cases thus far considered involving Court Establishment challenges Clause programs. school aid Specifically, we decided Witters and Zobrest on the understanding that the provided aid directly was to the individual student who, in turn, made the choice put where that aid to use. See Witters, S.,U. at 488; Zobrest, 609 U. S., 12. Ac- cordingly, approval our of the aid in both eases relied significant extent on the “[a]ny fact that aid . . . that ulti- mately flows to institutions only does so as a result genuinely the independent private recip- choices of ients.” supra, (“[A] Witters, at 487; see Zobrest, supra, at 10 government-paid interpreter present will be in a sectarian school as a result of private decision of individual parents”). This characteristic of programs both them made less like a subsidy, direct impermissible which would be under the Establishment Clause, and more gov- akin to the ernment issuing paycheck employee to an who, in turn, portion donates a of that cheek to a institution. g., e. See, supra, Witters, at 486-487; see also Rosenberger, supra, (O’Connor, at 848 Witters). J., concurring) (discussing
Recognizing plurality this distinction, nevertheless *41 finds Witters and Zobrest—to the extent those decisions might permit government the use of aid religious pur- poses involving in ease per-capita- neutral, a —relevant program. aid ante, See at Like 880-831. Justice Souter, I do not believe we per-eapita-aid pro- should treat a gram private-choice the as same the true programs consid- ered in post, Witters Zobrest. See First, when 902. government provides the directly aid to the student benefi- ciary, that religious can yet student attend a school and re- tain government control over whether the secular aid will be applied religious toward the education. The fact that aid religious flows the school is and used for the advancement religion of wholly is dependent therefore the on student’s private Rosenberger, decision. See U. S., 515 (O’Con- 848 concurring) (discussing importance private of choice nor, J., Witters)', (“[T]he in Witters, 474 U. S., at 488 fact that aid goes to individuals means support that the decision to reli- gious by is made education by State”); individual, id., at 493 concurring part in concurring J., (O’Connor, (“The judgment) in religion aid to at issue here is the result petitioner’s choice”). of private It is for this reason that in Agostini we relied on Witters reject and.Zobrest to the rule government “that all directly aid that assists the educational religious function of schools is yet invalid,” at U. 225, approval rested also our City’s program New York I Title part on the lack of evidence of actual id., diversion, 226-227.
Second, I believe the per capita distinction between program school aid private-choice and a program true sig- is purposes nificant for g., Lynch See, endorsement. e. v. Donnelly, U. S. (1984) J., concur- (O’Connor, ring). public perception, In government terms of program religious direct aid to schools based on the number of stu- attending dents each school meaningfully differs from the government distributing directly aid to individual students who, turn, decide to use aid at religious the same schools. In the example, former if the school uses the aid religion to inculcate in its students, it is reasonable say government that the has message communicated a endorsement. Because the sup- indoctrination is ported by government assistance, the reasonable observer naturally perceive would government support for the religion. advancement of That the amount of aid received the school is based on the school’senroll- separate ment does not from the endorse- ment of the message. The aid formula does not— and could not—indicate to a reasonable observer that the religion inculcation of only by endorsed the individuals *42 attending religious the school,who affirmatively each choose to direct the government secular aid to the school and its religious mission. No such choices have been made. In government contrast, when supports aid a religious school’s mission independent because of decisions made nu- merous guide individuals to their secular aid to that school, “[n]oreasonable likely observer is to draw from the facts ... an inference that the State itself is endorsing religious a practice or belief.” supra, Witters, at 493 (O’Connor, J., concurring in part and concurring judgment). Rather, endorsement religious of the message is reasonably attrib- uted to the individuals who select path the of the aid.
Finally, the distinction between per-capita-aid private-choice and a true program important is when consid- ering aid that consists of monetary direct subsidies. This “recognized Court special has dangers Establishment Clause government where the money makes payments direct sectarian institutions.” Rosenberger, S., U. see 842; ibid, cases). also (collecting If, plurality the contends, per-capita-aid program is identical in relevant constitutional respects private-choice to a true program, then there no reason that, plurality’s under the reasoning, precluded should be providing from money direct payments churches) organizations (including on based persons number of belonging organization. to each And, be- cause permissible actual plurality’s diversion is under the holding, participating religious organizations (including churches) support could use that aid to indoctrina- tion. To be plurality actually sure, the does hold that theory its money payments. extends to direct ante, See at 818-820. That omission, is of however, little comfort. In logic its specific advisory well as its language, ante, see —as plurality opinion 819-820, n. ap- 8—the foreshadows the proval of monetary direct organiza- subsidies to they tions, even money when use the to advance their reli- gious objectives.
Our school pose questions cases often difficult neutrality intersection of principles and no-aid and there- defy fore simple categorization under either rule. As I “[rjesolution explained Rosenberger, depends instead on the hard judging sifting task of through the details and — determining challenged program whether the offends the judgment Establishment requires Clause. Such courts to lines, draw quite particular sometimes fine, based on the facts of each ease.” (concurring opinion). S.,U. at 847 Agostini represents attempt gen- our most recent to devise a eral approaching framework questions concerning neu- tral programs. Agostini school aid also concerned an Es- tablishment challenge *43 Clause program closely to a school aid related to the one at issue here. For these as well reasons, my disagreement as plurality’s approach, with the I would today’s decide by applying case criteria set forth Agostini.
II Agostini, In reexamining after jurisprudence our since School Rapids (1985), Dist. Ball, Grand v. 473 U. S. of explained we general principles that the used to determine government whether aid violates the Establishment Clause have largely remained unchanged. Thus, 222. government we still ask purpose “whether acted with the advancing inhibiting religion” or and “whether the aid has advancing the ‘effect’of inhibiting or religion.” Id., 222- 223. Agostini, We also concluded spe- however, that the cific criteria used to government determine whether aid has impermissible an changed. effect had Id., Looking at 223. recently to our cases, decided we primary articulated three guide criteria to government- the determination whether a program (1) impermissibly religion: advances whether (2) governmental the aid results in indoctrination, whether program the aid recipients by defines its reference to reli- (3) gion, and whether the aid creates an entangle- excessive ment between religion. Id., at 234. Fi- nally, we noted that the same criteria could be reviewed to government-aid determine whether program constitutes an endorsement religion. Id., at 235.
Respondents question neither purpose secular of the (Title II) Chapter program nor contend that it creates an (Due entanglement. excessive to its Chap- denomination as ter 2 of the Education Improvement Consolidation and Act of 1981,95 parties Stat. refer to the 1965Act’s Title program, II by as subsequent legislation, modified “Chap- same.) ter 2.” For ease of reference, I will do the Accord- ingly, purposes deciding Chapter applied whether 2, as in Jefferson Parish, Louisiana, violates the Establishment Clause, need we ask whether the results in governmental indoctrination recipients or defines its ref- religion. erence to
Taking the inquiry second first, it is Chapter clear that does not recipients by define aid religion. reference to In Agostini, explained scrutiny we of the manner in which government-aid program identifies recipients its impor- tant might because “the criteria themselves have effect advancing religion by creating a financial incentive to un- dertake indoctrination.” 521 S.,U. 231. We then clarified that this financial incentive is present
“where the aid is allocated on the basis of neutral, secular religion, criteria that neither favor nor disfavor and is made available to both and seeular on a beneficiaries nondiseriminatory Chapter basis.” Ibid. Under 2, the Secretary of Education allocates funds to the States based on each school-age population. State’s share of the Nation’s 7811(b). § (SEA) agency U. S. C. The state educational recipient of each State, in turn, must distribute the State’s (LEA’s) Chapter 2 agencies funds to local educational “according to the public relative enrollments pri- in and nonprofit vate, schools within the school districts of such agencies,” adjusted to take into account those LEA’s “which greatest have the percentages numbers or of children whose imposes higher average education per than cost child.” 7312(a). § expend The LEA must then those funds on “inno- programs” designed vative improve assistance student 7351(b). § generally achievement. The requires statute that an “equitable LEA participation” ensure the of children private nonprofit enrolled elementary in secondary §7372(a)(1), specifically schools, mandates that all LEA expenditures on private behalf of children enrolled in schools (consistent equal “be served) with the number of children to be expenditures programs ... for children en- 7372(b). public § rolled in the schools of the [LEA],” As statutory provisions these make Chapter wholly clear, 2 uses neutral and secular criteria to allocate aid to students enrolled in and secular schools As alike. a result, it creates no financial incentive to undertake indoctrination.
Agostini requires next us to ask Chapter whether 2 “re- sult[s] governmental indoctrination.” 521 U. at 234. complex Because this inquiry is more under our case law, it is briefly useful first to review the basis for our decision Agostini City’s York New Title I did not re- governmental sult in indoctrination. program, Under that public-school provided teachers Title I eligible instruction to *45 private students on premises school during regular school hours. years Twelve Aguilar in earlier, v. Felton, 473 U. S. (1985), we had held the City same program New York In Ball, unconstitutional. companion Aguilar, case to we also held that a similar Rapids, in Grand Michigan, violated the Constitution. Our Aguilar decisions in and Ball were both presumption, based on a large drawn in part from Meek, see 421 U. S., public-school 367-373, that instructors who teach secular classes on campuses of religious schools inevitably will religion inculcate in their students. Agostini,
In recognized “[o]ur we that more recent eases [had] undermined assumptions upon which Ball and Aguilar relied.” at 222. explained First, we that the Court had since abandoned “the presumption erected in Meek and Ball placement that the public of employees on parochial grounds school inevitably results impermis sible effect state-sponsored indoctrination or constitutes a symbolic government union between religion.” Id., at 223. relying Rather, on Zobrest, explained we that in the absence of showing evidence that teachers actually were using the Title I aid to religion, inculcate presume we would that the instructors comply would program’s with the secu lar Agostini, restrictions. See 521 U. S., at 223-224, 226- 227. The Title I required services were by statute to be “ ” 'secular, neutral, and nonideological.’ Id., (quoting §6321(a)(2)). 20U.S.C.
Second, we noted that the Court “departed had from the rule relied on in government Ball that all directly that assists the educational function schools is in- Agostini, valid.” supra, at 225. Relying on Witters Zobrest, we noted our cases had taken a more forgiving view of neutral programs that make aid avail- generally able regard without to the or nonreli- gious character of recipient Agostini, school. See U. S., at 225-226. respect With specific Title I pro-
gram issue, we noted precluded several factors that us finding impermissible from an financing religious indoctri- “provided nation: the aid was to students at whatever school they choose “by to attend,” the services supple- were law regular mental to the curricula” of the schools, benefited “[n]oTitle I funds ever reach the coffers of schools,” and there was no evidence Title I having “at- instructors tempted religion to inculcate Id., students.” at 226-228. Relying on the same factors, we also concluded the New City program York “reasonably could not be viewed as an *46 religion.” endorsement Although Id., at 235. we found it relevant that Title I services provided could not be on a explained basis, sehoolwide we also likely that this fact was sufficient necessary rather than a program’s condition of the constitutionality. “willing We were not to conclude that the constitutionality program of an aid depends on the number of sectarian school happen students who to receive the other- wise Id., neutral aid.” at 229. Chapter
The program at issue here bears the same hall- City marks of the New York I program Title that we found important Agostini. explained First, as Chapter above, 2 aid is distributed on the basis of neutral, secular criteria. The aid is available to regardless assist students of whether they public private attend nonprofit or religious schools. Second, requires participating statute SEA’s and LEA’s to use Chapter and allocate supplement funds to funds otherwise religious available to a school. 20 U. S. C. 7371(b). § Chapter 2 funds must in no ease be used to supplant funds from non-Federal sources. Ibid. Third, no Chapter 2 funds ever reach the coffers of a school. Like the I Title Agostini, considered Chapter all 2 funds by are public agencies controlled SEA’s and —the §7372(c)(1). purchase LEA’s. The LEA’s instructional and educational materials and then lend those public to materials (b)(2). private §§7351(a), and schools. See respect With lending private Chapter schools under statute specifically provides that the public relevant agency must retain title to the materials equipment. 7372(c)(1). § and Together supplantation with the provision restriction, this ensures that reap schools no financial benefit by virtue receiving loans of materials equipment. and Finally, the provides statute that all Chapter 2 materials equipment must be “secular, neutral, and nonideologi- §7372(a)(1). cal.” That restriction is reinforced a fur- ther statutory prohibition on “the making any payment... for worship §8897. or instruction.” Although respondents claim Chapter 2 aid has been diverted to religious instruction, that evidence is de minimis, I explain greater length below. See infra, 864-867.
Respondents Agostini contend that is distinguishable, pointing to the distinct character of the aid program consid- ered there. See Brief for Respondents Agostini, 44-47. In federal paid funds public-school for teachers provide secu- lar instruction to eligible children premises on the of their religious schools. Here, in contrast, federal pay funds instructional materials equipment *47 that LEA’s lend to re- ligious schools for use those schools’own teachers in their classes. Because we held programs similar unconstitutional in Meek and respondents Wolman, contend that those deci- sions, and Agostini, are controlling. g., See, e. Brief Respondents 11,22-25. Like respondents, Justice Souter also relies on Meek and in finding Wolman the character the Chapter 2 aid constitutionally problematic. post, See at 893, 903.
At the they time were decided, Meek and Wolman created inexplicable an rift within our juris- Establishment Clause prudence 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
Establishment S., Clause. 392 U. explained 238. We “merely [made] that the statute available to all children the general program benefits of a to lend school boohs free of charge,” ownership that the State retained of the textbooks, religious and that schools received no financial benefit from program. the specifically rejected Id., at 243-244. We the contrary argument that the statute violated the Establish- ment Clause because textbooks teaching are to critical process, religious which employed in a school is to inculcate religion. Id., at 245-248.
