Mitchell v. Helms
Opinion of the Court
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.
As part of a longstanding school-aid program known as Chapter 2, the Federal Government distributes funds to state and local governmental agencies, which in turn lend educational materials and equipment to public and private schools, with the enrollment of each participating school determining the amount of aid that it receives. The question is whether Chapter 2, as applied in Jefferson Parish, Louisiana, is a law respecting an establishment of religion, because many of the private schools receiving Chapter 2 aid in that parish are religiously affiliated. We hold that Chapter 2 is not such a law.
I
A
Chapter 2 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97-35, 95 Stat. 469, as amended, 20 TJ. S. C. §§ 7301-7373,
“for the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials.” 20 U. S. C. § 7351(b)(2).
LEA’s and SEA’s must offer assistance to both public and private schools (although any private school must be nonprofit). §§ 7312(a), 7372(a)(1). Participating private schools receive Chapter 2 aid based on the number of children enrolled in each school, see § 7372(a)(1), and allocations of Chapter 2 funds for those schools must generally be “equal (consistent with the number of children to be served) to expenditures for programs . . . for children enrolled in the public schools of the [LEA],” § 7372(b). LEA’s must in all cases “assure equitable participation” of the children of private schools “in the purposes and benefits” of Chapter 2. § 7372(a)(1); see § 7372(b). Further, Chapter 2 funds may only “supplement and, to the extent practical, increase the level of funds that would ... be made available from non-Federal sources.” § 7371(b). LEA’s and SEA’s may not operate their programs “so as to supplant funds from non-Federal sources.” Ibid.
Several restrictions apply to aid to private schools. Most significantly, the “services, materials, and equipment” provided to private schools must be “secular, neutral, and non-ideological.” § 7372(a)(1). In addition, private schools may not acquire control of Chapter 2 funds or title to Chapter 2
In Jefferson Parish (the Louisiana governmental unit at issue in this case), as in Louisiana as a whole, private schools have primarily used their allocations for nonrecurring expenses, usually materials and equipment. In the 1986-1987 fiscal year, for example, 44% of the money budgeted for private schools in Jefferson Parish was spent by LEA’s for acquiring library and media materials, and 48% for instructional equipment. Among the materials and equipment provided have been library books, computers, and computer software, and also slide and movie projectors, overhead projectors, television sets, tape recorders, VCR’s, projection screens, laboratory equipment, maps, globes, filmstrips, slides, and cassette recordings.
It appears that, in an average year, about 30% of Chapter 2 funds spent in Jefferson Parish are allocated for private schools. For the 1985-1986 fiscal year, 41 private schools participated in Chapter 2. For the following year, 46 participated, and the participation level has remained relatively constant since then. See App. 132a. Of these 46, 34 were Roman Catholic; 7 were otherwise religiously affiliated; and 5 were not religiously affiliated.
B
Respondents filed suit in December 1985, alleging, among other things, that Chapter 2, as applied in Jefferson Parish,
In 1990, after extended discovery, Chief Judge Heebe of the District Court for the Eastern District of Louisiana granted summary judgment in favor of respondents. Helms v. Cody, Civ. A. No. 85-5533, 1990 WL 36124 (Mar. 27), App. to Pet. for Cert. 137a. He held that Chapter 2 violated the Establishment Clause because, under the second part of our three-part test in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), the program had the primary effect of advancing religion. Chapter 2 had sueh effect, in his view, because the materials and equipment loaned to the Catholic schools were direct aid to those schools and because the Catholic schools were, he concluded after detailed inquiry into their doctrine and curriculum, “pervasively sectarian.” App. to Pet. for Cert. 151a. Chief Judge Heebe relied primarily on Meek v. Pittenger, 421 U. S. 349 (1975), and Wolman v. Walter, 433 U. S. 229 (1977), in which we held unconstitutional programs that provided many of the same sorts of materials and equipment as does Chapter 2. In 1994, after having resolved the numerous other issues in the ease, he issued an order permanently excluding pervasively sectarian schools in Jefferson Parish from receiving any Chapter 2 materials or equipment.
Two years later, Chief Judge Heebe having retired, Judge Livaudais received the ease. Ruling in early 1997 on post-judgment motions, he reversed the decision of former Chief Judge Heebe and upheld Chapter 2, pointing to several significant changes in the legal landscape over the previous seven years. Helms v. Cody, 1997 WL 35283 (Jan. 28), App. to Pet. for Cert. 79a. In particular, Judge Livaudais cited our 1993 decision in Zobrest v. Catalina Foothills School Dish, 509 U. S. 1, in which we held that a State could, as part
Judge Livaudais also relied heavily on a 1995 decision of the Court of Appeals for the Ninth Circuit, Walker v. San Francisco Unified School Dist., 46 F. 3d 1449, upholding Chapter 2 on facts that he found “virtually indistinguishable.” The Ninth Circuit acknowledged in Walker, as Judge Heebe had in his 1990 summary judgment ruling, that Meek and Wolman appeared to erect a constitutional distinction between providing textbooks (permissible) and providing any other in-kind aid (impermissible). 46 F. 3d, at 1464-1465; see Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968) (upholding textbook program). The Court of Appeals viewed this distinction, however, as “thin” and “unmoored from any Establishment Clause principles,” and, more importantly, as “rendered untenable” by subsequent cases, particularly Zobrest. 46 F. 3d, at 1465-1466. These cases, in the Ninth Circuit’s view, revived the principle of Allen and of Everson v. Board of Ed. of Ewing;
Finally, in addition to relying on our decision in Zobrest and the Ninth Circuit’s decision in Walker, Judge Livaudais invoked Rosenberger v. Rector and Visitors of Univ. of Va., 615 U. S. 819 (1995), in which, a few months after Walker, we held that the Establishment Clause does not require a public university to exclude a student-run religious publication from assistance available to numerous other student-run publications.
Following Judge Livaudais’ ruling, respondents appealed to the Court of Appeals for the Fifth Circuit. While that appeal was pending, we decided Agostini, in which we approved a program that, under Title I of the ESEA, provided public employees to teach remedial classes at private schools, including religious schools. In so holding, we overruled Aguilar v. Felton, 473 U. S. 402 (1985), and partially overruled School Dish of Grand Rapids v. Ball, 473 U. S. 373 (1985), both of which had involved such a program.
The Fifth Circuit thus faced a dilemma between, on the one hand, the Ninth Circuit’s holding and analysis in Walker and our subsequent decisions in Rosenberger and Agostini, and, on the other hand, our holdings in Meek and Wolman. To resolve the dilemma, the Fifth Circuit abandoned any effort to find coherence in our ease law or to divine the future course of our decisions and instead focused on our particular holdings. Helms v. Picard, 151 F. 3d 347, 371 (1998). It thought such an approach required not only by the lack of coherence but also by Agostini’s admonition to lower courts to abide by any applicable holding of this Court even though that holding might seem inconsistent with our subsequent decisions, see Agostini, 521 U. S., at 237. The Fifth Circuit acknowledged that Agostini, by recognizing our rejection of the rule that “all government aid that directly assists the
II
The Establishment Clause of the First Amendment dictates that “Congress shall make no law respecting an establishment of religion.” In the over 50 years since Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), we have consistently struggled to apply these simple words in the context of governmental aid to religious schools.
In Agostini, however, we brought some clarity to our ease law, by overruling two anomalous precedents (one in whole, the other in part) and by consolidating some of our previously disparate considerations under a revised test. Whereas in Lemon we had considered whether a statute (1) has a secular purpose, (2) has a primary effect of advancing or inhibiting religion, or (3) creates an excessive entanglement between government and religion, see 403 U. S., at 612-613, in Agostini we modified Lemon for purposes of evaluating aid to schools and examined only the first and second factors, see 521 U. S., at 222-223. We acknowledged
“To summarize, New York City’s Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement.” Id., at 234.