In Meek and holding Wolman, Allen, we adhered to lending programs textbook in issue each case did not violate the Establishment Clause. Meek, 421 S., See U. (plurality opinion); at 359-362 Wolman, at 236- (plurality opinion). At the time, same however, we held in lending both eases that of instructional materials equipment religious schools was unconstitutional. supra, Meek, See supra, 362-366; Wolman, at 248-251. We reasoned that, because the receiving schools equipment materials and pervasively were sectarian, as- support sistance in of the schools’educational missions would inevitably impermissible have the advancing effect of reli- gion. example, For explained: Meek we
“[I]t ignore simply reality would attempt separate secular educational predominantly functions from the performed by many role Pennsylvania’s elementary church-related secondary schools and to [the then statute] channeling characterize aid to the secular providing without direct aid to the sectarian. though Even purposes, earmarked for secular 'when it flows to an religion institution which pervasive is so portion that a substantial of its functions are subsumed in the impermissible mission,’ state aid has primary advancing religion.” effect of S.,U. *48 at (quoting 365-366 Hunt v. McNair, 413 734, U. S. 743 (1973)).
Thus, we held that the aid “necessarily results in to the aid enterprise sectarian school as a whole,” “ines- capably results in the direct and substantial advancement of religious activity.” supra, added). Meek, (emphases Similarly, in Wolman, we concluded “[i]n that, view of the impossibility of separating the secular education function from the sectarian, the state inevitably part in in flows support religious of the role of the schools.” 433 S.,U. added). (emphasis
For whatever reason, the Court willing was not to extend presumption this religious inevitable indoctrination to school aid when it instead consisted of textbooks lent free of charge. example, For despite in Meek, identifying the reli- gious schools’ secular educational functions and missions inextricably intertwined, 421 S.,U. upheld
Court lending textbook program because “the in record the case ..., like the record in Allen, contains no suggestion that religious textbooks bewill lent or that the provided books will be used anything for purely other than purposes,” (citation secular omitted). id., at 361-362 Ac- cordingly, while the Court willing was to apply an irrebutta- presumption ble that secular instructional materials and equipment would be diverted to use indoctrina- required tion, it evidence that religious schools were divert- ing secular textbooks to instruction. inconsistency
The between the two strands of the Court’s jurisprudence go did not unnoticed, as Justices on both sides of the Meek and Wolman decisions relied on the contradic tion to support respective their arguments. g., See, e. Meek, (Brennan, at J., concurring part in and dissent (“[W]hat ing part) in says Court of the instructional materials equipment may perhaps be said even more (citation accurately of the omitted)); textbooks” id., at 390 concurring J., judgment part and dissent (Rehnquist, (“The part) ing in of majority failure justify the differ ing approaches to textbooks and instructional materials and
equipment in respect the above symptomatic is of its failure even to attempt distinguish to the... program, textbook loan plurality which upholds, the from the... instructional mate- equipment rials and unconstitutional”). program, loan which majority the finds irrationality
The of this distinction is patent. As one Member of our Court has noted, it has may meant that “a State parochial lend to school children geography textbooks maps that contain of the United States, but the may State maps not lend of the United States for geography use in class.” Wallace v. Jaffree, S. (1985) (footnotes omitted). dissenting) J., (Rehnquist, technology’s Indeed, advance since the Allen, Meek, and Wolman decisions has made the distinction between textbooks and instructional equipment materials and more suspect. In case, this for example, we are asked to draw a constitutional line between lending textbooks and lend- ing computers. computers Because constitute instructional equipment, adherence to Meek and Wolman require would the exclusion computers any government from school aid program that religious includes computers schools. Yet, are necessary as now years were schoolbooks ago, they play a somewhat similar role in the process. educational That Allen, Meek, and permit Wolman would the constitu- tionality of a school aid to turn on whether the aid took form of a computer rather than a book further re- veals inconsistency logic. inherent in their
Respondents insist that there a is reasoned basis under the Establishment Clause for the distinction text- between books and instructional equipment. materials and They claim that presumption religious schools will use instructional equipment materials to religion inculcate is sound because such equipment, materials and unlike text- books, reasonably are religious divertible For uses. example, no matter what government secular criteria the employs selecting projector film lend to a school, school always officials projector can divert that to re- ligious Respondents instruction. therefore claim prohibits Establishment Clause giving from lending or aid reasonably schools when that divertible to uses. g., Respondents e. See, Brief for also states that the divertibility of 11,35. Justice Souter *50 government secular important aid is an consideration under the although Establishment apparently Clause, he would not it constitutionally the ascribe determinative status that re- spondents post, do. See at 885, 890-895. reject respondents’
I would proposed divertibility rule. respondents First, precedent cite no of this Court that would require only possible it. The precedential support direct single such a rule is a sentence contained in a footnote from our Wolman There, decision. the Court described Allen as having “premised been on the view that the educational con- tent of something textbooks is that can be ascertained in advance and cannot be diverted to sectarian uses.” Wol- supra, man, at 251,n. 18. To the simple extent descrip- this tion of certainly Allen is even it correct, does not constitute an holding actual that the prohibits Establishment Clause the lending any from religious divertible aid to explained schools. Rather, as above, the Wolman Court holding based its invalidating lending the of instructional equipment materials and religious schools on the rationale adopted in Meek—that the secular educational function of a religious inseparable school religious from its mission. See Wolman, at 250. anything, Indeed, if the Wol- man footnote irrationality confirms the of the distinction be- tween textbooks and instructional equipment. materials and After the Wolman Court acknowledged holding that its with respect to instructional equipment materials was in ten- sion with explained the Allen, Court the continuing validity solely of Allen on basis stare decisis: “Board Educa- tion v. Allen has law, remained and we now follow as a mat- ter of stare principle decisis the that restriction of textbooks provided public those schools is sufficient to ensure the books will religious purposes.” not be used for supra,
Wolman, at 252, n. Thus, 18. the Wolman Court justified never the inconsistent it treatment accorded lending lending of textbooks and the of instructional equipment materials and based on the items’ reasonable divertibility. attempt divertibility to defend the
Justice Souter’s ra- tionale as a viable in our distinction Establishment Clause jurisprudence fares no better. For Justice secu- Souter, lar presents school aid problems constitutional when actually it is diverted to ends, but also when it sim- ply capacity has presents for, possibility or of, such g., post, diversion. e. See, (discussing at 893 “susceptibility [of ends”). supplies] secular to the service of Thus, explains he the Allen, Meek, and Wolman decisions as fol- lows: “While the textbooks had known and fixed secular readily content not divertible to teaching purposes, *51 adaptable materials did not.” Post, at 893-894. This view would surprise have come as a to the Court in Meek, expressly which conceded that “the material equipment and that are subjects of the loan . . . are ‘self-poliefing],in starting that nonideological secular, they and neutral, will change not in use.’” 421 (quoting S., U. at 365 Meek v. Pit- (ED 1974)). tenger, Supp. F. Pa. given Indeed, the nature of the instructional materials considered in Meek Wolman, comprehend isit difficult to divertibility a how rationale explained could have the decisions. The statutes at issue in those lending cases “periodicals, authorized the photographs, maps, recordings, charts, [and] sound films,” supra, Meek, globes,” 355, and “maps and supra, Wolman, plausible 249. There no saying basis for that these items are somehow more than given divertible a textbook that each of the above items, like a a textbook, has fixed and ascertainable content. any
In event, even if Meek and Wolman had articulated divertibility urged by respondents rationale and Justice reject I would still it for a more fundamental rea- Souter, simply, son. Stated theory provide does logical a distinction lending between the lending textbooks and the of instructional equipment. materials and An educator can virtually any use instructional tool, whether it has ascertain- able content or religious not, to teach a message. In this respect, agree I plurality with the that “it is hard imagine any book that could not, in moderately even skilled hands, serve to religious illustrate message.” a Ante, at 828. In today’s example, case, for we are asked to draw a constitu- tional distinction lending between a textbook lending library a book. try justifying Justice Souter’s distinction absurdity demonstrates the on which such a difference must rest. He states “[although library books, like textbooks, have religious fixed content, teachers assign can library secular books for critique.” Regardless Post, at 903. of whether that explanation is (for even correct a surely student given could be a assignment too), in connection with a textbook hardly it is distinction on which constitutional law should turn. More- if ability over, the mere of a teacher to devise a involving lesson question the secular aid in suffices to hold provision of that aid it unconstitutional, is difficult to discern limiting principle divertibility to the rule. For example, publicly even a financed apparently lunch would be unconstitutional divertibility under a rationale because religious school conceivably officials could use the lunch lead the students in blessing over the bread. See Brief for Avi Chai Foundation as Amicus Curiae 18. *52 the
To extent Justice believes several related Souter Establishment Clause require application decisions of a di- vertibility rule in the context of this respectfully ease, I dis- agree. is correct to note our continued Justice Souter recognition the special of dangers associated with direct money grants post, institutions. See at 890-893. It does not follow,however, we that should treat as eonstitu-
tionally suspect any form of secular
might
aid that
conceiv
ably be
diverted to a
use. As the cases Justice
cites demonstrate, our concern with
monetary
Souter
direct
aid is based
just
on more than
diversion.
In
fact,
most
important
according special
reason for
treatment
to direct
money grants is that this form
precariously
falls
close
original object
to the
of the
prohibi
Establishment Clause's
g.,
tion. See, e. Walz v.
City
Tax Comm’n
New York,
(1970)(“[F]or
IV
divertibility
explain
Because
fails
the distinction our
cases have drawn between textbooks and instructional mate-
rials
equipment,
there
question
remains the
of which of
the two irreconcilable
strands
our Establishment Clause
jurisprudence we should now follow. Between
two,
I would adhere to the
applied
rule that we have
in the con-
text of
lending programs:
textbook
To establish a First
plaintiffs
Amendment
prove
violation,
must
that the aid in
question actually
or
is,
has
been,
purposes.
used for
See Meek, 421 U.
atS.,
361-362; Allen, S.,U.
at 248.
Just
Agostini
as we held in
that our more recent cases had
undermined
assumptions
underlying
Aguilar,
Ball and
I would now
Agostini
hold that
on
eases which it
relied have undermined the assumptions underlying Meek
and Wolman.
be
Agostini only
To
sure,
spe-
addressed the
cific presumption
public-school
employees teaching on
premises
inevitably
schools would
inculcate
religion.
I
Nevertheless,
believe
rejec-
that our definitive
presumption
tion of that
also stood
strongly
for—or at least
to—the
pointed
broader
that such
proposition
presumptions
*54
of
indoctrination are
religious
when
normally inappropriate
neutral school aid
evaluating
under the
programs
Establish-
Agostini,
ment Clause.
In
we repeatedly
that
emphasized
it would be
to
inappropriate
inculcation of
presume
religion;
rather, plaintiffs
an
raising
Establishment Clause challenge
must
evidence that
present
the
aid in
government
question
has
in
resulted
religious indoctrination.
See
Respondents be should limited to its facts, and point to the specifically statement following from my separate opinion Ball as the basis for retaining in presumption religious inculcation for mate- instructional
rials and equipment:
“When full-time school parochial teachers receive public funds to teach secular courses to their school parochial students under parochial school I supervision, that agree the has the program and perceived actual effect ad- the vancing aims the religious church-related schools. This the particularly where, case here, as religion per- vades the curriculum and the teachers are accustomed to bring religion in play everything teach.” they S.,U. at 399-400 in in (concurring judgment part dissenting part).
Respondents Agostini note that in we did not overrule that portion holding Community of Ball Education program, unconstitutional. paid Under that religious operate public school teachers to part-time by teaching at their teachers schools secular classes at the regular sehoolday. conclusion Ball, 478 S.,U. Relying majority opinion 376-377. on my both the separate opinion respondents in Ball, therefore contend that presume we must school teachers will incul- religion cate they their argue, students. If that is so, we presume must also school teachers will un- be able follow secular restrictions on use of instructional materials and equipment lent govern- their schools *55 Respondents ment. See for Brief 26-29. disagree,
I proposition however, that latter the follows from holding the former. First, as our its Allen and reaf- firmance in Meek and Wolman the demonstrate, Court’s will- ingness to religious assume that schoolinstructors will incul- religion cate presume has not caused us to also that such instructors will be unable to follow secular restrictions on the use of I similarly textbooks. would reject any pre- such sumption regarding the use of instructional materials and equipment. religious aWhen school receives or textbooks instructional equipment materials and lent with secular re- the strictions, school’steachers need not refrain from teach- ing religion altogether. only Rather, the instructors need any that religious ensure teaching such is done without the by instructional provided government. aids the al- We have ways willing religious been to assume that school instructors by can abide such restrictions when the aid consists text- books, which Justice “surely Brennan described as the heart tools supra, of.. . education.” (concurring Meek, at in. part dissenting part). assumption The same should extend to instructional equipment. materials and my
For position the same reason, distinguishable. in Ball is government paid religious There, school instructors to teach supplemental classes those during offered normal sehoolday. In that I willing presume context, was religious that the school teacher throughout who works day to advance the school’s mission also would do so, at least to during some extent, the supplemental classes provided at the end day. of the government Because the entirety financed the any classes, such indoctri- taking place nation directly therein would be attributable to government. In the instant ease, Chapter because the 2 aid only teaching concerns tools supple- must remain mentary, the portion constitutes of the teacher’s educational during efforts single class. In this context, 1 find it easier to believe that a school teacher can abide the secular placed restrictions on the I assistance. presume therefore would not Chapter that the 2 aid will perceived advance, or be to advance, the school's religious mission.
V Respondents do rest, however, on divertibility their argument alone. they Rather, also contend that the evi- dence respecting the actual administration Chapter 2 in Jefferson Parish demonstrates that the violated the Establishment Clause. respondents First, claim program’s safeguards are insufficient to uncover instances of actual diversion. Brief for Respondents 87, 42-43, 45- *56 47. they Second, contend that the shows record that some religious schools in Jefferson may Parish have used their Chapter 2 support aid (i. religious education e., that they aid). diverted the Id., at 36-87. respondents Third, highlight Chapter violations of 2’s secular content restric- tions. at Id., 39-41. they And, finally, note isolated exam- ples potential Chapter violations of supplantation 2’s re- striction. Id., at 43-44. Based on the evidence underlying the first and second claims, the plurality appears to contend that Chapter the 2 program can upheld be only if actual government diversion of aid to the religion advancement of
861 permissible under the ante, Establishment Clause. See Relying at underlying 832-8S4. on the evidence all but the last of the above claims, Justice that the concludes Souter Chapter 2 program, applied in Jefferson Parish, violated the post, Establishment Clause. See I 902-910. dis- agree plurality with both the and Justice The Souter. by respondents limited during years evidence amassed 4 (which discovery began approximately years ago) is at best de minimis and therefore insufficient to the affect con- inquiry. stitutional plurality
The and Justice primary direct the Souter arguments thrust of alleged their inadequacy the of the program’s safeguards. Respondents, plurality, and Jus- appear proceed premise all from the that, so tice Souter long as presents actual diversion problem, a constitutional must have a capable failsafe mechanism detecting any rejected instance of very diversion. We that assumption, Agostini. explained however, There, we that because had assumption we “abandoned the properly that public employees instructed discharge will fail to their duties faithfully, we must assumption also perva- discard the monitoring sive of Title I required.” teachers is S.,U. (emphasis original). I Because believe that the Court should presumption abandon adopted in Meek and respecting Wolman the use of instructional materials and equipment by religious school I teachers, see no constitu- tional pervasive need for monitoring Chapter under the program.
The safeguards employed are constitution- ally At sufficient. the federal level, the statute limits aid to “secular, nonideological neutral, and services, materials, and equipment,” § 7372(a)(1); requires S. C.
supplement supplant and not funds from non-Federal §7371(b); sources, prohibits “any payment... for reli- gious § worship or instruction,” 8897. At the state level, the (the Department
Louisiana of Education relevant SEA for *57 862
Louisiana) all requires nonpublie schools to submit signed assurances that will use 2 they Chapter only supple- ment and not to supplant funds, non-Federal and that the instructional and materials “will equipment be used for secular, neutral and nonideological 260a- purposes.” App. 261a; see also id., at 120a. there is some Although dispute the concerning nature of mandatory these assurances, Dan Lewis, the director of Louisiana’s 2 Chapter testi- program, fied that all of the State’s schools had nonpublic thus far been willing the sign assurances, and that the State retained to cut power off aid to school that breached an assur- Id., at 122a-123a. The Louisiana SEA also conducts ance. visits monitoring to each of the State’s LEA’s —and one or two of the schools nonpublie covered relevant LEA— once Id., three every years. 95a-96a. In addition to other tasks on performed such visits, SEA representatives conduct a random review of a school’s books for library reli- Id., gious content. at 99a.
theAt level, local the Jefferson Parish Public School Sys- (JPPSS) tem requires nonpublie schools seeking Chapter aid to submit applications, with complete specific project Id., plans, at 127a; id., at 194a-203a (sample approval. application). The JPPSS then conducts annual monitoring visits to each of the nonpublie schools receiving Chapter Id., at 141a-142a. On each aid. visit, JPPSS representa- tive meets with a contact person from the school nonpublic with reviews that person school’s project plan the manner in which the school has used the 2 mate- Chapter rials and Id., equipment its support plan. at 142a, 149a. The JPPSS representative also reminds the contact person of the prohibition on the use of 2 aid for Chapter id., purposes, 149a, and conducts a random of the sample school’s Chapter materials and to ensure equipment are they appropriately labeled and school has main- tained a record of their id., usage, 142a-144a. (Although and Justice plurality claim that compliance Souter *58 labeling requirement haphazard, with was cite both monitoring a statewide report specific that includes no find- (cit- ings respect with to Ante, Jefferson at Parish. 832-833 (same).) 113a); ing App. post, Finally, at 906 the JPPSS representative randomly library nonpublic selects books the through Chapter school has acquired 2 and reviews their they comply content to ensure that program’s with the sec- ular App. content monitoring restriction. 210a. If the does satisfy representative, not the JPPSS another visit is sched- Apart Id., uled. from conducting monitoring 151a-152a. Chapter visits, the requests reviews partici- JPPSS filed pating nonpublie part process, schools. As of this a JPPSS employee requested examines the titles library books and (or rejects any suggests) book whose title religious reveals subject Id., at matter. 137a-138a. 135a, As the above de- scription monitoring process of the JPPSS should clear, make report citation of finding a statewide Justice Souter’s monitoring lack of in some Louisiana LEA’s is irrelevant as far as post, (quot- Parish is Jefferson concerned. See at 906 111a). ing App. Respondents, plurality, and Justice all fault Souter safeguards primarily they above-described de- because
pend good on the participating faith of religious school offi- cials. example, plurality For both the and Justice Souter repeatedly testimony by parish cite state and officials ac- knowledging safeguards depend that the ato extent certain religious on the self-reporting schools’ that, therefore, way there is no say for the State or Jefferson Parish to de- finitively Chapter that no is pur- diverted poses. g., See, ante, post, 832-833, e. n. 15; 906-907. These prove admissions, however, do safeguards that the inadequate. are To that find actual diversion flourish, will presume part one must bad faith on of the report school officialswho regarding the JPPSS monitors Chapter disagree the use of 2 aid. I plurality with the point on this entirely and believe is that it Justice Souter proper presume these school officials will act in good faith. That presumption especially in this appropriate ease, since there is no proof school officials have breached their schools’ assurances or failed to tell gov- Tilton, ernment officials the truth. Cf. S.,U. at 679 (“A possibility always exists, of course, that the legitimate objectives law or legislative be sub- may verted by conscious or lax design But enforcement.... judi- cial concern about these possibilities cannot, alone, standing *59 warrant down a striking statute unconstitutional”).
The evidence proffered by and relied on respondents, the plurality and Justice concerning actual diver- Souter, sion of aid in 2 Chapter Jefferson Parish is de minimis. Re- first spondents cite.the statement following from a Jefferson Parish school teacher: “Audio-visual materials are a very necessary tool used enjoyable when teaching young children. As a second I grade teacher them use in all sub- and see a jects very result.” positive 108a. App. Respond- ents’ other evidence consists aof chart one concerning Jefferson Parish religious school, which shows that school’s theology a department was significant user audio- visual equipment. id., See at 206a-208a. an ac- Although letter companying indicates that much of the school’s equip- ment was purchased with federal funds, id., at 205a, the chart does not a provide breakdown identifying specific 2 Chapter usage. Indeed, unless we are to relieve respond- ents of their burden and evidentiary presume violation 2, we Chapter should assume that the school used its own in the equipment theology department and the Chapter 2 equipment elsewhere. The more basic point, however, is that neither piece evidence demonstrates that Chapter 2 aid was actually diverted to religious education. At most, it proves possibility that, out of the more than 40 nonpub- lic schools in Jefferson Parish participating 2, aid Chapter have may been diverted in one school’s class second-grade and another school’s theology department.
865 plurality’s The insistence that this evidence is somehow flatly willingness substantial its disregard contradicts sim- ilarly insignificant Chapter evidence of violations of sup- 2’s plantation and secular content restrictions. ante, See (finding n. 7 statutory no “material sup- violation” of the restriction); plantation ante, 835 (characterizing violations of secular content restriction as “scattered” and “de mini- mis”). As explain I shall below, I believe the evidence on points all equally three insignificant and, therefore, should be treated the same. testimony by also relies on one
Justice Souter principal school indicating computer lent to her school Chapter under 2 through was connected a network to non- Chapter computers. 77a). post, (citing See App. principal The Chapter testified that the computer would take over the network if non-Chapter another computer were to break down. Ibid. To the principal’s extent the testimony proves even Chapter 2 funds were diverted school’s mission, the hardly evidence is compelling. contends that evidence of actual di-
Justice Souter *60 requires version the Chapter Court declare program 2 applied unconstitutional as in Jefferson Parish. Post, at n. support, 27. For quotes my he concurring opinion in Bowen and the statement “any therein that public of use promote funds religious doctrines violates the Establish- ment Clause.” 487 S.,U. (emphasis 623 original). in principle That good course remains law, but the next sen- my opinion tence in is more relevant to the case hand: “[E]intensive they violations—if proved can be in this case— highly will be shaping relevant appropriate an remedy Ibid, that ends such (emphasis abuses.” original). I of no know case in which we have declared an entire aid program unconstitutional on grounds Establishment Clause solely because of violations on the minuscule scale those at issue Yet here. precisely that is remedy respondents
866 requested from the District they Court and that were granted by the Appeals. Court App. See 51a; Helms v. (CA5 Picard, 151 F. 1998), 3d 347, amended, 165 F. 3d (CA5 1999). 311, 312 While extensive might violations re- quire remedy along the lines by respondents, asked for no such presented evidence has been here. contrary, To the presence of examples so few period over a years of at least 4 (15years ago) tends to show not that the “no-diversion”rules have failed, but they have worked. Accordingly, I see no reason to judgment affirm the thereby below and declare a properly functioning unconstitutional.
Respondents’ next evidentiary argument concerns an ad- mitted Chapter violation of 2’s secular content restriction. years, Over three Jefferson Parish schools ordered approximately library through Chapter books App. 2. 129a-133a. Dan Lewis, the director of Louisiana’s Chapter program, testified that he discovered some of the religious books pei’forming while a random during check monitoring state visit to a Jefferson Parish school. Id., at discovery 99a-100a. The prompted the State to no- tify the JPPSS, which then requests reexamined book dating back to 1982, discovered the 191 question, books in and re- called Id., them. at 130a~133a. This series of events dem- onstrates not Chapter that safeguards inadequate, are but program’s rather monitoring system succeeded. Even if I were willing instead to find this incident to be evi- dence of a likelihood of future violations, the evidence is in- significant. The 191books constituted less percent than one of the total allocation Chapter 2 aid in Jefferson Parish during years. the relevant Id., at 132a. Justice Souter understandably concedes that the book incident constitutes “only limited evidence.” Post, agree at 909. I with the *61 plurality that, like the above evidence of actual diversion, borrowing the of the library books constitutes de minimis evidence. ante, See at 835.
Respondents’ evidentiary challenge last concerns the ef- Chapter fectiveness supplantation 2’s restriction in Jef- Although ferson Parish. Justice Souter does not rest his point, “not[e] decision on this he does the likelihood that un- supplantation constitutional occurred Post, as well.” at 910, disagree. n. 28. I The cited respondents evidence ambiguous any is too to rest sound conclu- Justice Souter sions on and, at best, shows some scattered violations of the statutory supplantation insignificant restriction that too are aggregate in to affect inquiry. the constitutional Indeed, even Justice respect “[t]he concedes in this Souter sparse.” record is Post, at 911, n. 28.
H» «i* H* important the Given Chapter similarities between program here and the Title I program at Agostini, issue in respondents’ challenge Establishment Clause must fail. As Agostini, Chapter 2 aid is allocated on the basis of neutral, secular criteria; the aid must be supplementary and supplant cannot non-Federal no Chapter funds; 2 funds ever reach the coffers of schools;the must secular; be any evidence of actual diversion de pro- minimis; and the gram includes adequate safeguards. Regardless of whether these factors requirements, are they constitutional surely are program to find sufficient that the at issue here not does impermissible have advancing effect religion. For the same carefully reasons, “this constrained can- also reasonably be viewed as an religion.” endorsement Agostini, Accordingly, S., U. 235. I concur judgment.
Justice Souter, with whom Justice Stevens Ginsburg Justice join, dissenting.
The First Amendment’s prohibits Establishment Clause (and, States) Congress by incorporation, making from respecting law an religion. establishment It has been *62 to prohibit held only the institution of an officialchurch, any government but favoring religion, act particular reli- gion, for or irreligión. that matter Thus, it bars the use of public religious funds for aid.
The prohibition establishment government of religious funding serves more than one end. guarantee It is to meant right the of individual against conscience compulsion, pro- to integrity tect the religion of against the corrosion of secular support, preserve and to unity the political of society against implied the exclusion of the less favored antagonism and the of controversy public over support religious causes. objectives
These always are jeopardy some since the principle substantive of no aid religion to is not the limi- government tation on action religion. toward Because the First Amendment also prohibition bars of individual free religion, exercise religious because organizations can- not be isolated from government the basic functions that cre- ate the civil environment, it is as much necessary as it is difficult to lines draw between forbidden aid and lawful bene- fit. For more years, than 50 this Court has been attempting to draw these Owing lines. variety the of factual circum- stances in whieh the lines must be drawn, not all of the points creating boundary enjoyed have self-evidence.
So far as the line drawn has government addressed aid to education, a few generalizations fundamental are nonethe- possible. less may There be no aid supporting a sectarian religious school’s exercise or discharge religious of its mission, while aid of a secular character with no discernible benefit to such a objective sectarian is allowable. Because spheres and secular largely overlap in the life many such schools, the Court has identify tried some likely facts to reveal relative or secular intent or effect government of the particular benefits in circum- stances. We have asked government whether the acting neutrally in distributing money, its and about the form the path itself, its from to religious institution, divertibility potential religious nurture, its for reduc- its expenditures ing institutions, its traditional recipient, among things. importance to the other relative years effort, In all the of its Court has isolated no sufficiency, single question and the test of constitutional *63 every principle addresses the aid: ease substantive of no there to characterize this as aid what reasons are benefit discharging to the sectarian school in its mission? a control, Particular factual circumstances and the answer is judgment. of matter summary,
In follows I will flesh out this for this what case judgment requires perspective at a time when our comes on Establishment has how the Clause come to be understood just applied. majority today It is not that a mistakes significance the of facts that have led to of conclusions uncon- stitutionality though cases, I earlier believe the Court failing recognize divertibility commits error to the religious objectives. funds the service of What is more important plurality opinion, is the view in the revealed which espouses conception neutrality practically a new as a suf- constitutionality adopted by ficient test of if would, the enquiry plurality Court, eliminate a into law’s effects. The fundamentally position breaks with Establishment Clause principle, methodology and with painstakingly the worked support out in I principle it. mean to revisit that methodology length, any describe the at some there lest be question rupture plurality about that the view would majority’s cause. From that new view of the from law, and application respectfully mistaken of the I old, dissent.