In this case, our inquiry under Agostini’s purpose and effect test is a narrow one. Because respondents do not challenge the District Court’s holding that Chapter 2 has a secular purpose, and because the Fifth Circuit also did not question that holding, ef. 151 F. 3d, at 369, n. 17, we will consider only Chapter 2’s effect. Further, in determining that effect, we will consider only the first two Agostini criteria, since neither respondents nor the Fifth Circuit has questioned the District Court’s holding, App. to Pet. for Cert. 108a, that Chapter 2 does not create an excessive entanglement. Considering Chapter 2 in light of our more recent ease law, we conclude that it neither results in religious indoctrination by the government nor defines its recipients by reference to religion. We therefore hold that Chapter 2 is not a “law respecting an establishment of religion.” In so holding, we acknowledge what both the Ninth and Fifth Circuits saw was inescapable — Meek and Wolman are anomalies in our case law. We therefore conclude that they are no longer good law.
As we indicated in Agostini, and have indicated elsewhere, the question whether governmental aid to religious schools results in governmental indoctrination is ultimately a question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action. See Agostini, supra, at 226 (presence of sign-language interpreter in Catholic school “ ‘cannot be attributed to state decisionmaking’ ” (quoting Zobrest, 509 U. S., at 10) (emphasis added in Agostini))', 521 U. S., at 230 (question is whether “any use of [governmental] aid to indoctrinate religion could be attributed to the State”); see also Rosenberger, 515 U. S., at 841-842; Witters v. Washington Dept., of Servs. for Blind, 474 U. S. 481, 488-489 (1986); Mueller v. Allen, 463 U. S. 388, 397 (1983); cf. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 337 (1987) (“For a law to have forbidden 'effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence”). We have also indicated that the answer to the question of indoctrination will resolve the question whether a program of educational aid “subsidizes” religion, as our religion eases use that term. See Agostini, 521U. S., at 230-231; see also id., at 230.
In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any par
As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so “only as a result of the genuinely independent and private choices of individuals.” Agostini, supra, at 226 (internal quotation marks omitted). We have viewed as significant whether the “private choices of individual parents,” as opposed to the “unmediated” will of government, Ball, 473 U. S., at 395, n. 13 (internal quotation marks omitted), determine what schools ultimately benefit from the governmental aid, and how much. For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment. Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any governmental aid program, see, e. g., Gilder, The Revitalization of Everything: The Law of the Macrocosm, Harv. Bus. Rev. 49 (Mar./Apr. 1988), and that could lead to a program inadvertently favoring one religion or favoring religious private schools in general over nonreligious ones.
The principles of neutrality and private choice, and their relationship to each other, were prominent not only in Agos-
“The service at issue in this ease is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the [statute], without regard to the ‘sectarian-nonseetarian, or publie-nonpublic nature’ of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents. In other words, because the [statute] creates no financial incentive for parents to choose a sectarian school, an interpreter’s presence there cannot be attributed to state decisionmaking.” 509 U. S., at 10.
As this passage indicates, the private choices helped to ensure neutrality, and neutrality and private choices together eliminated any possible attribution to the government even when the interpreter translated classes on Catholic doctrine.
Witters and Mueller employed similar reasoning. In Witters, we held that the Establishment Clause did not bar a State from including within a neutral program providing tuition payments for vocational rehabilitation a blind person studying at a Christian college to become a pastor, missionary, or youth director. We explained:
“Any aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients. Washington’s*812 program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited and . .. creates no financial incentive for students to undertake sectarian education. . . . [T]he fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the State.
“[I]t does not seem appropriate to view any aid ultimately flowing to the Inland Empire School of the Bible as resulting from a state action sponsoring or subsidizing religion.” 474 U. S., at 487-488 (footnote, citations, and internal quotation marks omitted).6
Further, five Members of this Court, in separate opinions, emphasized both the importance of neutrality and of private choices, and the relationship between the two. See id., at
The tax deduction for educational expenses that we upheld in Mueller was, in these respects, the same as the tuition grant in Witters. We upheld it chiefly because it “neutrally provides state assistance to a broad spectrum of citizens,” 463 U. S., at 398-399, and because “numerous, private choices of individual parents of school-age children,” id., at 399, determined which schools would benefit from the deductions. We explained that “[w]here, as here, aid to parochial schools is available only as a result of decisions of individual parents no ‘imprimatur of state approval’ can be deemed to have been conferred on any particular religion, or on religion generally.” Ibid, (citation omitted); see id., at 397 (neutrality indicates lack of state imprimatur).
Agostini's second primary criterion for determining the effect of governmental aid is closely related to the first. The second criterion requires a court to consider whether an aid program “define[s] its recipients by reference to religion.” 521 U. S., at 234. As we briefly explained in Agostini, id., at 230-231, this second criterion looks to the same set of facts as does our focus, -under the first criterion, on neutrality, see id., at 225-226, but the second criterion uses those facts to answer a somewhat different question — whether the criteria for allocating the aid “ereat[e] a financial incentive to undertake religious indoctrination,” id., at 231. In Agos-tini we set out the following rule for answering this question:
“This incentive is not present, however, where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Under such circumstances, the aid is less likely to have the effect of advancing religion.” Ibid.
We hasten to add, what should be obvious from the rule itself, that simply because an aid program offers private schools, and thus religious schools, a benefit that they did not previously receive does not mean that the program, by reducing the cost of securing a religious education, creates, under Agostini’s second criterion, an “incentive” for parents to choose such an education for their children. For any aid will have some such effect. See Allen, 392 U. S., at 244; Everson, 330 U. S., at 17; see also Mueller, 463 U. S., at 399.
B
Respondents inexplicably make no effort to address Chapter 2 under the Agostini test. Instead, dismissing Agostini as factually distinguishable, they offer two rules that they contend should govern our determination of whether Chapter 2 has the effect of advancing religion. They argue first, and chiefly, that “direct, nonineidental” aid to the primary educational mission of religious schools is always impermissible. Second, they argue that provision to religious schools of aid that is divertible to religious use is similarly impermis
1
Although some of our earlier eases, particularly Ball, 473 U. S., at 393-394, did emphasize the distinction between direct and indirect aid, the purpose of this distinction was
Indeed, Agostini expressly rejected the absolute line that respondents would have us draw. We there explained that “we have departed from the rule relied on in Ball that all government aid that directly assists the educational function of religious schools is invalid.” 521 U. S., at 225. Agostini relied primarily on Witters for this conclusion and made clear that private choice and neutrality would resolve the concerns formerly addressed by the rule in Ball. It was undeniable in Witters that the aid (tuition) would ultimately go to the Inland Empire School of the Bible and would support religious education. We viewed this arrangement, however, as no different from a government issuing a paycheck to one of its employees knowing that the employee would direct the funds to a religious institution. Both arrangements would be valid, for the same reason: “[A]ny money that ultimately went to religious institutions did so ‘only as a result of the genuinely independent and private choices of’ individuals.”
As Agostini explained, the same reasoning was at work in Zobrest, where we allowed the government-funded interpreter to provide assistance at a Catholic school, “even though she would he a mouthpiece for religious instruction,” because the interpreter was provided according to neutral eligibility criteria and private choice. 521 U. S., at 226. Therefore, the religious messages interpreted by the interpreter could not be attributed to the government, see ibid. (We saw no difference in Zobrest between the government hiring the interpreter direetly and the government providing funds to the parents who then would hire the interpreter. 509 U. S., at 13, n. 11.) We rejected the dissent’s objection that we had never before allowed “a public employee to participate directly in religious indoctrination.” See id., at 18 (opinion of Blaekmun, J.). Finally, in Agostini itself, we used the reasoning of Witters and Zobrest to conclude that remedial classes provided under Title I of the ESEA by public employees did not impermissibly finance religious indoctrination. 521 U. S., at 228; see id., at 230-232. We found it insignificant that students did not have to direetly apply for Title I services, that Title I instruction was provided to students in groups rather than individually, and that instruction was provided in the facilities of the private schools. Id., at 226-229.