I prohibition "Congress respect- The make shall no law ing religion,” an Const., establishment U. Arndt. S. elegant conceptualization simply prohibi- eludes because applies phenomena tion to such distinct churches as state applied schools, and aid to and as to school aid has prompted challenges programs ranging from construction hearing subsidies to aids to Any textbook loans. criteria, moreover, must margins define the of the establish- prohibition, ment but respect must the succeeding Clause of the First Amendment guaranteeing religion’s free exercise. Ibid. It is no wonder that complementary constitutional provisions and the inexhaustably various circumstances of applicability their have simple defied test and have in- produced stead general combination of rules often in ten- edges. sion their If coherence to be had, the Court has to keep in principal objectives mind the served Clause, Establishment application and its to school aid, and their may help recollection explain the misunderstandings that underlie majority’s result in this case.
A At least three concerns expressed have been since the *64 founding throughout and run our First jurispru- Amendment dence. compelling First, an support individual to religion violates the principle fundamental of freedom of conscience. Madison’s and Jefferson’s now familiar words establish clearly liberty personal of requires conviction freedom from coercion to support religion,1 this and means that the government compel can no aid to fund it. put Madison it simply: “[T]he same authority which can force a citizen to
1 Jefferson’s Virginia Bill for Establishing Religious Freedom provided
“[t]hat no man shall
compelled
be
to frequent or support any religious
worship, place, or ministry
Jefferson,
whatsoever-”
A Bill for Estab
lishing Religious Freedom,
5in
(R
The Founder’s Constitution 84
Kur
&
land
R.
1987);
Lerner eds.
see also Rosenberger v. Rector and Visitors
Univ. of Va.,
(1995)
515 U.
819, 870-872
S.
(Souter,
J.,
of
dissenting). We
have “previously
recognized
provisions
of the First Amendment,
in the
and
drafting
adoption of which Madison and
played
Jefferson
such
roles,
leading
had the
objective
same
and were intended
provide
to
protection
same
against governmental
intrusion on religious liberty as
the Virginia statute.”
Everson v. Board
Ed.
Ewing, 330 U. S.
1,
of
of
(1947).
pence only
contribute three
property
of his
support
for the
any
may
of
one
establishment,
force him conform
other
¶
establishment.” Memorial and
3,
Remonstrance
re-
printed in
Ewing,
Everson v. Board Ed.
330 U.
1,64,
S.
of
(1947). Any
religion
65-66
tax to establish
is antithetical to
the command “that the
always wholly
minds of men
be
free.”
Id., at 12 (discussing
Remonstrance);
Madison’sMemorial and
(noting
id.,
Jefferson’s
“compel[ling]
belief that
a man
money
furnish contributions of
propagation
opin-
ions which he
tyrannical;.
disbelieves, is sinful and
. . even
forcing
support
him to
this or that teacher of his own
religious persuasion,
depriving
him of the comfortable
liberty
giving
particular
his contributions to the
pastor,
(internal
whose morals he
pattern”
would make his
quota-
omitted));
tion
Rosenberger
marks
see also
v. Rector and Vis-
(1995)
itors Univ.
515 U.
ofVa.,
819,
S.
868-874
(Souter,
dissenting).
J.,
government
corrupts
Second,
religion.
Engel
See
(1962) (“[The
Vitale,
v.
S.
Establishment
Clause’s]first
purpose
and most immediate
rested on the be-
lief
government
religion
that union of
and
destroy
tends to
degrade religion”);
and to
supra,
Everson,
at 53
(Rutledge,
dissenting).
argued
J.,
Madison
that establish-
religion
ment of
weakened the beliefs of adherents so fa-
strengthened
opponents,
vored,
generated
their
“pride
and
and
Clergy; ignorance
indolence in the
servility
in the
laity; [and]
superstition,
in both,
bigotry
persecution.”
Memorial and
quoted
Remonstrance ¶7,
in Everson, 330
U.
“[Experience
S., at 67.
witnesseth that ecclesiastical es-
*65
tablishments,
maintaining
instead of
purity
efficacy
Religion,
of
contrary operation.”
have
a
had
Ibid.
In a
variant of Madison’s concern,
repeatedly
we have
noted
government’s
a
particular
religion
favor
a
or sect threat-
ens to taint it with “corrosive secularism.” Lee v. Weisman,
(internal
(1992)
505 U. S.
quotation
577,
marks and cita-
omitted);
tions
see also Illinois ex rel. McCollum v. Board
Ed.
School Dish
No. Champaign
of
Cty.,
of
“[Government
religion
have discrete interests
which
mutually
are
best served when each avoids too
close a proximity to the other.
It
is not
the nonbe
liever who
injection
fears the
of sectarian doctrines and
controversies into the
polity,
civil
but in
high
degree
it is the devout believer who fears the secularization of
a creed which becomes too deeply involved with and de
pendent upon
government.”
School Dist. Abing
of
ton Township v. Schempp, 374 U.
(1963)
S. 203, 259
(Brennan, J., concurring).
See also Rosenberger,
supra, at 890-891 (Souter,
J.,
dissenting).
government
Third,
religion
establishment of
is inextrica
bly linked with conflict. Everson, supra, at 8-11 (relating
colonists’ understanding of
history
recent
of
perse
cution in countries with
religion);
established
Engel, supra,
at 429 (discussing struggle among religions
government
approval); Lemon v. Kurtzman,
(1971).
873 B These concerns are reflected in the Court’s classic summa- tion delivered in Everson v. Board swpra, Education, its opinion directly first addressing governing standards aid to religious schools:3
“The
religion’
‘establishment of
clause of the First
Amendment means at least this: Neither a state nor the
Federal Government can set
aup church. Neither can
pass
religion,
laws which aid one
religions,
aid all
pre-
or
religion
fer one
over another. Neither can force
in-
nor
person
go
fluence a
away
to or to remain
from church
against his will or
profess
force him to
a belief or disbe-
any
in
religion.
lief
person
punished
No
can be
for en-
tertaining or professing religious beliefs or disbeliefs,
church
or
attendance
any
non-attendance. No tax in
large
amount,
or small, can
support any
be levied to
reli-
gious activities or
they
institutions,
may
whatever
be
they
or
may
called, whatever form
adopt to teach or
practice religion. Neither a state nor the Federal Gov-
openly
ernment
secretly,
can,
participate
or
in the affairs
any
religious organizations
groups
or
and vice versa.
In the
words
against
Jefferson, the clause
establish-
religion
ment of
law was intended to erect ‘a wall of
separation between church and State.’” 330 U.S., at
(quoting Reynolds
15-16
v. United States, 98
U. S.
(1879)).
directly
The
pertinent
most
doctrinal statements here are
these: no
pass
“can
laws which aid
religion
one
3The Court upheld payments by Indian tribes to apparently Koman
Quick
Catholic schools in
Bear Leupp,
v.
(1908),
U. S.
in
suggesting
dicta that
there was no Establishment
problem,
Clause
but
it
did
squarely face the question. Nor did the Court address a First Amend
ment challenge
state program providing textbooks
in
children
Ed.,
Cochran Louisiana Bd.
v.
(1930);
[or] religions all .... taxNo amount . . . can be *67 support any levied to religious activities or institutions . . . they whatever adopt form may to religion.” teach . .. U. S., at 16. Thus, the principle “no of aid,” with which no one in disagreed.4 Everson
Immediately, difficulty however, there was the over what might “support.” amount to “aid” or problem The for the Everson merely Court was imprecision of the words, but the language [First “other of the that] Amendment com- [government] mands that hamper eannot its citizens in the free exercise of their religion,” own ibid., with the conse- quence government that must “be a neutral in its relations groups with believers and non-believers,” id., at 18. withholding Since public some benefits from religious groups could be said to “hamper” religious exercise in- directly, extending and other benefits said to aid it, an argument-proof formulation of the principle no-aid was im- possible, and wisely the Court chose not attempt any to such thing. gave Instead it examples definitive public benefits provided pervasively throughout society that would be of organized some value to religion way but not in a or to a degree sensibly could be giving described as it aid or violating the neutrality requirement: there was no Establish- ment Clause concern with general “such serv- ices ordinary police protection, and fire for connections sewage disposal, public highways and Id., sidewalks.” 17-18. These public “benefits of legislation,” welfare id., at 16, extended in modern virtually times to every member of population every person valuable to and association, were paradigms advantages religious organiza- 4While Everson’s parted dissenters with the company majority over the specific question buses, of school the Court stood as one behind the princi 15-16; id., ple of no aid for religious teaching. (Jack at 25-26 id., at 28-29, son, J., dissenting); 31-32 J., (Rutledge, dissenting). enjoy consistently tions could prohibition against with the governments aid, and that could deserting extend without required position neutrality. their paradigms But perfect very are not govern- fits often, spending easy ment resists classification as between univer- general sal subsidy or service of favoritism. The 5-to-4 divi- sion of the Everson Court turned on question the inevitable reimbursing whether parents all for transporting the cost of their enough police protection children school close was to tolerate degree its indirect benefit some majority schools, thinking with Everson the reim- bursement fell statute on the side of lawful the line. Al- though parents the state scheme transport- reimbursed *68 ing among children to schools, sectarian gave others, it “no money [did] to the schools. It support legis- Its them. [did] lation provide no more general program help than to parents get regardless their children, religion, safely of their expeditiously and to and from accredited Id., schools.” at 18. The analyses dissenters countered with showing factual the of the limitation private law’s benefits in fact to school pupils (Jackson, who were Roman Catholics, id., at 20 J., dis- senting), indicating inseparability and the pu- of transporting pils support to from school for the instruction that the was school’s raison d’etre, id., at (Rutledge, 45-46 J., dissenting). usefully
Everson is light understood in the of a successor case two later, decades Board Ed. Central School Dist. of of (1968), No. 1 v. Allen, 392 U. S. challenged the which government practice lending was pupils textbooks to of (as public schools private, both including religious and ones to which there was they previously no evidence sup- had plied books to their and they some classes evidence had 6). not, id., at By 244, n. the time problem Allen, the of of classifying the state religion benefit, between aid to general public service consistent with neutral-
ity, had led to the required formulation of a “test” that secu primary lar, intent necessary and effect as any conditions permissible Id., Again scheme. 243. split, the up Court holding the state law in issue, but majority with Everson’s author, Justice Black, now in dissent. What is remarkable today, about Allen however, not so much its division as its methodology, for consistency way the Justices deciding went about the ease transcended their different con any clusions. Neither side rested on application facile of the any “test” simplistic or generality reliance on the or even- handedness of the Disagreement state law. concentrated on the true intent inferrable behind the feasibility law, the distinguishing in fact between teaching secular in church reality schools, and the or lending sham of books pupils supplying instead of major books to schools. The ity, to provision be sure, cited the for books to all school regardless children, religion, just 392 S., 243, U. as the majority spoken Everson had transportation of the reim going bursement as all, S.,U. in16, each case for analogy sake of provision to the police and fire servi ces.5 practical But stress was on significance of the actual benefits received the schools. As Everson had rested understanding on the money that no support and no went to the school, emphasized id., at Allen that the sav ings parents were devoid of measurable effect in *69 teaching religion, at S.,U. 243-244. Justice Harlan, con curring, up approach summed the his with observations required government “[neutrality is many ... a coat of quoted colors,” and Goldberg’s Justice conclusion, that there “ simple was 'no and by clear any measure’... which this or [religious aid] school may readily case be decided,” id., at 249 306). (quoting Schempp, S., 5Indeed, two of the Allen dissenters with agreed the majority on this method analysis, of asking whether the books at issue were similar enough to fire and police protection. See 392 U. (Black, J., dissenting); id., (Fortas, J., dissenting). After Everson and Allen, the applying state of the law public expenditures Establishment Clause to producing some religious benefit to schools was this: religion 1. Government aid to is forbidden, and tax reve- may nue be used support to religious a school or religious teaching. provision
2. Government paradigms of such of univer- sally general welfare police benefits as protec- and fire tion does religion. not count as aid to 3. Whether a law’s sufficiently benefit is close to univer- sally general paradigms welfare to be classified with them, as religious distinct from a aid, is function of the purpose and effect of the challenged partic- law in all its ularity. judgment The is not applica- reducible to the any tion of formula. Evenhandedness of distribution as religious between secular a beneficiaries is relevant factor, but not sufficiency test constitutionality. of religious There is no rule equal protection to ef- any expenditure fect that for the benefit of school students necessarily constitutional so long as public pupils school ostensibly are on favored identical terms.