To the extent that respondents intend their direct/indireet distinction to require that any aid be literally placed in the hands of schoolchildren rather than given directly to the school for teaching those same children, the very cases on which respondents most rely, Meek and Wolman, demonstrate the irrelevance of such formalism. In Meek, we justified our rejection of a program that loaned instructional materials and equipment by, among other things, pointing out that the aid was loaned to the schools, and thus was “direct
Further, respondents’ formalistic line breaks down in the application to real-world programs. In Allen, for example, although we did recognize that students themselves received and owned the textbooks, we also noted that the books provided were those that the private schools required for courses, that the schools eould collect students’ requests for books and submit them to the board of education, that the schools could store the textbooks, and that the textbooks were essential to the schools’ teaching of secular subjects. See 392 U. S., at 243-245. Whether one chooses to label this program “direct” or “indirect” is a rather arbitrary choice, one that does not further the constitutional analysis.
Of course, we have seen “special Establishment Clause dangers,” Rosenberger, 515 U. S., at 842, when money is
2
Respondents also contend that the Establishment Clause requires that aid to religious schools not be impermissibly religious in nature or be divertible to religious use. We agree with the first part of this argument but not the second. Respondents’ “no divertibility” rule is inconsistent with our more recent case law and is unworkable. So long as the governmental aid is not itself “unsuitable for use in the public schools because of religious content,” Allen, supra, at 245, and eligibility for aid is determined in a constitutionally permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern. And, of course, the use to which the aid is put does not affect the criteria governing the aid’s allocation and thus does not create any impermissible incentive under Agostini’s second criterion.
Our recent precedents, particularly Zobrest, require us to reject respondents’ argument. For Zobrest gave no consideration to divertibility or even to actual diversion. Had such things mattered to the Court in Zobrest, we would have found the case to be quite easy — for striking down rather than, as we did, upholding the program — whieh is just how the dissent saw the case. See, e. g., 509 U. S., at 18 (Black-mun, J., dissenting) (“Until now, the Court never has authorized a public employee to participate directly in religious indoctrination”); id., at 22 (“[government crosses the boundary when it furnishes the medium for communication of a religious message. ... [A] state-employed sign-language interpreter would serve as the conduit for James’ religious education, thereby assisting Salpointe [High School] in its mission of religious indoctrination”); id., at 23 (interpreter
Similarly, had we, in Witters, been concerned with diverti-bility or diversion, we would have unhesitatingly, perhaps summarily, struck down the tuition-reimbursement program, because it was certain that Witters sought to participate in it to acquire an education in a religious career from a sectarian institution. Diversion was guaranteed. Mueller took the same view as Zobrest and Witters, for we did not in Mueller require the State to show that the tax deductions were only for the costs of education in secular subjects. We declined to impose any such segregation requirement for either the tuition-expense deductions or the deductions for items strikingly similar to those at issue in Meek and Wolman, and here. See Mueller, 463 U. S., at 391, n. 2; see also id., at 414 (Marshall, J., dissenting) (“The instructional materials which are subsidized by the Minnesota tax deduction plainly may be used to inculcate religious values and belief”).
Justice O’Connor acknowledges that the Court in Zo-brest and Witters approved programs that involved actual diversion. See post, at 841 (opinion concurring in judgment). The dissent likewise does not deny that Witters involved actual diversion. See post, at 895-896, n. 16. The dissent does claim that the aid in Zobrest “was not considered divertible,” post, at 895, n. 16, but the dissent in Zobrest, which the author of today’s dissent joined, understood the case otherwise. See supra, at 820. As that dissent made clear, diversion is the use of government aid to further a religious message. See Zobrest, supra, at 21-22 (Blackmun, J., dissenting); see also post, at 842, 857 (O’Con-nor, J., concurring in judgment). By that definition, the
Respondents appear to rely on Meek and Wolman to establish their rule against “divertible” aid. But those cases offer little, if any, support for respondents. Meek mentioned divertibility only briefly in a concluding footnote, see 421 U. S., at 366, n. 16, and that mention was, at most, peripheral to the Court’s reasoning in striking down the lending of instructional materials and equipment. The aid program in Wolman explicitly barred divertible aid, 433 U. S., at 248-249, so a concern for divertibility could not have been part of our reason for finding that program invalid.
The issue is not divertibility of aid but rather whether the aid itself has an impermissible content. Where the aid would be suitable for use in a public school, it is also suitable for use in any private school. Similarly, the prohibition against the government providing impermissible content resolves the Establishment Clause concerns that exist if aid is actually diverted to religious uses.
In Agostini itself, we approved the provision of public employees to teach secular remedial classes in private schools partly because we concluded that there was no reason t© suspect that indoctrinating content would be part of such governmental aid. See 521 U. S., at 223-225, 226-227, 234-235. Relying on Zobrest, we refused to presume that the public teachers would “‘inject religious content’” into their classes, 521 U. S., at 225, especially given certain safeguards that existed; we also saw no evidence that they had done so, id, at 226-227.
In Allen we similarly focused on content, emphasizing that the textbooks were preapproved by public school authorities and were not “unsuitable for use in the public schools because of religious content.” 392 U. S., at 245. See Lemon, 403 U. S., at 617 (“We note that the dissenters in Allen seemed chiefly concerned with the pragmatic difficulties involved in ensuring the truly secular content of the textbooks” (emphasis added)). Although it might appear that a book, because it has a pre-existing content, is not divertible, and thus that lack of divertibility motivated our holding in Allen, it is hard to imagine any book that could not, in even moderately skilled hands, serve to illustrate a religious message.
A concern for divertibility, as opposed to improper content, is misplaced not only because it fails to explain why the sort of aid that we have allowed is permissible, but also because it is boundless — enveloping all aid, no matter how trivial — and thus has only the most attenuated (if any) link to any realistic concern for preventing an “establishment of religion.” Presumably, for example, government-provided lecterns, chalk, crayons, pens, paper, and paintbrushes would have to be excluded from religious schools under respondents’ proposed rule. But we fail to see how indoctrination by means of (i. e., diversion of) such aid could be attributed to the government. In fact, the risk of improper attribution is less when the aid lacks content, for there is no risk (as there is with books) of the government inadvertently providing improper content. See Allen, supra, at 255-262 (Douglas, J., dissenting). Finally, any aid, with or without content, is “divertible” in the sense that it allows schools to “divert” resources. Yet we have “ ‘not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.’ ” Regan, 444 U. S., at 658 (quoting Hunt v. McNair, 413 U. S. 734, 743 (1973)).
C
The dissent serves up a smorgasbord of 11 factors that, depending on the facts of each case “in all its particularity,” post, at 877, could be relevant to the constitutionality of a school-aid program. And those 11 are a bare minimum. We are reassured that there are likely more.
One of the dissent’s factors deserves special mention: whether a school that receives aid (or whose students receive aid) is pervasively sectarian. The dissent is correct that there was a period when this factor mattered, particularly if the pervasively sectarian school was a primary or secondary school. Post, at 885-887, 894, 898, 902-906. But that period is one that the Court should regret, and it is thankfully long past.
There are numerous reasons to formally dispense with this factor. First, its relevance in our precedents is in sharp decline. Although our case law has consistently mentioned it even in recent years, we have not struck down an aid program in reliance on this factor since 1985, in Aguilar and Ball. Agostini of course overruled Aguilar in Ml and Ball in part, and today Justice O’Connor distances herself from the part of Ball with which she previously agreed, by rejecting the distinction between public and private employees that was so prominent in Agostini. Compare post, at 858-860, 863-864 (opinion concurring in judgment), with Agos-tini, supra, at 223-225, 234-235. In Witters, a year after Aguilar and Ball, we did not ask whether the Inland Empire School of the Bible was pervasively sectarian. In Bowen, a 1988 decision, we refused to find facially invalid an aid program (although one not involving schools) whose recipients had, the District Court found, included pervasively sectarian institutions. See 487 U. S., at 636, 647, 648 (Blackmun, J., dissenting). Although we left it open on remand for the District Court to reaffirm its prior finding, we took pains to emphasize the narrowness of the “pervasively sectarian” category, see id., at 620-621 (opinion of the Court), and two
Second, the religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose. See supra, at 810. If a program offers permissible aid to the religious (including the pervasively sectarian), the areligious, and the irreligious, it is a mystery which view of religion the government has established, and thus a mystery what the constitutional violation would be. The pervasively sectarian recipient has not received any special favor, and it is most bizarre that the Court would, as the dissent seemingly does, reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole
Third, the inquiry into the recipient’s religious views required by a focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 887 (1990) (collecting cases). Yet that is just what this factor requires, as was evident before the District Court. Although the dissent welcomes such probing, see post, at 904-906, we find it profoundly troubling. In addition, and related, the application of the “pervasively sectarian” factor collides with our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Widmar v. Vincent, 454 U. S. 263 (1981).
Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. Cf. Chicago v. Morales, 527 U. S. 41,53-54, n. 20 (1999) (plurality opinion). Although the dissent professes concern for “the implied exclusion of the less favored,” post, at 868, the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” See generally Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992).
In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now.
J-H W-<
Applying the two relevant Agostini criteria, we see no basis for concluding that Jefferson Parish’s Chapter 2 program “has the effect of advancing religion.” Agostini, supra, at 234. Chapter 2 does not result in governmental indoctrination, because it determines eligibility for aid neutrally, allocates that aid based on the private choices of the parents of schoolchildren, and does not provide aid that has an impermissible content. Nor does Chapter 2 define its recipients by reference to religion.
Taking the second criterion first, it is clear that Chapter 2 aid “is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Agostini, 521 U. S., at 231. Aid is allocated based on enrollment: “Private schools receive Chapter 2 materials and equipment based on the per capita number of students at each school,” Walker, 46 F. 3d, at 1464, and allocations to private schools must “be equal (consistent with the number of children to be served) to expenditures for programs under this subchapter for children enrolled in the public schools of the [LEA],” 20 U. S. C. § 7372(b). LEA’s must provide Chapter 2 materials and equipment for the benefit
Chapter 2 also satisfies the first Agostini criterion. The program makes a broad array of schools eligible for aid without regard to their religious affiliations or lack thereof. § 7372; see § 7353(a)(3). We therefore have no difficulty concluding that Ghapter 2 is neutral with regard to religion. See Agostini, supra, at 225-226. Chapter 2 aid also, like the aid in Agostini, Zobrest, and Witters, reaches participating schools only “as a consequence of private decisionmaking.” Agostini, supra, at 222. Private decisionmaking controls because of the per capita allocation scheme, and those decisions are independent because of the program’s neutrality. See 521 U. S., at 226. It is the students and their parents— not the government — who, through their choice of school, determine who receives Chapter 2 funds. The aid follows the child.
Finally, Chapter 2 satisfies the first Agostini criterion because it does not provide to religious schools aid that has an impermissible content. The statute explicitly bars anything of the sort, providing that all Chapter 2 aid for the benefit of children in private schools shall be “secular, neutral, and nonideological,” § 7372(a)(1), and the record indicates that the Louisiana SEA and the Jefferson Parish LEA have faithfully enforced this requirement insofar as relevant to this case. The chief aid at issue is computers, computer software, and library books. The computers presumably have no preexisting content, or at least none that would be impermissible for use in public schools. Respondents do not contend
There is evidence that equipment has been, or at least easily could be, diverted for use in religious classes. See, e. g., App. 108a, 118a, 205a-207a. Justice O’Connor, however, finds the safeguards against diversion adequate to prevent and detect actual diversion. Post, at 861, 867 (opinion concurring in judgment). The safeguards on which she relies reduce to three: (1) signed assurances that Chapter 2 aid will be used only for secular, neutral, and nonideological purposes, (2) monitoring visits, and (3) the requirement that equipment be labeled as belonging to Chapter 2.
[Respondents do, however, point to some religious books that the LEA improperly allowed to be loaned to several religious schools, and they contend that the monitoring programs of the SEA and the Jefferson Parish LEA are insufficient to prevent such errors. The evidence, however, establishes just the opposite, for the improper lending of library books occurred — and was discovered and remedied — -before this litigation began almost 15 years ago.
The District Court found that prescreening by the LEA coordinator of requested library books was sufficient to prevent statutory violations, see App. to Pet. for Cert. 107a, and the Fifth Circuit did not disagree. Further, as noted, the monitoring system appears adequate to catch those errors that do occur. We are unwilling to elevate scattered de minimis statutory violations, discovered and remedied by the relevant authorities themselves prior to any litigation, to such a level as to convert an otherwise unobjectionable parishwide program into a law that has the effect of advancing religion.
IV
In short, Chapter 2 satisfies both the first and second primary criteria of Agostini. It therefore does not have the effect of advancing religion. For the same reason, Chapter 2 also “cannot reasonably be viewed as an endorsement of religion,” Agostini, 521 U. S., at 235. Accordingly, we hold that Chapter 2 is not a law respecting an establishment of religion. Jefferson Parish need not exclude religious schools from its Chapter 2 program.
Our conclusion regarding Meek and Wolman should come as no surprise. The Court as early as Wolman itself left no doubt that Meek and Allen were irreconcilable, see 433 U. S., at 251, n. 18, and we have repeatedly reaffirmed Allen since then, see, e. g., Agostini, supra, at 231. (In fact, Meek, in
The judgment of the Fifth Circuit is reversed.
It is so ordered.
Chapter 2 is now technically Subchapter VI of Chapter 70 of 20 U. S. C., where it was codified by the Improving America’s Schools Act of 1994, Pub. L. 103-382, 108 Stat. 3707. For convenience, we will use the term "Chapter 2,” as the lower courts did. Prior to 1994, Chapter 2 was codified at 20 U. S. C. §§2911-2976 (1988 ed.).
Congress in 1988 amended the section governing the sorts of materials and equipment available under Chapter 2. Compare 20 U. S. C. § 3832(1)(B) (1982 ed.) with § 7351(b)(2) (1994 ed.). The record in this case dosed in 1989, and the effect of the amendment is not at issue.
Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (upholding reimbursement to párente for costs of busing their children to public or private school).
Cases prior to Everson discussed the issue only indirectly, see, e. g., Vidal v. Philadelphia, 2 How. 127, 198-200 (1844); Quick Bear v. Leupp, 210 U. S. 50, 81 (1908), or evaluated aid to schools under other provisions of the Constitution, see Cochran v. Louisiana Bd. of Ed., 281 U. S. 370, 374-375 (1930).
Justice O’Connor acknowledges that “neutrality is an important reason for upholding government-aid programs,” one that our recent eases have “emphasized . . . repeatedly.” Post, at 838 (opinion concurring in judgment).
The majority opinion also noted that only a small portion of the overall aid under the State’s program would go to religious education, see Witters, 474 U. S., at 488, but it appears that five Members of the Court thought this point irrelevant. See id., at 491, n. 8 (Powell, J., joined by Burger, C. J., and Rehnquist, J., concurring) (citing Mueller v. Allen, 463 U. S. 388, 401 (1983), to assert that validity of program “does not depend on the fact that petitioner appeal’s to be the only handicapped student who has sought to use his assistance to pursue religious training”); 474 U. S., at 490 (White, J., concurring) (agreeing with “most of Justice Powell’s concurring opinion with respect to the relevance of Mueller,” but not specifying further); id., at 493 (O’Connor, J., concurring in part and concurring in judgment) (agreeing with Justice Powell’s reliance on Mueller and explaining that the program did not have an impermissible effect, because it was neutral and involved private choice, and thus “[n]o reasonable observer is likely to draw from the facts before us an inference that the State itself is endorsing a religious practice or belief”). More recently, in Agostini v. Felton, 521 U. S. 203 (1997), we held that the proportion of aid benefiting students at religious schools pursuant to a neutral program involving private choices was irrelevant to the constitutional inquiry. Id., at 229 (refusing “to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid”); see also post, at 848 (O’Connor, J., concurring in judgment) (quoting this passage).
Respondents also contend that Chapter 2 aid supplants, rather than supplements, the core educational function of parochial schools and therefore has the effect of furthering religion. Our case law does provide some indication that this distinction may be relevant to determining whether aid results in governmental indoctrination, see Agostini, 521 U. S., at 228-229; Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 12 (1993); but see School Dist. of G'rand Rapids v. Ball, 473 U. S. 373, 396 (1985), but we have never delineated the distinction’s contours or held that it is constitutionally required.