4. Government neutrality must maintain religion, “neutrality” being conclusory required label for the position as neither aiding religion nor impeding religious exercise “Neutrality” believers. was not the name identify test to permissible ac- particular, tion, synonymous was not with even- conferring handedness in benefit on the secular as well religious. as the
Today, principle substantive no aid to mis- sion remains governing understanding of the Establish- applied ment Clause as public inuring benefits opinions schools. The governing subject on the in the 85 years since Allen have challenged never principle. this The *70 recognized however, in have,
eases actual Establishment litigation legislation, pure over school aid there is no Clause religion purely aid to and no secular welfare benefit; the ef- judicial between, fects of the laws fall somewhere in with the being task to make allocation a realistic between the two possibilities. The Court’s decisions demonstrate its re- peated attempts classify- to isolate considerations relevant ing particular as between those that do benefits not discern- ibly support support of threaten of school’s cross or mission, and those that threaten to cross the line religion. support into
II A deceptively The most familiar of those considerations is “neutrality,” presence which, or absence of in some sense, we have addressed from moment of I Everson itself. say sense,” “some for we have used term in at least three ways understanding cases, in our an and of the term’s evolu- help explain concept today, tion will it is as understood . significance as well the limits of its in Establishment analysis. “Neutrality’ employed Clause has been as a term requisite government to describe the of equipoise state be- encouragement tween the forbidden discouragement religion; to characterize a benefit or aid as secular; and to indicate distributing evenhandedness in it. already
As mentioned, the Court first referred to neutral- ity simply stating government required Everson, among religions “to be neutral” religion and between nonreligion. Although may atS., “neutral” have 18.. carried a hint inaction when we indicated that the First require [the] Amendment “does not the state to be adver- sary” general gov- ibid., or believers, to cut off religious organizations, pro- ernment services from Everson explicit vided no definition of the term or further indication required what the was do or not do to be
879
religion.
“neutral”
practical
toward
In
terms, “neutral” in
simply
was
Everson
government
for
term
required
its
position
median
aiding
between
handicapping
and
religion.
major
The second
ease
religious
on aid to
schools,Allen, used
“neutrality” to
adequate
describe an
state of balance be
government
ally
tween
as
adversary
and as
religion,
to
see
392
(discussing
S.,U.
line between
neutrality
“state
religion and
support
state
religion”).
of
The term was not
further defined, and
subsequent
a few
school cases used
“neutrality” simply
designate
required
relationship to
religion,
explaining
without
how to attain
g.,
it. See, e. Til
(1971)
ton v. Richardson, 403 U. 672,
S.
(describing eases
“see[k]
to define the
of
boundaries
the neutral area be
Religion
[the
tween
Clauses] within
legislature
which the
may
act”);
legitimately
Roemer v. Board
Public Works
(1976)
Md., 426 U. 736,747
S.
(plurality opinion of Blackmun,
J.) (“Neutrality
required.
is what is
The State must confine
itself
objectives,
to secular
and neither
impede
advance nor
religious activity.
course,
Of
principle
easily
more
stated
applied”);
than
see also Committee
Public Ed. &
Religious Liberty
(1973)
Nyquist,
(de
v.
The began Court employ “neutrality” in a sense dif- ferent from equipoise, however, explicated as it the distinc- tion “religious” between and “secular” religious benefits to schools, the latter being in some permissible. circumstances See infra, considerations). 884-899 (discussing Even though both Everson and Allen anticipated had some such distinction, neither ease had used the term “neutral” in this way. In Everson, Justice Black indicated that providing
police, fire, and similar services to in permissible, part they stitutions was because were “so separate indisputably and so marked off from the similarly S., function.” 330 U. at 18. Allen focused on the approved fact that the lent out were textbooks “secular” and authorities, secular and assumed that the secular textbooks secular elements of education they supported were not so intertwined with in [to be] “in fact teaching struction as instrumental in the *72 religion,” premise id., at 248. Such was the Court’s in shifting for Lemon the use of the word “neutral” from label ing required position government describing of the nonreligious. “[o]ur spoke benefit that was We of decisions [as] from permitting] Everson to Allen provide the States to church-related schools with nonideologi secular, neutral, or cal services, materials,” or facilities, atS., 616, U. and regularly thereafter, we in used “neutral” this second sense “nonreligious.” g., “secular” or supra, e. See, Tilton, (characterizing 687-688 subsidized teachers in Lemon as “not necessarily religiously buildings “religiously neutral,” but neutral”); (1975) Pittenger, Meek v. 421 U. S. 365-366 “ (describing instructional materials nonideologi- as ‘secular, ” neutral”); (describ “wholly eal and neutral’ and id., at 372 ing auxiliary neutral”); “religiously services as Roemer, J.) supra, (opinion at 751 (describing Blaekmun, Tilton’s approved buildings nature”); nonideologieal as “neutral or (describing S., 426 U. speech hearing Meek’s and serv ices as nonideologieal”); “neutral and Zobrest v. Catalina (1993) Foothills Dish, School (discussing 1, 10 U. S. service”); translator Agostini as “neutral Felton, v. 521 U. S. (1997) 203, 232 (discussing need to assess whether nature of aid was “neutral nonideologieal”); and cf.Levitt v. Committee (1973) Religious Liberty, Public Ed. & 472, 478 413 U. S. (noting that approved testing District Court cost reimburse “ payment ment as for services that were ‘secular, neutral, ” or nonideologieal’ citing in character, Lemon, 616); supra, Wolman, (quoting at 242 supra, Lemon, at 616 (describing permitted services aid as “secular, neutral, or nonideologieal”)).
The shift from equipoise to secular was not, however, our last again redefinition, for the Court transformed the sense “neutrality” in the Reexamining 1980’s. reinterpret- ing began Allen, Everson we use word “neutral” to mean “evenhanded,” in the allocating sense of aid on some common basis to recipients. and secular Again, neither Everson nor explicitly Allen used “neutral” in this just manner, but as the equipoise label for had lent itself to referring to the secular characteristic of government what a might provide, readily it adaptable was to referring to the generality services, as in para- Everson’s digms, permissible to which compared. benefits were
The increased attention ato notion of evenhanded distri bution was Nyquist, evident in where the Court distin guished under govern from consideration approved ment services in Allen and part Everson, because “the class [in of beneficiaries Allen] Everson and included all public schoolchildren, those in as well as those *73 private in schools.” S., 413 U. at Nyquist n. 38. then question reserved whether public “some form of assistance . . . made available generally regard without to the sectarian-nonsectarian, or public-nonpublie nature of the institution permissible. benefitted” would be Id., at 783, (citations omitted). n. 38 Subsequent eases continued on “generality^ focus approved of serv important ices as an Meek, characteristic. example, for characterized and Everson approving Allen as general “a program” pay bus fares and to lend school respectively, books, U. atS., id., at 360; 8 (approving 360, n. two similar 421 “general program[s]” in New Pennsylvania), York and and “ upheld diagnostic Wolman services ‘general described as welfare services for children,’” 433 at (quoting U.S., 21). supra, Meek, at 371, n.
Justice
writing
Blaekmun,
in Roemer, first called such a
“general” or
evenhanded
speaking
in
“neutral,”
neutrality’
“facial
as a relevant consideration in determin
ing whether there
anwas
Establishment Clause violation.
“[RJeligious
quarantined
need
institutions
not be
public
from
benefits that
neutrally
are
available
all.” 426 U.
atS.,
see
746-747;
id.,
(discussing
also
at 746
buses Everson and
school books in
examples
Allen as
“neutrally
available”
aid).
In Mueller
(1983),
v. Allen, 463 U.
S.
the Court
adopted the
neutrality
redefinition of
as evenhandedness, cit
ing Nyquist, 413 U.
alluding
S.,
782, 38,
n.
and
to our dis
equal
cussion of
access in
Vincent,
Widmar v.
In “neutrality” sum, originally juris- entered this field prudence eonelusory as a term, a required label for the rela- tionship government between the religion and as a state of equipoise government between ally as and as adversary. Reexamining paradigm Everson’s cases to de- prescriptive a rive guideline, we first determined that "neu- tral” aid secular, was nonideologieal, religious or unrelated to education. Our subsequent reexamination of Everson and beginning Nyquist Allen, culminating in Mueller and recently most Agostini, neutrality recast as a concept of "evenhandedness.”
There good is, of course, reason for considering gener- ality of aid and the evenhandedness of its distribution in making close calls between purpose benefits that in or effect support a religious school’s mission and those that do not. just is This what Everson did. Even disputed when the practice falls short of Everson’s paradigms, the breadth of evenhanded pointer distribution is one pur- toward the law’s pose, since on the face of it aid generally distributed without a likely is criterion less to be meant to aid religion than going only a benefit institutions people. or And, depending on the breadth of distribution, looking to way evenhandedness asking is whether ben- efit reasonably can be seen religion to aid in fact; we do not regard the postal system aiding as religion, though pa- even get rochial schools mail. legitimacy Given the of consider- ing evenhandedness, then, there is no reason to avoid term “neutrality” to refer to it. point But one crucial must be borne in mind. days
In when "neutral” was used in Everson’s sense equipoise, neutrality was tantamount to constitutionality; the term eonclusory, was but when it applied it meant government’s position was constitutional under the Es- tablishment Clause. This is not so at all, however, under the most recent "neutrality” use of generality refer to or evenhandedness of distribution. This neutrality kind of judging relevant in whether a benefit so scheme character- ized should aiding be seen a sectarian school’s
884 neutrality mission, but this is not qualify alone sufficient to the aid as constitutional. It is to only along be considered with other characteristics of aid, its recipi administration, its potential ents, or its emphasized have been over the years just as indicators of how the intent and effect given of really a aid scheme g., is. See, e. Tilton, 403 S.,U. (opinion Burger, of C. (acknowledging “no sin J.) 677-678 gle (not caliper”); constitutional Meek, 421 U. atS., 358-359 ing guidelines considerations as discussing them as degree); matter of Dist. Rapids School Grand v. Ball, of Meek), U. (quoting S. 473 373, (1985) part 383 overruled in by Agostini, 521 atS., U. Kiryas Board Ed. 203; Joel of of Village School Dist. Grumet, v. 512 U. S. (1994) 720 (opinion of J.) (“Experience proves O’Connor, that the Es tablishment Clause, Speech the Free like Clause, cannot eas ily be test”); single reduced to a Rosenberger, 515 atS.,U. concurring) 847-849 (discussing (O’Connor, J., need line- drawing); id., at (noting single lack of a “Grand Unified Theory” for Establishment citing Joel)', Clause Kiryas Agostini, supra, ef. (examining variety of fac 232-233 tors). Thus, the principle basic of scrutiny establishment of principle remains the as stated in Everson, that there may public be religion no aid support or for the any mission institution.
B The insufficiency neutrality evenhandedness as a stand- alone criterion of constitutional intent or effect has been clear beginning from interpretative of our efforts, for an obvious reason. Evenhandedness distributing in a benefit approaches equivalence of constitutionality this area only when the term universality refers to such of distribution that it makes no sense to going think of the benefit group. discrete Conversely, when refers evenhandedness groups distribution to limited society, groups within like schools or it schoolchildren, does regard make sense to benefit recipients. as aid to the g., e. See, Everson, (discussing at 16 approaches “verge” aid that of forbidden (“[W]e territory); Lemon, U. S., only dimly at 612 can perceive the lines extraordinarily demarcation this sen- law”); sitive area of Nyquist, constitutional 413 S.,U. at 760- (noting perplexing questions” the “most presented in this *76 area acknowledging and “‘entangling] precedents’”); Muel- Lemon); ler, 463 U. (quoting 393 Witters, 474 U. atS., Lemon). (quoting 485 if
Hence, we looked no further than evenhandedness, and failed ask might what support, activities or in fact support, religious did schools govern- could be blessed with funding ment as expenditures massive as made bene- public fit of their counterparts, school religious and missions public money. would thrive on why This is the consider- of ation less than neutrality universal has never recog- been nized dispositive always and has been teamed with atten- tion bearing to other facts on prohibition the substantive of support for a religious school’s objective.
At least three enquiry main lines of particu- addressed larly to school aid emerged have complement evenhanded- neutrality. ness First, we have types noted that two of aid recipients heighten Establishment perva- Clause concern: sively religious primary and schools secondary religious schools. Second, we have important identified two charac- teristics of the method distributing of aid: directness or indi- rectness of distribution and genuinely distribution inde- pendent choice. Third, we have found relevance in at least five characteristics of the aid religious itself: its content; its cash form; divertibility its actually or diversion to support; supplantation its traditional items of expense; school substantiality. its
1 types Two recipients of school aid special have raised con- cern. recognized First, we have the fact that the overriding religious mission of certain schools, those sometimes called
886 sectarian,” is not confined to
“pervasively a discrete element of the curriculum, Everson, S., at 22-24 (Jackson, J., U. id., at 45-47 dissenting); J., but (Rutledge, dissenting), per- Tax meates their Walz v. Comm’n New teaching.6 City York, 397 U. S. (1970); Lemon, at 636-637 supra, (“A school which operates commingle with other religion instruction cannot secularize plainly its instruc- completely tion. Parochial schools, do measure, large accept that secular should assumption be unrelated to subjects reli- see also Bowen v. Kendrick, gious teaching”); U. S. 589, (1988) 621-622 (discussing sectarian pervasively private schools). Based on record evidence and we long experience, have concluded that in such schools is at teaching the core of the instructors’ individual and personal obliga- tions, cf. & (“It Canon Text 803, §2, is nec- Commentary essary formation and education in a Catholic given school be based upon Catholic principles doctrine; *77 teachers are to be for their correct doctrine outstanding and integrity life”), and that individual teachers will religious teach Lemon, 403 id., at religiously.7 S., U. at 615-620; 635-
6 fact, In religious education in Roman Catholic schools is defined as part required religious practice; aiding it is thus akin to aiding a church service. See Law, 1988 Code of Canon 798, Canon reprinted in The Code (1985) of Canon (hereinafter Law: A Text and Commentary 566 Text & Commentary) (directing parents to entrust children to Roman Catholic schools or provide otherwise for Roman education); 800, Catholic Canon §2, &Text Commentary 567 (requiring faithful to support establish ment and maintenance schools); of Roman Catholic 802, 804, Canons Text & Commentary 567, 568 (requiring diocesan bishop to establish and regulate schools an “imparting education imbued with the Christian spirit”). 7Although the no longer Court public assumes that school teachers as signed religious schools for limited will purposes teach religiously, see Agostini Felton, v. 203, 228-228 (1997), 521 U. S. we have never abandoned the presumption that religious teachers will teach just that way. Lemon Kurtzman, v. 403 (1971); id., U. S. 615-620 J., (Douglas, 635-641 concurring); Levitt v. Committee Public Ed. & Religious Liberty, 413 for 472, 480 (1973); U. S. 349, 369-371 Meek v. Pittenger, (1975); 421 U. S. Wol-
887 641 Levitt, J., S.,U. 480; Meek, (Douglas, concurring); 421 U. S., at 369-371; Wolman, 433 U. at S., (dis- 249-250 cussing nonseverability and secular education); Ball, at S.,U. 399-400 (O’Connor, J., in concurring judg- ment in and part in dissenting part), overruled in part by Agostini, 521 U. at S., 236. As religious cannot teaching be from secular separated education in such schools or by such teachers, we have concluded that direct government subsidies to such are schools prohibited because will in- they and evitably impermissibly support religious indoctrination. Ball). Zobrest, 509 U. Meek and at 12 (discussing Second, expressed we have special concern about aid to primary secondary religious and schools. Tilton, 403 U. S., at 685-686. On the one hand, we have understood how the youth of the students in such schools highly makes them sus ceptible supra, Lemon, indoctrination. at (“This process of inculcating religious doctrine is, of course, impressionable enhanced age pupils, of the primary in schools particularly”). On the other, we recognized have that the element the education offered in most primary sectarian secondary schools is far more inter twined with the secular than university teaching, where the natural and skepticism academic of most older students may separate the two, see supra, Tilton, at 686-689; Roer mer, S.,U. 750. Thus, accruing benefits to these pervasively religious primary secondary schools special raise dangers of diversion support into reli gious indoctrination of children and the gov involvement of *78 religious ernment in training practice. v. Walter,
man 229, 249-250 U. 433 S. (1977); School Dist. Grand Rapids of Ball, v. 373, (1985) 473 U. S. 399-400 (O’Connor, J., in concurring judg ment in part and in dissenting part), in part by Agostini, supra, overruled at 236. Cf. NLRB v. Catholic Bishop Chicago, (1979) 490, 440 U. S. 504 (“The church-teacher in a relationship church-operated school differs from the employment relationship public school”). or other nonreligious
haveWe
also evaluated the
portent
to an
support
orga-
nization’s
mission that
religious
be inherent
may
in the
method
which aid is
granted,
in at least
finding pertinence
two characteristics
of distribution.