Nor, to the extent that the supplement/supplant line is separable from respondents’ direct/indireet and “no divertibility” arguments, do we need to resolve the distinction’s constitutional status today, for, as we have already noted, Chapter 2 itself requires that aid may only be supplemental. 20 U. S. C. § 7371(b). See also post, at 867 (O’Connor, J., concurring in judgment) (declining to decide whether supplement/supplant distinction is a constitutional requirement); but see post, at 852 (explaining that computers are “necessary” to "the educational process”). We presume that whether a parish has complied with that statutory requirement would be, at the very least, relevant to whether a violation of any constitutional supplement/supplant requirement has occurred, yet we have no reason to believe that there has been any material statutory violation. A statewide review by the Louisiana SEA indicated that § 7371(b) receives nearly universal compliance. App. 112a. More importantly, neither the District Court nor the Fifth Circuit even hinted that Jefferson Parish had violated § 7371(b), and respondents barely mention the statute in their brief to this Court, offering only the slimmest evidence of any possible violation, see id., at 63a. Respondents argue that any Chapter 2 aid that a school uses to comply with state requirements (such as those relating to computers and libraries) necessarily violates whatever supplement/supplant line may exist in the Constitution, but our decision in Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646 (1980), upholding reimbursement to parochial schools of costs relating to state-mandated testing, rejects any such blanket rule.
The reason for such concern is not that the form per se is bad, but that such a form creates special risks that governmental aid will have the effect of advancing religion (or, even more, a purpose of doing so). An indirect form of payment reduces these risks. See Mueller, 463 U. S., at 399 (neutral tax deduction, because of its indirect form, allowed economic benefit to religious schools only as result of private choice and thus did not suggest state sanction of schools’ religious messages). It is arguable, however, at least after Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), that the principles of neutrality and private choice would be adequate to address those special risks, for it is hard to see the basis for deciding Witters differently simply if the State had sent the tuition check directly to whichever school Witters chose to attend. See Rosen-berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 848 (1995) (O’Connor, J., concurring) (explaining Witters as reconciling principle of neutrality with principle against public funding of religious messages by relying on principle of private choice). Similarly, we doubt it would be unconstitutional if, to modify Witters’ hypothetical, see 474 U. S., at 486-487; supra, at 816, a government employer directly sent a portion of an employee’s paycheck to a religious institution designated by that employee pursuant to a neutral charitable program. We approved a similar arrangement in Quick Bear, 210 U. S., at 77-82, and the Federal Government appears to have long had such a program, see 1999 Catalog of Caring: Combined Federal Campaign of the National Capital Area 44, 45, 59, 74-75 (listing numerous religious organizations, many of which engage in religious education or in proselytizing, to which federal employees may contribute via payroll deductions); see generally Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 (1985) (discussing Combined Federal Campaign). Finally, at least some of our prior cases striking down direct payments involved serious concerns about whether the payments were truly neutral. See, e. g., Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 762-764, 768, 774-780 (1973) (striking down, by 8-to-l vote, program providing direct grants for maintenance and repair of school facilities, where payments were allocated per-pupil but were only
The dissent would find an establishment of religion if a government-provided projector were used in a religious school to show a privately purchased religious film, even though a public school that possessed the same kind of projector would likely be constitutionally barred from refusing to allow a student bible club to use that projector in a classroom to show the very same film, where the classrooms and projectors were generally available to student groups. See Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1998).
Although we did, elsewhere in Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968), observe, in response to a party’s argument, that there was no evidence that the schools were using secular text
Justice O’Connor agrees that the Constitution does not bar divertible aid. See post, at 857 (opinion concurring in judgment). She also finds actual diversion unproblematic if “true private-choice” directs the aid. See post, at 842. And even when there is not such private choice, she thinks that some amount of actual diversion is tolerable and that safeguards for preventing and detecting actual diversion may be minimal, as we explain further, infra, at 832-834.
It is thus surprising for the dissent to accuse us of following a rule of “breathtaking... manipulability.” Post, at 901, n. 19.
Nor does Justice O’Connor do so today in her analysis of Jefferson Parish’s Chapter 2 program.
Many of the other safeguards on which Justice O’Connor relies are safeguards against improper content, not against diversion. See post, at 862, 863 (opinion concurring in judgment). Content is a different matter from diversion and is much easier to police than is the mutable use of materials and equipment (which is one reason that we find the safeguards against improper content adequate, infra, at 834-835). Similarly, the statutory provisions against supplanting nonfederal funds and against paying federal funds for religious worship or instruction, on which Justice O’Connor also relies, post, at 861, are of little, if any, relevance to diversion — the former because diversion need not supplant, and the latter because religious schools receive no funds, 20 U. S. C. § 7372(c)(1).
The SEA director acknowledged as much when he said that the SEA enforces the rule against diversion “as best we can,” only visits “[o]ne or two” of the private schools whenever it reviews an LEA, and reviews each LEA only onee every three years. App. 94a-95a. When asked whether there was “any way” for SEA officials to know of diversion of a Chapter 2 computer, he responded, “No, there is no way.” Id., at 118a.
Monitoring by the Jefferson Parish LEA is similarly ineffective. The LEA visits each private school only once a year, for less than an hour and a half, and alerts the school to the visit in advance. Id., at 142a, 151a-152a, 182a-183a. The monitoring visits consist of reviewing records of equipment use and of speaking to a single contact person. Self-reporting is the sole source for the records of use. Id., at 140a. In the case of overhead
“Q: Would there be any way to ascertain, from this on-site visit, whether the material or equipment purchased are used not only in accordance with Chapter 2 plan submitted, but for other purposes, also?
“A: No.
“Q: Now, would it be your view that a church-affiliated school that would teach the creation concept of the origin of man, that if they used [a Chapter 2] overhead projector, that would be a violation... ?
“A: Yes.
“Q: Now, is there any way, do you ever ask that question of a church-affiliated school, as to whether they use it for that purpose?
“A: No.” App. 144a, 150a-151a.
See id., at 139a, 145a, 146a-147a (similar).
In fact, a label, by associating the government with any religious use of the equipment, exacerbates any Establishment Clause problem that might exist when diversion occurs.
Justice O’Connor dismisses as de minimis the evidence of actual diversion. Post, at 864-865 (opinion concurring in judgment). That may be, but it is good to realize just what she considers de minimis. There is
The coordinator of the Jefferson Parish LEA ordered the books recalled sometime in the summer or early fall of 1985, and it appears that the schools had complied with the recall order by the second week of December 1985. App. 162a, 80a-81a. Respondents filed suit in early December. This self-correction is a key distinction between this instance of providing improper content and the evidence of actual diversion. See n. 17, supra.
Indeed, as petitioners observe, to require exclusion of religious schools from such a program would raise serious questions under the Free Exercise Clause. See, e. g., Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520,532 (1993) (“At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs”); Everson, 330 U. S., at 16; cf Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1996) (holding that Free Speech Clause bars exclusion of religious viewpoints from limited public forum).
Concurring Opinion
with whom Justice Breyer joins, concurring in the judgment.
In 1965, Congress passed the Elementary and Secondary Education Act, 79 Stat. 27 (1965 Act). Under Title I, Congress provided monetary grants to States to address the needs of educationally deprived children of low-income families. Under Title II, Congress provided further monetary
I — I
I write separately because, in my view, the plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school aid programs. Reduced to its essentials, the plurality's rule states that government aid to religious schools does not have the effect of advancing religion so long as the aid is offered on a neutral basis and the aid is secular in content. The plurality also rejects the distinction between direct and indirect aid, and holds that the actual diversion of secular aid by a religious school to the advancement of its religious mission is permissible. Although the expansive scope of the plurality's rule is troubling, two specific aspects of the opinion compel me to write separately. First, the plurality’s treatment of neutrality comes close to assigning that faetor singular importance in the future adjudication of Establishment Clause challenges to government school aid programs. Second, the plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with our
The clearest example of the plurality’s near-absolute position with respect to neutrality is found in its following statement:
“If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.” Ante, at 809-810 (citation omitted).
I agree with Justice Souter that the plurality, by taking such a stance, “appears to take evenhandedness neutrality and in practical terms promote it to a single and sufficient test for the establishment constitutionality of school aid.” Post, at 900 (dissenting opinion).
I do not quarrel with the plurality’s recognition that neutrality is an important reason for upholding government-aid programs against Establishment Clause challenges. Our cases have described neutrality in precisely this mannei’, and we have emphasized a program’s neutrality repeatedly in our decisions approving various forms of school aid. See, e. g., Agostini, supra, at 228, 231-282; Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 10 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487-488 (1986); id., at 493 (O’Connor, J., concurring in part and concurring
Justice Souter provides a comprehensive review of our Establishment Clause cases on government aid to religious institutions that is useful for its explanation of the various ways in which we have used the term “neutrality” in our decisions. See post, at 878-883. Even if we at one time used the term “neutrality” in a descriptive sense to refer to those aid programs characterized by the requisite equipoise between support of religion and antagonism to religion, Justice Souter’s discussion convincingly demonstrates that the evolution in the meaning of the term in our jurisprudence is cause to hesitate before equating the neutrality of recent decisions with the neutrality of old. As I have previously explained, neutrality is important, but it is by no means the only “axiom in the history and precedent of the Establishment Clause.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 846 (1995) (concurring opinion). Thus,
I also disagree with the plurality’s conclusion that actual diversion of government aid to religious indoctrination is consistent with the Establishment Clause. See ante, at 820-825. Although “[o]ur eases have permitted some government funding of secular functions performed by sectarian organizations,” our decisions “provide no precedent for the use of public funds to finance religious activities.” Rosenberger, supra, at 847 (O’Connor, J., concurring). At least two of the decisions at the heart of today’s case demonstrate that we have long been concerned that secular government aid not be diverted to the advancement of religion. In both Agostini, our most recent school aid case, and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968), we rested our approval of the relevant programs in part on the fact that the aid had not been used to advance the religious missions of the recipient schools. See Agostini, supra, at 226-227 (“[N]o evidence has ever shown that any New York City Title I instructor teaching on parochial school premises attempted to inculcate religion in students”); Allen, supra, at 248 (“Nothing in this record supports the proposition that all textbooks, whether they deal with mathematics, physics, foreign languages, history, or literature, are used by the parochial schools to teach religion”). Of course, our focus on the lack of such evidence would have been entirely unnecessary if we had believed that the Establishment Clause permits the actual diversion of secular government aid to religious indoctrination. Our decision in Bowen v. Kendrick, 487 U. S. 589 (1988), also demonstrates that actual diversion is constitutionally impermissible. After eonclud-
The plurality bases its holding that actual diversion is permissible on Witters and Zobrest. Ante, at 820-821. Those decisions, however, rested on a significant factual premise missing from this ease, as well as from the majority of cases thus far considered by the Court involving Establishment Clause challenges to school aid programs. Specifically, we decided Witters and Zobrest on the understanding that the aid was provided directly to the individual student who, in turn, made the choice of where to put that aid to use. See Witters, 474 U. S., at 488; Zobrest, 609 U. S., at 10, 12. Accordingly, our approval of the aid in both eases relied to a significant extent on the fact that “[a]ny aid . . . that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.” Witters, supra, at 487; see Zobrest, supra, at 10 (“[A] government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents”). This characteristic of both programs made them less like a direct subsidy, which would be impermissible under the Establishment Clause, and more akin to the government issuing a paycheck to an employee who, in turn, donates a portion of that cheek to a religious institution. See, e. g., Witters, supra, at 486-487; see also Rosenberger, supra, at 848 (O’Connor, J., concurring) (discussing Witters).
Second, I believe the distinction between a per capita school aid program and a true private-choice program is significant for purposes of endorsement. See, e. g., Lynch v. Donnelly, 465 U. S. 668, 692 (1984) (O’Connor, J., concurring). In terms of public perception, a government program of direct aid to religious schools based on the number of students attending each school differs meaningfully from the government distributing aid directly to individual students
Finally, the distinction between a per-capita-aid program and a true private-choice program is important when considering aid that consists of direct monetary subsidies. This Court has “recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions.” Rosenberger, 515 U. S., at 842; see also ibid, (collecting cases). If, as the plurality contends, a per-capita-aid program is identical in relevant constitutional respects to a true private-choice program, then there is no reason that, under the plurality’s reasoning, the government should be precluded from providing direct money payments
Our school aid cases often pose difficult questions at the intersection of the neutrality and no-aid principles and therefore defy simple categorization under either rule. As I explained in Rosenberger, “[rjesolution instead depends on the hard task of judging — sifting through the details and determining whether the challenged program offends the Establishment Clause. Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each ease.” 515 U. S., at 847 (concurring opinion). Agostini represents our most recent attempt to devise a general framework for approaching questions concerning neutral school aid programs. Agostini also concerned an Establishment Clause challenge to a school aid program closely related to the one at issue here. For these reasons, as well as my disagreement with the plurality’s approach, I would decide today’s case by applying the criteria set forth in Agostini.
II
In Agostini, after reexamining our jurisprudence since School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), we explained that the general principles used to determine whether government aid violates the Establishment Clause have remained largely unchanged. 521 U. S., at 222. Thus,
Respondents neither question the secular purpose of the Chapter 2 (Title II) program nor contend that it creates an excessive entanglement. (Due to its denomination as Chapter 2 of the Education Consolidation and Improvement Act of 1981, 95 Stat. 469, the parties refer to the 1965 Act’s Title II program, as modified by subsequent legislation, as “Chapter 2.” For ease of reference, I will do the same.) Accordingly, for purposes of deciding whether Chapter 2, as applied in Jefferson Parish, Louisiana, violates the Establishment Clause, we need ask only whether the program results in governmental indoctrination or defines its recipients by reference to religion.
Taking the second inquiry first, it is clear that Chapter 2 does not define aid recipients by reference to religion. In Agostini, we explained that scrutiny of the manner in which a government-aid program identifies its recipients is important because “the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination.” 521 U. S., at 231. We then clarified that this financial incentive is not present
Agostini next requires us to ask whether Chapter 2 “result[s] in governmental indoctrination.” 521 U. S., at 234. Because this is a more complex inquiry under our case law, it is useful first to review briefly the basis for our decision in Agostini that New York City’s Title I program did not result in governmental indoctrination. Under that program, public-school teachers provided Title I instruction to eligible
In Agostini, we recognized that “[o]ur more recent eases [had] undermined the assumptions upon which Ball and Aguilar relied.” 521 U. S., at 222. First, we explained that the Court had since abandoned “the presumption erected in Meek and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” Id., at 223. Rather, relying on Zobrest, we explained that in the absence of evidence showing that teachers were actually using the Title I aid to inculcate religion, we would presume that the instructors would comply with the program’s secular restrictions. See Agostini, 521 U. S., at 223-224, 226-227. The Title I services were required by statute to be “ 'secular, neutral, and nonideological.’ ” Id., at 210 (quoting 20U.S.C. § 6321(a)(2)).