have
First, we
asked
whether aid is direct or indirect, observing distinctions be-
tween government schemes with individual beneficiaries and
those whose
beneficiaries
the first instance
be reli-
might
supra,
Everson,
(bus
schools.
gious
at 18
fare supports par-
ents and not schools); Allen,
The plurality misreads our precedent in suggesting that we have aban- doned directness distribution relevant ante, consideration. See Wolman, 815-818. In we stated nominally describing aid as to stu- dents would not bar a court from finding that it actually provided a sub- sidy school, to a U. but we did not establish a program giving “direct” aid to schools was therefore permissible. Witters, In we made the dear, focus of Wolman continuing to examine aid to determine
889 distinguished Second, we have between indirect aid that only reaches incidentally schools as a result of nu- merous reality individual choices and aid that is in directed by government to practical schools the or in terms by religious selected schools Mueller, themselves. 463 U. at supra, S., 399; Witters, at supra, 488; Zobrest, at 10. In these cases, we have constitutionality declared the pro- grams providing directly parents aid to or students as tax scholarship money, deductions or may pay where such aid education at some sectarian institutions, supra, Mueller, at 399; Witters, only S., 474 U. at 488,but “genu- the result inely independent private and choices recipients,” of aid id., at distinguished 487. We path this of aid the from route in Ball and opinions Wolman, where the indicated that “[wjhere meaningful ... no distinction can be made between aid to student and aid to concept the school, the of a loan to a transparent individuals is fiction.” 474 S., 487, U. at n. 4 (citations quotation omitted).9 and internal marks
3 In addition to character of the school to which the ben- path efit government accrues, its from a school, num- ber of features of aid figured itself have in the elassifica- if it was school, “direct subsidy” 474 S., 487, U. at and distinguishing aid at issue from impermissible aid in Ball Wolman precisely because the designation of the student as recipient in those eases was 487, nominal. at n. 4. Our subsequent cases have continued ask government whether programs constituted impermissible “direct subsidies” to religious schools even where are they directed individual Zobrest, supra, Allen, 11-13; choice. Mueller v. 388, U. S. (1983); Agostini, supra, at 226. have We also permitted to supply students with Zobrest, translators, public-employee 10, supra, and public-employee special Agostini, teachers, education supra, 226,228, directly who pro vided with government services in .them whatever specific schools those attended, students public or I nonpublic. have already noted Agostini’s limitations. See n. supra.
tions we have First, we made. have barred aid with actual *80 religious content, obviously which would run afoul of the ban government’s on the participation in religion, Everson, 330 U. S., at Walz, 16; 397 S.,U. at 668; Lemon, cf. 403 S.,U. at (discussing 617 ideological variable religious character of religious compared books). teachers to fixed content of In permitted eases we where have regularly aid, we have char- (noted acterized it as “neutral” in supra, the sense at 879- 881) being religious without g., See, content. e. Tilton, 403 U. (characterizing S., at 688 buildings as “religiously neu- tral”); Zobrest, 509 (describing S.,U. translator as “neu- service”); Agostini, tral 521 S.,U. (discussing need to assess whether nature of was nonideologi- aid “neutral and cal”). See ante, also opinion) 820 (plurality (barring aid content).10 with
Second, long government we have held aid invalid when circumstances would allow its diversion to educa- tion. The risk of obviously diversion high aid when in the form of funds way makes its into the coffers of religious organizations, and so from the start we have under- stood the outright Constitution to bar money grants religion.11 (“[The See Everson, 830 U. S., State] at 16 10 1agree with the plurality that the Establishment Clause absolutely prohibits the government from providing aid with dear religious content to religious, or for that matter nonreligious, Ante, schools. at 822-825. The plurality, however, misreads our precedent as focusing only on af firmatively religious content. At the very least, a building, for example, no has such content, but we have squarely required the government ensure that no publidy financed building be diverted to use. Tilton Richardson, v. 403 U. (1971). S. 681-684 See also Bowen v. Kendrick, (1988) 589, 623 U. S. (O’CONNOR, J., concurring) AJny use of public funds promote religious doctrines violates the Establishment Clause”). 11 We have similarly noted that paying salaries of parochial school teach ers creates too much aof 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. Lemon, See (“We at 619 do not assume, however, that parochial school teachers will be unsuccessful consistently cannot with religion’ the ‘establishment of clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith (“The church”); id., at 18 money State contributes no them”); to the support schools. It does not Allen, 892 S.,U. (“[N]o at 243-244 funds or books are parochial furnished to schools, and the financial parents benefit is to and children, schools”); supra, (“Obviously Walz, at 675 money a direct subsidy would a relationship pregnant be with involvement governmental and, as with most grant programs, en- could compass sustained and detailed relationships administrative statutory standards”); enforcement or administrative supra, Lemon, (identifying at 612 against “three main evils” *81 which Establishment protect Clause was to “sponsorship, support, financial and active involvement of sovereign the religious Walz); activity,” citing (distinguish- 403 S.,U. at 621 ing direct financial aid from Everson and Allen and problems noting required surveillance); with Nyquist, future 413 S.,U. at (striking 762, 774 money grants” down “direct maintaining for buildings because there was attempt no to payments restrict expenditures to those exclusively related purposes); to secular Levitt, 413 S.,U. (striking at 480, 482 money grant” down “direct testing for expenses);12 Hunt v. in their to attempts segregate their religious beliefs from their secular responsibilities. educational potential But impermissible for fostering religion present. [state The legislature] not, has not, and could pro- vide state aid on the basis of a mere assumption secular that teachers under religious discipline can avoid conflicts. The certain, State must be given the Religion Clauses, that subsidized teachers do not inculcate religion- A comprehensive, discriminating, and continuing state sur- veillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected”). 12It is true that we called importance the cash payment consider ation into question in Committee Public Ed. Religious and Liberty v. for Regan, 646, (1980) 444 U. S. 657-659 (approving program reli providing gious school with “direct cash for expenses reimbursement” of standard ized testing). case, In that we found the other safeguards against diversion of such funds to uses religious sufficient to allow such aid: “A (1973)
McNair, 413
734,
U.
(noting
745,
S.
n.
approved aid
expenditure
public
is “no
by grant
loan”);
funds, either
or
Wolman, 433 U. S.,
at
and n. 7 (noting that “statute does
not
any payment
authorize
nonpublic
to
personnel
school
tests”);
the costs of administering
Agostini,
521 S.,U.
at
228-229 (emphasizing
approved
that
services are not “dis-
‘directly
tributed
to the
schools.’ ... No Title I
funds ever reach the
coffers of
schools, and
I
Title
may
services
provided
not be
schools on a school-
(citations omitted));
wide basis”
Bowen,
Divertibility
not,
course,
of
a characteristic of cash
examining provisions
alone,
when
ostensibly
secular
supplies
susceptibility
have
we
considered their
to the serv
ice of
ends.13 In upholding a
provide
scheme to
students with
emphasized
secular textbooks, we
that “each
book loaned
approved
public
must be
school authori
may
ties;
secular
approval.”
books
receive
Allen, 392
atS.,U.
244-245; see
(opinion
Meek,
also
atS., 361-362
J.);
supra,
Wolman,
By
Stewart,
at 237-238.
the same
provisions
token, we could not sustain
for instructional mate
adaptable
teaching
rials
variety
subjects.14
Meek,
supra, at
supra,
363; Wolman,
at 249-250.
While
text
books had a known and
readily
fixed secular content not
di~
13 Ireject
plurality’s
argument
divertibility
ais
prin
boundless
Ante,
ciple.
at 824-825.
long
Our
experience of evaluating this consider
ation demonstrates
its practical
limits. See
this page and 894-895.
infra
Moreover,
the Establishment Clause charges us with making
enqui-
such
ries, regardless of their difficulty. See
supra,
875-878, 884-885. Fi
nally, the First Amendment’s rule
only aid
permitting
with fixed secular
content seems no more difficult to
than
apply
the plurality’s rule prohibit
ing only
with fixed
content.
Contrary
the plurality’s
belief,
Lamb’s Chapel v. Center
apparent
Moriches
Dist.,
Free
Union
School
(1993),
895 point buildings same in we mind, With the held that government grants constructed with to universities with religious religious affiliation must from be barred use indefinitely prevent to the diversion of funds objectives. religious (plurality to Tilton, 403 atS.,U. 683 (“If, opinion) years, building the is, at end of 20 the for exam- ple, chapel promote into converted a or to otherwise used religious original grant interests, the part in federal will advancing religion. have the effect of To this extent the Act trespasses Clauses”); Religion therefore on the see also accordingly Hunt, 413 U. at S., 743-744. We were con- repairing buildings strained to strike down aid noiipub- for of they lic religious schoolsbecause could be used for education. Nyquist, 413 S.,U. at 776-777.
Divertibility again, remanding was, the issue in an order as-applied challenge grant an a supporting to counseling on sexuality teenage findings for that the aid had not been used support religious to Bowen, education. atS., 621; U. see id., also at 623 concurring). J., And the most (O’Connor, example significance recent of divertibility attention the to of explanation public occurred in our that school teachers could assigned provide religious be to limited instruction in schools Agostini, majority in S.,U. at 223-227, a the of Court rejecting assumption the public factual school teachers readily providing could be lured religious into instruction.16 ante, plurality The Zobrest. See mistaken its reading at 820- 821. Zobrest not reject does principle divertibility. There the government provided only translator who was not considered divertible because he did not to or add subtract from the The religious message. Court approved aid, translator it as would approve health hearing services, diagnostics, Zobrest, S., 13, tests. See 509 U. n. 10. Roberts, (1899); Wolman, 291, Cf v. 175 U. S. 299-300 Bradfield at 244. Zobrest can thus be thought of as akin to our approval diagnos Wolman, tic services in supra, which we considered have “little or no content[,] educational [to associated with closely be] the educa tional mission school,” nonpublie and not to “an pose impermissible
Third, recognized our cases have adopted distinction, by statute Chapter in the legislation, between aid that merely supplements supplants and aid that expenditures offerings schools, the being latter barred. Al- though adopted we have never position benefit that flows to a religious impermissible school is because it up frees resources for the school engage indoc- supra, trination, Hunt, at 743,from our first decision holding permissible it provide textbooks for we schools *85 repeatedly have explained the unconstitutionality of aid that supplants an item the of school’s expense. traditional See, g., e. Cochran v. Louisiana Ed., Bd. 281 S. 370, U. 375 of (1930)(noting that schools “are the beneficiaries of appropriations. these They nothing obtain from them, are they nor of a obligation relieved single because of them” (internal quotation omitted)); marks Everson, 330 U. S., at (specifically 18 noting program that bus fare support did not religious schools); or fund Allen, 392 U. S., at (stating 244 that “the [of financial benefit providing textbooks] is to parents (footnote and not to children, schools” omitted)); id., risk of the fostering of ideological views.” The fact that the saw dissent (as things otherwise out, ante, the plurality 821) points at is beside the point here. Similarly, the plurality is mistaken in reading our holdings in Mueller Witters, ante, and 821, see at to undermine divertibility as a relevant prin- ciple. First, these approved cases quite factually distinct types aid; of Mueller involving deductions, tax which a quite have separate history of see approval, 396, 468 S.,U. at 5, 6 (citing Walz v. Tax Comm’n nn. and City York, New 397 U. S. (1970», of Witters involving 664 of scholar- money ship distributed ato university, not a primary or school, secondary Tilton, see S.,U. 403 at 685-686, that was not significant as a enough institution, Witters, whole support that S., Second, at 488. in neither case did the at provide issue direct aid on a schoolwide (as basis Chapter here); 2 does in we both found distinction based on the genuinely independent, private choices which allocated very such different (tax of types deductions and university scholarship money that did not amount to substantial Mueller, support supra, at university). See 399; Witters, supra, at 488.