Second, we noted that the Court had “departed from the rule relied on in Ball that all government aid that directly assists the educational function of religious schools is invalid.” Agostini, supra, at 225. Relying on Witters and Zobrest, we noted that our cases had taken a more forgiving view of neutral government programs that make aid available generally without regard to the religious or nonreligious character of the recipient school. See Agostini, 521 U. S., at 225-226. With respect to the specific Title I pro
The Chapter 2 program at issue here bears the same hallmarks of the New York City Title I program that we found important in Agostini. First, as explained above, Chapter 2 aid is distributed on the basis of neutral, secular criteria. The aid is available to assist students regardless of whether they attend public or private nonprofit religious schools. Second, the statute requires participating SEA’s and LEA’s to use and allocate Chapter 2 funds only to supplement the funds otherwise available to a religious school. 20 U. S. C. § 7371(b). Chapter 2 funds must in no ease be used to supplant funds from non-Federal sources. Ibid. Third, no Chapter 2 funds ever reach the coffers of a religious school. Like the Title I program considered in Agostini, all Chapter 2 funds are controlled by public agencies — the SEA’s and LEA’s. § 7372(c)(1). The LEA’s purchase instructional and educational materials and then lend those materials to public and private schools. See §§ 7351(a), (b)(2). With respect to lending to private schools under Chapter 2, the statute
Respondents contend that Agostini is distinguishable, pointing to the distinct character of the aid program considered there. See Brief for Respondents 44-47. In Agostini, federal funds paid for public-school teachers to provide secular instruction to eligible children on the premises of their religious schools. Here, in contrast, federal funds pay for instructional materials and equipment that LEA’s lend to religious schools for use by those schools’ own teachers in their classes. Because we held similar programs unconstitutional in Meek and Wolman, respondents contend that those decisions, and not Agostini, are controlling. See, e. g., Brief for Respondents 11,22-25. Like respondents, Justice Souter also relies on Meek and Wolman in finding the character of the Chapter 2 aid constitutionally problematic. See post, at 893, 903.
At the time they were decided, Meek and Wolman created an inexplicable rift within our Establishment Clause jurisprudence concerning government aid to schools. Seven years before our decision in Meek, we held in Allen that a New York statute that authorized the lending of textbooks to students attending religious schools did not violate the
In Meek and Wolman, we adhered to Allen, holding that the textbook lending programs at issue in each case did not violate the Establishment Clause. See Meek, 421 U. S., at 359-362 (plurality opinion); Wolman, 433 U. S., at 236-238 (plurality opinion). At the same time, however, we held in both eases that the lending of instructional materials and equipment to religious schools was unconstitutional. See Meek, supra, at 362-366; Wolman, supra, at 248-251. We reasoned that, because the religious schools receiving the materials and equipment were pervasively sectarian, any assistance in support of the schools’ educational missions would inevitably have the impermissible effect of advancing religion. For example, in Meek we explained:
“[I]t would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania’s church-related elementary and secondary schools and to then characterize [the statute] as channeling aid to the secular without providing direct aid to the sectarian. Even though earmarked for secular purposes, 'when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission,’ state aid has the impermissible primary effect of advancing religion.” 421 U. S., at 365-366 (quoting Hunt v. McNair, 413 U. S. 734, 743 (1973)).
For whatever reason, the Court was not willing to extend this presumption of inevitable religious indoctrination to school aid when it instead consisted of textbooks lent free of charge. For example, in Meek, despite identifying the religious schools’ secular educational functions and religious missions as inextricably intertwined, 421 U. S., at 366, the Court upheld the textbook lending program because “the record in the case ..., like the record in Allen, contains no suggestion that religious textbooks will be lent or that the books provided will be used for anything other than purely secular purposes,” id., at 361-362 (citation omitted). Accordingly, while the Court was willing to apply an irrebutta-ble presumption that secular instructional materials and equipment would be diverted to use for religious indoctrination, it required evidence that religious schools were diverting secular textbooks to religious instruction.
The inconsistency between the two strands of the Court’s jurisprudence did not go unnoticed, as Justices on both sides of the Meek and Wolman decisions relied on the contradiction to support their respective arguments. See, e. g., Meek, 421 U. S., at 384 (Brennan, J., concurring in part and dissenting in part) (“[W]hat the Court says of the instructional materials and equipment may be said perhaps even more accurately of the textbooks” (citation omitted)); id., at 390 (Rehnquist, J., concurring in judgment in part and dissenting in part) (“The failure of the majority to justify the differing approaches to textbooks and instructional materials and
Indeed, technology’s advance since the Allen, Meek, and Wolman decisions has only made the distinction between textbooks and instructional materials and equipment more suspect. In this case, for example, we are asked to draw a constitutional line between lending textbooks and lending computers. Because computers constitute instructional equipment, adherence to Meek and Wolman would require the exclusion of computers from any government school aid program that includes religious schools. Yet, computers are now as necessary as were schoolbooks 30 years ago, and they play a somewhat similar role in the educational process. That Allen, Meek, and Wolman would permit the constitutionality of a school aid program to turn on whether the aid took the form of a computer rather than a book further reveals the inconsistency inherent in their logic.
Respondents insist that there is a reasoned basis under the Establishment Clause for the distinction between textbooks and instructional materials and equipment. They claim that the presumption that religious schools will use instructional materials and equipment to inculcate religion is sound because such materials and equipment, unlike textbooks, are reasonably divertible to religious uses. For example, no matter what secular criteria the government employs in selecting a film projector to lend to a religious school, school officials can always divert that projector to re
I would reject respondents’ proposed divertibility rule. First, respondents cite no precedent of this Court that would require it. The only possible direct precedential support for such a rule is a single sentence contained in a footnote from our Wolman decision. There, the Court described Allen as having been “premised on the view that the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses.” Wol-man, supra, at 251, n. 18. To the extent this simple description of Allen is even correct, it certainly does not constitute an actual holding that the Establishment Clause prohibits the government from lending any divertible aid to religious schools. Rather, as explained above, the Wolman Court based its holding invalidating the lending of instructional materials and equipment to religious schools on the rationale adopted in Meek — that the secular educational function of a religious school is inseparable from its religious mission. See Wolman, 433 U. S., at 250. Indeed, if anything, the Wol-man footnote confirms the irrationality of the distinction between textbooks and instructional materials and equipment. After the Wolman Court acknowledged that its holding with respect to instructional materials and equipment was in tension with Allen, the Court explained the continuing validity of Allen solely on the basis of stare decisis: “Board of Education v. Allen has remained law, and we now follow as a matter of stare decisis the principle that restriction of textbooks to those provided the public schools is sufficient to ensure
Justice Souter’s attempt to defend the divertibility rationale as a viable distinction in our Establishment Clause jurisprudence fares no better. For Justice Souter, secular school aid presents constitutional problems not only when it is actually diverted to religious ends, but also when it simply has the capacity for, or presents the possibility of, such diversion. See, e. g., post, at 893 (discussing “susceptibility [of secular supplies] to the service of religious ends”). Thus, he explains the Allen, Meek, and Wolman decisions as follows: “While the textbooks had a known and fixed secular content not readily divertible to religious teaching purposes, the adaptable materials did not.” Post, at 893-894. This view would have come as a surprise to the Court in Meek, which expressly conceded that “the material and equipment that are the subjects of the loan . . . are ‘self-poliefing], in that starting as secular, nonideological and neutral, they will not change in use.’” 421 U. S., at 365 (quoting Meek v. Pit-tenger, 374 F. Supp. 639, 660 (ED Pa. 1974)). Indeed, given the nature of the instructional materials considered in Meek and Wolman, it is difficult to comprehend how a divertibility rationale could have explained the decisions. The statutes at issue in those cases authorized the lending of “periodicals, photographs, maps, charts, sound recordings, [and] films,” Meek, supra, at 355, and “maps and globes,” Wolman, supra, at 249. There is no plausible basis for saying that these items are somehow more divertible than a textbook given that each of the above items, like a textbook, has a fixed and ascertainable content.