897 244, at n. 6 that “the record contains (explicitly recognizing no evidence that of the schools in dis- private appellants’ tricts textbooks for students”); their previously provided Lemon, 403 at S., Brennan, J.) U. no (opinion (noting Allen). aid to schools was involved in We this ignored pro- hibition once, in U. at also S., 646; ante, Regan, see 7,n. 16, where reimbursement for budgeted expenses was not struck but required down, we then testing quickly returned to rule as a aid.17 In guideline permissible Zobrest, U. Court specifically distinguished Meek Ball that the invalid by explaining programs those eases “relieved sectarian schools of costs other- they wise would have borne in their In students.” educating the Court made a Agostini, point noting objects of the aid were law to the curric- “by supplemental regular ula” and, Zobrest, the remedial citing educa- explained tion services did not relieve the schools of costs would otherwise they have borne. S.,U. at 228 (citing 12). Zobrest, The supra, Court stated that the explicitly 17Our departure from this principle Regan is not easily explained, but *86 it is an isolated holding by surrounded otherwise unbroken to adherence the no-supplanting principle. Long after we have Regan continued to find the distinction, like supplement/supplant aid, the bar to substantial to be an important Zobrest, consideration. See 12; supra, S., at Agostini, 521 U. 228; Witters, at c£ supra, at 487-488 (discussing against rule "direct sub sidy”). The weight that the places on plurality Regan thus too much ante, for it to bear. 815, Moreover, at See n. apparent 7. the object of the Regan Court's concern was vindicating the principle aid with fixed secular content was permissible, it distinguishing from the divertible test in ing S., aid Regan, Wolman, Levitt. 444 U. at 661-662 (citing at supra, 263); Levitt, S., c£ 413 U. at plurality provides 480. The explanation no for our reference to continued the principle no-supplanting aid in subse quent cases, such as Zobrest which it Agostini, trustworthy finds guides ante, elsewhere in its discussion of First Amendment. See at 825, 822-823, 827, 829-832. Nor the plurality explain why does it places so much on weight Regan’s apparent from departure the no-supplanting rule it ignores Regan’s while core reasoning that the aid there was testing permissible because, Levitt, in direct to contrast the aid was divertible. question services in “supplant did not the remedial instruc- guidance tion and counseling already provided in New York City’s sectarian schools.” 521 U. S., at 229.
Finally,
recognized
(however
we have
what is obvious
im-
precise),
holding
in
“substantial”
amounts
to be
aid
uncon-
stitutional
plaintiff
whether or not a
can
sup-
show that it
plants
specific
a
expense
item of
a
school would
have borne.18 In Meek, 421 S.,U.
at 366, we invalidated the
loan of instructional
materials to
schools because
“faced with the substantial
amounts
direct support author-
[the
ized
program], it
simply ignore
would
reality to
attempt
separate
secular educational functions from the
predominantly religious
performed by
role
many Pennsyl-
vania’s
elementary
church-related
secondary
schools and
then
[the
characterize
program] as channeling
the sec-
ular
providing
without
direct aid to the
Id.,
sectarian.”
(“Substantial
365.
id.,
See
at 366
aid to the educational
function of such schools
necessarily
...
in
results
aid to the
sectarian
enterprise
school
whole”);
as a
see
Nyquist,
also
C history This stretch of point doctrinal leaves one clear be- yond peradventure: together with James we Madison have consistently understood the Establishment impose Clause to prohibition against substantive public religion and, hence, the mission of sectarian schools. Even- neutrality handedness nondispositive is pointer one, toward (to an degree) intent and probable lesser per- effect on the missible side of the line between general forbidden aid and public welfare pointers benefit. Other are facts about the religious mission and education level of benefited schools and pupils, their pathway which a benefit travels from public treasury to educational effect, the form and content of adaptability aid, its ends, and its effects on budgets. object school enquiries The all into such mat- ters the same particular is whatever circumstances: is the benefit intended providing to aid in element of the likely education is it to do so?
The substance law changed has thus since Ever- Emphasis son. on one sort fact or another has varied depending perceived utility on the enquiry, of the but all that repeated has been added explanation of relevant considera- confirming tions, predecessors that our right were in their prophecies simple emerge no test would easy to allow application of principle. the establishment plurality,
The reject however, would lesson. The majority misapplies it.
III A The nub of the plurality’s position new is this:
“[I]f government, the seeking to further legitimate some purpose, secular offers aid on the same terms, without regard religion, to all who adequately further that purpose, then it is say fair any that going aid ato religious recipient only has the effect furthering that secular purpose. government, The in crafting such an program, aid has had to conclude given that a level of aid necessary is to further purpose among secular recipients provided and has no more than that same level recipients.” (citation Ante, at 810 omitted). As a break with consistent doctrine plurality’s new crite- unequaled
rion is in the history of Establishment Clause in- terpretation. Simple on its face, appears it to take even- neutrality handedness practical and in promote terms it to a single and sufficient test for the establishment constitutional- ity of school aid. Even itson own terms, its errors are mani- fold, and attention to at least three of its mistaken assump- tions will degree show the to which plurality’s proposal replace would the principle of no aid awith gen- formula erous religious support. First, the plurality treats an external observer’s attribu- tion support government to the as the sole im- permissible effect of government g., scheme. See, e. (“[N]o ante, at one would any conclude that indoctri- nation particular recipient conducts has been done at the behest government”). of perceived While state endorsement religion is undoubtedly a relevant concern under the Establishment Clause, g., see, e. Allegheny County, 492 S.,U. see 592-594; also Capitol Square Re- view and Advisory Bd. v. Pinette, 515 U. S. 772-774 (1995) (O’Connor, J., concurring part in and concurring in judgment); id., at 786-787 (Souter, concurring part J., concurring judgment), it certainly one. Everson made this clear from the start: religion secret aid to government is also barred. 330 S.,U. at 16. State aid not attributed to the would still violate a *89 taxpayer’s liberty of conscience, corrupt threaten to religion, generate and disputes over In aid. event, since the same-terms feature of the scheme would, on plurality’s the view, rule out the attribution or perception of endorsement, adopting plurality’s the rule of facial evenhandedness would neutrality convert dispositive into a criterion of establish- ment constitutionality and eliminate the enquiry effects di- rected Allen, Lemon, and other plural- eases. Under the ity’s neutrality, rule program if a part met the first enquiry, by Lemon declining to define a program’s recipients by religion, it would automatically satisfy the sup- second, in posedly having impermissible no aiding effect of religion.19 plurality
Second, the apparently assumes as a fact that equal amounts of aid to nonreligious and schools exclusively will have equal secular and effects, on both exter- perception nal and on incentives to attend different schools. ante, See at 809-810, 813-814. But there is no reason to believe that this will be the case; the effects of same-terms may aid not be confined to the sphere secular at all. This is the reason that we long have recognized that unrestricted aid to schools will support religious teaching in ad- 19Adopting the plurality’s rule would permit practically any government aid to religion so long as it could be supplied on terms ostensibly compara ble to the terms under which aid was provided nonreligious to recipients. As a principle of constitutional sufficiency, the manipulability of this rule is breathtaking. A legislature would merely to need a state objec secular tive in order to legalize massive aid to all religions, religion, one or even sect, one to which its largess could be directed through easy exercise of crafting facially neutral terms under which to offer aid favoring that religious group. Short of formally replacing the Clause, Establishment a more dependable key to the public fisc or a cleaner break with prior law would be difficult to imagine.
dition to secular education, a fact that would be true no mat- ter what secular supposedly of the law purpose be. might
Third, assumes plurality per distribution capita rules the same safeguard principles independent, private choices. But that is not so. clearly We approved university scholarships Witters because we found them close to giv- a ing government and employee paycheck him to allowing it as he spend chose, but per capita a far from cry to awarding scholarships one of individuals, whom an makes independent private choice. Not the least of the significant differences between per aid and capita aid individ- determined ually and directed is the right genuine op- of the portunity choose not recipient the aid.20 give To hold otherwise would be to license the donate funds to churches based on the number of their members, on fiction of patent independent choice. private
The mistaken plurality’s assumptions explain under- *90 score its break with sharp the Framers’ of understanding establishment and this Court’s consistent interpretative course. Under the plurality’s little regime, would be left of the of right conscience against compelled for reli- support the more gion; massive the aid the more would potent be the influence of the on government the mission; teaching more generous support, more divisive would be the resentments those of resisting religious and support, those religions school without systems to claim ready their fair share.
B The of plurality’s conception evenhandedness does not, however, control the case, whose disposition turns on the misapplication accepted categories school aid analysis. The facts most relevant obviously to the 2 scheme Chapter 20Indeed, the opportunity an for individual choose not to have her religious school government receive just aid is what at least one of the respondents seeks here. See Brief for 1, Respondents and n. 1.
in Jefferson showing divertibility are Parish those and actual diversion in the pervasively circumstance of sectarian reli- gious type schools. The pro- aid, the structure of the gram, and the safeguards lack of clearly effective demon- the divertibility strate the aid. While little is known owing about its use, system the anemic enforcement in the parish, even the thin record before us reveals that actual diversion occurred.
The aid that provided highly was sus- ceptible to unconstitutional use. Much of the equipment provided Chapter under 2 was not provided of the type for individual App. students, to Pet. App. for Cert. 140a; 262a- but 278a, projectors, included “slide projectors, movie over- projectors, head tape television sets, projec- recorders, globes, tion maps, filmstrips, screens, computers,” cassettes, computer and software peripherals, Cody, Helms v. (ED No. 85-5533, WL 1990); La., Mar. App. for Pet. Cert. 140a;App. 90a, 262a-278a, as library well as books and materials, id., at 56a, 126a,280a-284a. The video- players, cassette projectors, overhead and other instruc- tional aids were of the sort that we have easily found can be by religious used teachers for purposes. Meek, 421 S., U. 363; at Wolman, 433 U. S., at 249-250. The same was
true of computers, readily which were employable for religious teaching as equipment, the other presumably as immune to countervailing safeguard, App. 90a, 118a, Although 164a-165a. library books, like textbooks, have fixed content, assign teachers library can seeular books critique, and books for may libraries be *91 religious, any divinity library school would demonstrate. The variety sheer number and of boohs that could be and gave were ample ordered opportunity for such diversion. divertibility The thus inherent in the forms of Chapter 2 by aid was enhanced program structure of the in Jeffer- son Requests Parish. specific items under Chapter 2 came not from seeular officials, ef. Allen, 392 S.,U. 244- at (and 245, but from religious of the par- officials schools even religious ents pupils), school see (noting ante, at 803 private religious gov- schools submitted their orders to the items); specific requested App. ernment for 156a-158a. The they sectarian schools decided what wanted and often or- supplies, dered the id., at 156a-159a, 171a-172a, to be for- directly warded to themselves, id., at 156a-159a. It was easy to select library whatever instructional materials and just easy books the schools wanted, as it employ was com- puters support religious for the of the content of the curricu- religious lum infused with instruction. divertibility
The concern predicated with thus is under scored the fact question that the schools in here covered the primary secondary grades, grades which the sectarian nature of instruction is characteris tically pervasive, the most Lemon, see atS., 616; Tilton, cf. pupils S.,U. 686-689, and which are the least religious objectives, critical schools’ see swpra, Lemon, disputes one, 616. No indeed, the trial judge’s findings, based on a detailed record, that the Roman up schools,21 Catholic majority which made private of the schools participating,22 pervasively were sectarian,23 that 21Litigation, discovery, opinions and the below focused almost exclu on the sively aid to the Roman Catholic schools. Consequently, I will my confine discussion to that course, information. Of the same concerns be by government would raised aid to religious schools of other faiths that a court found had similar missions of religious education and teaching teachers religiously. 22The Jefferson Parish Chapter schools, included 46 nonpublic of which 41 were religiously affiliated. Thirty-four of these were Roman Catholic, seven affiliated, others were religiously and five were not reli giously affiliated. App. Pet. for Cert. 143a-144a. 23 The trial judge found that the Roman Catholic schools in question operate under the supervision general and authority of the Archbishop of Orleans New and their parish pastors, and are located next to parish Id., churches and sometimes a or rectory convent. at 144a. The schools include symbols classrooms, in their 75a, App. require attendance id., at daily classes, religion 76a, conduct sacramental preparation *92 their common objective and mission was to in reli- engage gious education,24 and that their teachers reli- taught giously,25 them making precisely kind of and primary classes during schoolday, require mass, attendance at and provide ex- tracurricular religious activities. At least some exercise religious pref- in erence accepting students and in charging tuition. App. to Pet. for Cert. 145a. 24 The District Court found that the mission of the Roman Catholic is religious schools education based on the Archdiocese’s and the individual published schools’ statements of philosophy. For example, the St. An thony School Handbook, by cited Court, District reads: “Catholic education is intended to make men’s faith become con- living, scious and active through the light of instruction. The Catholic school is the unique setting within which this ideal can be realized in the lives the Catholic and children young people. “Only such a school can they experience learning and living fully inte- grated in the light of Here, faith.... too, instruction in religious truth and values is an integral part of the school program. It is not one more sub- ject along rest, side the but instead it perceived is and ftmctions as the underlying reality in which the student’s experiences of learning and liv- ing achieve their coherence and their deepest meaning.” Ibid. The Handbook of Policies Regulations for Elementary Schools Archdiocese New Orleans indicates that operation of the Roman Catholic schools is governed by canon law. It also lists the major objec- tives of those schools as follows:
“To work closely with the home in educating children towards the full- ness of Christian life.
“To specifically teach Catholic principles and Id., Christian values.” 146a. The mission statements objectives outlined the other Roman Cath- olic schools also support the conclusion that these institutions’ primary objective is religious instruction. See also 65a, App. 71a. 25The Archdiocese’s official policy calls for religious preferences in hir ing and the contracts of principals and teachers its schools contain a provision allowing termination for lifestyle contrary the teachings of the Roman Catholic church. App. to Pet. for Cert. 145a. One of the objectives of the handbook “[t]o encourage teachers to become com mitted Christians and to develop professional competence.” Id., at 146a. Other record evidence supports the conclusion that these religious school teachers teach religiously. See, g., e. 125a App. (deposition of president of school) (“Our high sectarian teachers, whether they are religion teachers
secondary religious schools that Taise the most serious
*93
Establishment Clause concerns.
Watz,
See
atS.,
671;
Hunt, 413
at
supra,
743;
U.
Lemon,
at 636-637. The
threat to Establishment
accordingly
Clause values wáfe
at its
highest in the circumstances of
precaution-
this case. Such
ary features as there were
the
in
Jefferson Parish scheme
grossly
were
inadequate to counter the
To be sure,
threat.
the
subject
disbursement of the
statutory
aid was
admoni-
against
tions
g.,
diversion, see, e.
20 U. S. C. §§7332, 8897,
supposedly subject
and was
variety
safeguards,
to a
of
see
at
ante,
802-803,
provisions
832-834. But the
for onsite
monitoring
labeling
visits,
of
property, and
government oversight
accepted
be
cannot
as sufficient in
the face of record
safeguard
evidence that
provisions
the
proved
empty
phrases
be
Agos-
in Jefferson Parish. Cf.
tini,
The has length noted at the ineffective- government’s ness of the monitoring program. Ante, at (“A App. 832-834; see system also Illa nonpublie to monitor schools was operation often not in [local and therefore the agency] (a) educational always did not pur- know: what was (b) utilized”). chased or how it was Monitors visited a non- publie only sporadically, school discussed the with a single person, nothing contact observed attempts more than at recordkeeping, and failed to inform the teachers restrictions Id., involved. Although Chapter 154a-155a. required labeling government property, it hap- occurred hazardly at best, id., government’s 113a, sole mon- itoring system computer nothing use amounted to more not, or are certainly instructed that when issues come up in the classroom that have a religious, moral, or concept, value that their answers be con sistent with teachings of the Catholic Church they and that respond way students, to the so there can be opportunities in other classes other than religion where of religio[n] discussion take could place, sir”); id., yes, 73a, 74a. questioning than school examining officials and the location computers at the schools, id., at 118a. No records of soft- computer ware and kept, use were and no recordkeep- such ing planned. was even Id., at 118a, 164a-166a. State and local officials Jefferson Parish nothing admitted that pre- Chapter vented computers being from used for reli- gious instruction, id., at 102a, 118a, although. 164a-166a, and they knew of methods monitoring computer usage, such as locking computer functions, id., at they 165a-166a, implemented particular no policies, systems, instituted no employed technologies no to minimize the likelihood of diversion to uses,26id., at 118a, 165a-166a. The *94 watchdogs require did religious give schools to so not much as an they assurance that would Chapter use 2 comput- solely ers purposes, for secular Helms Picard, v. 151 3dF. (1998), 368 (CA5 amended, 165 F. 1999); 3d 311 App. 94a-95a. Government officials themselves admitted that way there was no to tell whether instructional materials had been diverted, id., at 118a, 139a, 144a-145a, and, plu- as the rality notes, screening library mechanism the book scheme was a review single titles government official, ante, 832-833, n. App. 15; see govern- 137a. The ment did not even have policy on consequences of non- compliance. Id., at 145a.
The risk of immediate diversion of Chapter 2 benefits had complement its in the risk of future against diversion, which the Jefferson program Parish absolutely had protection. no By purchases statute all Chapter with 2 aid were to remain the property of the United §7372(e)(1), States, 20 U.S.C. merely being “lent” to the recipient nonpublic schools. In actuality, however, record indicates nothing in the 26 The Government's reliance on U.S. Department of Education Guid ance for Title VI of the Elementary and Secondary (Feb. Education Act 1999) is misplaced. See App. Brief for Secretary of Education la. It was place when discovery matter, dosed in this and merely high lights the reasons for a lack of evidence on diversion or compliance.
908 program Jefferson way giving Parish stood in the Chapter property outright to the schools when it Although equipment became older. old prop- remained the erty agency, government of the local education a local admin- body, agency employee istrative one testified there was policy dealing no computers, set for with old which were probably given outright to the App. schools. 161a- government-funded 162a. The witness said that instruc- tional probably were materials, too, left with the they schools when were old, and that it was unclear whether library books were ever government. to be returned to the Ibid.
Providing governmental such aid without effective safe- guards against future diversion itself offends the Establish- ment Clause, Tilton, U.S., Nyquist, 682-684; S.,U. 776-777, and even without evidence of actual diver- sion, our repeatedly cases have held that a “substantial risk” of it suffices to program invalidate a on es- grounds. g., tablishment See, Wolman, e. S.,U. at 254 (invalidating transportation aid for teacher-accompanied on trips field “unacceptable because an fostering risk of of reli- gion” was byproduct”); “an inevitable Meek, 421 U. S., at 372 (striking down “potential because of a impermis- fostering (invali- sible religion”); Levitt, at 480 dating designed *95 aid for tests by religious teachers because of “the substantial risk that. .. prepared by examinations, teachers authority under the of institutions, will be eye, drafted with an unconsciously or otherwise, to inculcate students in the preeepts church”); sponsoring of the Lemon, (finding S., 403 U. at 619 “potential invalid aid with a impermissible for fostering religion”); ef. Bowen, 487 S., U. (noting at 621 that where diversion clearly risk is less made may out, a case findings be remanded for on actual diversion religious indoctrination); of aid to Began, 444 S.,U. at 656 (characterizing as “minimal” the chance that state-drafted “complete” safeguards tests with adopted would be to reli- A gious testing). substantial risk diversion in this ease was more clear, than as the has plurality conceded. The First Amendment was violated.
But the record here goes risk, beyond instances of actual diversion. What one would expect from such paltry efforts at monitoring enforcement naturally resulted, and the record strongly suggests other, undocumented diversions probably occurred as well. First, the record shows actual book, diversion in the library program. App. 132a-133a. Although limited evidence exists, con- it trasts with the starkly records of the numerous textbook that we programs have repeatedly upheld, where there was no evidence of actual Allen, any diversion. See S., at U. supra, Meek, supra, 244-245; Wolman, at 361-362; at 237- 238. Here, revealed that discovery under 2, non- Chapter schools public and the requested purchased least 191 religious books with funds taxpayer December 1985.27 133a. App. Books such as A Child’s Book of Pray- ers, id., at 84a, and The id., at 132a, Life Illustrated Jesus,
27The plurality applies inconsistent standards to the evidence. Al though the plurality finds more limited evidence of actual diversion suf ficient to support a general finding of diversion in the computer and in structional materials context, even in the face of Justice O’Connor’s objections, it fails find a violation of prohibition against providing aid with religious based content on the stark, more undisputed evidence of religious books. ante, Compare 832-834,'and nn. 14-17, ante, with at 834-835. As a matter of precedent, the correct evidentiary standard is clearly the former: “[A]ny use of public funds to promote religious doctrines violates the Establishment Bowen, Clause.” S., 487 U. at 623 (O’Connor, J., concurring). We have never before found actual diver sion or allowed a it; risk of we have struck down policies that might permit it, g., Tilton, e. 682-684, or have remanded specific factual findings about whether occurred, Bowen, diversion rnpra, at 621. See supra, at 890-895. As a matter of this low principle, threshold is required to safeguard the values First Amendment. Madison’swords make cleai*that even small infringement of prohibition on compelled aid to religion is odious to the freedom of conscience. No less it open does the door to the threat of corruption or to a return to religious conflict.
910 among were discovered others that had been ordered under program. id., also See 59a-62a. persuasively suggests The evidence that other aid was ac- tually principal diverted as well. The religious of one school example, computers testified, for that Chapter lent with joined funds were in a non-Chapter network with other computers in religious some schools, and officials and develop teachers were allowed to unregulated their own software for use on Id., this network. 77a. ad- She Chapter computer mitted that the support took over the system computing whenever there was a breakdown of computer purchased the master with the school’s own plurality funds. Ibid. Moreover, as observes, ante, at comparing 833-834, 17, n. the records of considerable funding equipment federal of audiovisual in schools with records of the schools’ use of unidentified audiovisual equipment religion strongly suggests classes pro- that film jectors videotape and purchased public machines with funds were period used in indoctrination over a atof least years. seven App. 205a, 210a, 206a-207a; see also id., at (statement 108a second-grade indicating teacher that she classes). used audiovisual materials in all plurality readily Indeed, the recognizes that the aid in question here was divertible and that substantial evidence of actual diversion exists. Ante, at 832-834, nn. 14-17. Although Justice significance attributes limited O’Connor divertibility to the evidence of and actual diversion, she also recognizes it exists. (opinion Ante, at 864-865 concur- ring judgment). The Court has no choice but to hold that applied violated the Establishment Clause.28 28Since the divertibility and diversion require a finding unconstitu I tionality, will not explore other grounds, beyond noting the likelihood that unconstitutional supplantation occurred as well. The record demon strates that Chapter aid impermissibly relieved religious schools of some costs that they borne, otherwise would have unconstitutionally so sup-
911 IV The would plurality break with the law. The majority it. That misapplies is, misapplication however, con- solation in the case, which reaches an erroneous result but does not stage doctrinal there But no is coup. mistaking abandonment doctrine that would if occur the plurality were become a It is majority. beyond that question notion plurality’s of evenhandedness as a neutrality practical guarantee validity sectarian schools would be the end of the of no aid principle to the schools’ religious mission. And if that were so obvious it would become so after on the reflecting plurality’s about thoughts diversion planted support some budgetary categories. The record of affidavits and evaluation forms religious schoolteachers and officials indicates Chapter 2 aid was significant in the development of teaching cur- rículums, the introduction of new programs, and the support of old ones. 105a-108a, App. 184a-185a. The evidence shows that the concept of supplementing instead of was poorly supplanting understood by the sole government official administering the program, who apparently believed that the bar on supplanting was more nothing than prohibition on paying for replacements of equipment that religious schools had previously pur- Id., chased. 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 id., educational equipment, at 145a-146a, and the 1985 Monitoring Report that the shows officials of at least one religious school admitted government aid was used to create the library, with the school’s funds, regular when occasionally available, used merely supplement the government money, Fine id., Deposition, at 63a. The use records for audiovisual materials at one religious high school re- vealed that Chapter funds were essential to the school’s educational process, id., 187a, at and a school, different as already noted, used a Chap- ter computer to support its computer network when its own computers failed, id., at 77a. The record sparse, is 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, S., Zobrest, 783; U. at 12. giving pervasiveness
and about attention to the of a school’s teaching. sectarian plurality pointing
The is candid in out the extent of actual Chapter diversion of 2 aid to use in the case before equally us, ante, 882-834, saying and n. candid in it ante, does not plurality matter, 820-825, 833-834. To the nothing wrong aiding there with a school’s mis- only question religious teaching sion; the is whether obtains support formally its tax under a evenhanded criterion of dis- *98 principle religious tribution. The of no teaching aid to has independent significance. no enough prove
And if this were not that no aid in reli- gious school aid is plurality’s dead under the First Amend- point the plurality’s ment, is nailed down in the attack on legitimacy considering pervasively a school’s sectarian judging character when likely whether aid to the school is religious aid its Ante, mission. at 826-829. The relevance simply of this consideration is a matter of common sense: religious pervades where indoctrination school activities of children great and it takes adolescents, care to be able to aid supporting school without the doctrinal This effort. is plurality The obvious. any enquiry nonetheless condemns pervasiveness into the of doctrinal content aas remnant (as bigotry evangelical anti-Catholie if Protestant schools and yeshivas Orthodox Jewish pervasively were never sectar- ian29), equates and it a refusal to aid schools with (as hostility religion if teaching aid to were not 29Indeed, curiae, amici one group which consists of and “religious educational leaders from a broad range of both Eastern and Western reli traditions, Methodist, gious Jewish and Seventh-day Adventist indi administrators, viduals” including “church administrators of religious ele mentary systems; and secondary school elementary and secondary school schools; teachers at religious and pastors and who on laity serve church boards,” school identifies its members as “broad having experience teach ing in and administering pervasively sectarian Brief for schools.” Inter faith Keligious Liberty Foundation et al. as Amici Curiae 1. in
opposed this case very at least one religious respond- ent30 and numerous religious amici curiae31 in a tradition descent from claiming Williams). Roger My concern with these arguments not so goes much to their details32 as it does to the fact that the choice plurality’s to employ imputa- tions of bigotry irreligión terms in the Court’s debate makes one point clear: that rejecting of no principle aid to a school’s mission plurality attacking the most fundamental assumption underlying Establish- ment Clause, that government can in fact with operate neu- trality its relation to I believe religion. it can, and so respectfully dissent. 30One of the respondents describes herself aas “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 aid has on the religious mission of schools run by her church.” Brief for Respondents 1. has She been a *99 member of the church for about 36 years, and six of her children attended different Jefferson Parish Catholic run Id., schools. 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 1do not think it worthwhile to comment at length, for example, on the plurality’s dear misunderstanding of our access-to-public-forum cases, such as Lamb’s Chapel Vincent, Widmar v. (1981), S. 263 “decisions that have prohibited governments from discriminating distribution public benefits on based religious status or ante, sincerity,” they when were decided on completely different and narrowly lim ited free-speech grounds. Nor would it be worthwhile here engage in extended discussion of why goal of preventing courts from having to “trol[l] through a person’s or institution’s ibid., religious beliefs,” calls for less aid and commingling of government with religion, not for tolerance of their effects.