In any event, even if Meek and Wolman had articulated the divertibility rationale urged by respondents and Justice
To the extent Justice Souter believes several related Establishment Clause decisions require application of a divertibility rule in the context of this ease, I respectfully disagree. Justice Souter is correct to note our continued recognition of the special dangers associated with direct money grants to religious institutions. See post, at 890-893. It does not follow, however, that we should treat as eonstitu-
Justice Souter also relies on our decisions in Wolman (to the extent it concerned field-trip transportation for nonpublic schools), Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 (1973), Tilton v. Richardson, 403 U. S. 672 (1971), and Bowen. See post, at 893-895. None requires application of a divertibility rule in the context of this case. Wolman and Levitt were both based on the same presumption that government aid will be used in the inculcation of religion that we have chosen not to apply to textbook lending programs and that we have more generally rejected in recent decisions. Compare Wolman, 433 U. S., at 254; Levitt, supra, at 480, with supra, at 851-852; infra, at 859. In Tilton, we considered a federal statute that authorized grants to universities for the construction of buildings and facilities to be used exclusively for secular educational purposes. See 403 U. S., at 674-675. We held the statute unconstitutional only to the extent that a university’s “obligation not to use the facility for sectarian instruction or religious worship . . . appeared] to expire at the end of 20 years.” Id., at 683. To hold a statute unconstitutional because it lacks a secular content restriction is quite different
IV
Because divertibility fails to explain the distinction our cases have drawn between textbooks and instructional materials and equipment, there remains the question of which of the two irreconcilable strands of our Establishment Clause jurisprudence we should now follow. Between the two, I would adhere to the rule that we have applied in the context of textbook lending programs: To establish a First Amendment violation, plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes. See Meek, 421 U. S., at 361-362; Allen, 392 U. S., at 248. Just as we held in Agostini that our more recent cases had undermined the assumptions underlying Ball and Aguilar, I would now hold that Agostini and the eases on which it relied have undermined the assumptions underlying Meek and Wolman. To be sure, Agostini only addressed the specific presumption that public-school employees teaching on the premises of religious schools would inevitably inculcate religion. Nevertheless, I believe that our definitive rejection of that presumption also stood for — or at least strongly
Respondents contend that Agostini should be limited to its facts, and point specifically to the following statement from my separate opinion in Ball as the basis for retaining a presumption of religious inculcation for instructional materials and equipment:
“When full-time parochial school teachers receive public funds to teach secular courses to their parochial school students under parochial school supervision, I agree that the program has the perceived and actual effect of advancing the religious aims of the church-related schools. This is particularly the case where, as here, religion pervades the curriculum and the teachers are accustomed to bring religion to play in everything they teach.” 473 U. S., at 399-400 (concurring in judgment in part and dissenting in part).
I disagree, however, that the latter proposition follows from the former. First, as our holding in Allen and its reaf-firmance in Meek and Wolman demonstrate, the Court’s willingness to assume that religious school instructors will inculcate religion has not caused us to presume also that such instructors will be unable to follow secular restrictions on the use of textbooks. I would similarly reject any such presumption regarding the use of instructional materials and equipment. When a religious school receives textbooks or instructional materials and equipment lent with secular restrictions, the school’s teachers need not refrain from teaching religion altogether. Rather, the instructors need only ensure that any such religious teaching is done without the instructional aids provided by the government. We have always been willing to assume that religious school instructors can abide by such restrictions when the aid consists of textbooks, which Justice Brennan described as “surely the heart tools of.. . education.” Meek, supra, at 384 (concurring in. part and dissenting in part). The same assumption should extend to instructional materials and equipment.
For the same reason, my position in Ball is distinguishable. There, the government paid for religious school instructors
V
Respondents do not rest, however, on their divertibility argument alone. Rather, they also contend that the evidence respecting the actual administration of Chapter 2 in Jefferson Parish demonstrates that the program violated the Establishment Clause. First, respondents claim that the program’s safeguards are insufficient to uncover instances of actual diversion. Brief for Respondents 87, 42-43, 45-47. Second, they contend that the record shows that some religious schools in Jefferson Parish may have used their Chapter 2 aid to support religious education (i. e., that they diverted the aid). Id., at 36-87. Third, respondents highlight violations of Chapter 2’s secular content restrictions. Id., at 39-41. And, finally, they note isolated examples of potential violations of Chapter 2’s supplantation restriction. Id., at 43-44. Based on the evidence underlying the first and second claims, the plurality appears to contend that the Chapter 2 program can be upheld only if actual diversion of government aid to the advancement of religion
The plurality and Justice Souter direct the primary thrust of their arguments at the alleged inadequacy of the program’s safeguards. Respondents, the plurality, and Justice Souter all appear to proceed from the premise that, so long as actual diversion presents a constitutional problem, the government must have a failsafe mechanism capable of detecting any instance of diversion. We rejected that very assumption, however, in Agostini. There, we explained that because we had “abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required.” 521 U. S., at 234 (emphasis in original). Because I believe that the Court should abandon the presumption adopted in Meek and Wolman respecting the use of instructional materials and equipment by religious school teachers, I see no constitutional need for pervasive monitoring under the Chapter 2 program.
The safeguards employed by the program are constitutionally sufficient. At the federal level, the statute limits aid to “secular, neutral, and nonideological services, materials, and equipment,” 20 U. S. C. § 7372(a)(1); requires that the aid only supplement and not supplant funds from non-Federal sources, § 7371(b); and prohibits “any payment... for religious worship or instruction,” § 8897. At the state level, the Louisiana Department of Education (the relevant SEA for
At the local level, the Jefferson Parish Public School System (JPPSS) requires nonpublie schools seeking Chapter 2 aid to submit applications, complete with specific project plans, for approval. Id., at 127a; id., at 194a-203a (sample application). The JPPSS then conducts annual monitoring visits to each of the nonpublie schools receiving Chapter 2 aid. Id., at 141a-142a. On each visit, a JPPSS representative meets with a contact person from the nonpublic school and reviews with that person the school’s project plan and the manner in which the school has used the Chapter 2 materials and equipment to support its plan. Id., at 142a, 149a. The JPPSS representative also reminds the contact person of the prohibition on the use of Chapter 2 aid for religious purposes, id., at 149a, and conducts a random sample of the school’s Chapter 2 materials and equipment to ensure that they are appropriately labeled and that the school has maintained a record of their usage, id., at 142a-144a. (Although the plurality and Justice Souter claim that compliance
Respondents, the plurality, and Justice Souter all fault the above-described safeguards primarily because they depend on the good faith of participating religious school officials. For example, both the plurality and Justice Souter repeatedly cite testimony by state and parish officials acknowledging that the safeguards depend to a certain extent on the religious schools’ self-reporting and that, therefore, there is no way for the State or Jefferson Parish to say definitively that no Chapter 2 aid is diverted to religious purposes. See, e. g., ante, at 832-833, n. 15; post, at 906-907. These admissions, however, do not prove that the safeguards are inadequate. To find that actual diversion will flourish, one must presume bad faith on the part of the religious school officials who report to the JPPSS monitors regarding the use of Chapter 2 aid. I disagree with the plurality and Justice Souter on this point and believe that it is entirely
The evidence proffered by respondents, and relied on by the plurality and Justice Souter, concerning actual diversion of Chapter 2 aid in Jefferson Parish is de minimis. Respondents first cite.the following statement from a Jefferson Parish religious school teacher: “Audio-visual materials are a very necessary and enjoyable tool used when teaching young children. As a second grade teacher I use them in all subjects and see a very positive result.” App. 108a. Respondents’ only other evidence consists of a chart concerning one Jefferson Parish religious school, which shows that the school’s theology department was a significant user of audiovisual equipment. See id., at 206a-208a. Although an accompanying letter indicates that much of the school’s equipment was purchased with federal funds, id., at 205a, the chart does not provide a breakdown identifying specific Chapter 2 usage. Indeed, unless we are to relieve respondents of their evidentiary burden and presume a violation of Chapter 2, we should assume that the school used its own equipment in the theology department and the Chapter 2 equipment elsewhere. The more basic point, however, is that neither piece of evidence demonstrates that Chapter 2 aid actually was diverted to religious education. At most, it proves the possibility that, out of the more than 40 nonpublic schools in Jefferson Parish participating in Chapter 2, aid may have been diverted in one school’s second-grade class and another school’s theology department.
Justice Souter also relies on testimony by one religious school principal indicating that a computer lent to her school under Chapter 2 was connected through a network to non-Chapter 2 computers. See post, at 910 (citing App. 77a). The principal testified that the Chapter 2 computer would take over the network if another non-Chapter 2 computer were to break down. Ibid. To the extent the principal’s testimony even proves that Chapter 2 funds were diverted to the school’s religious mission, the evidence is hardly compelling.
Justice Souter contends that any evidence of actual diversion requires the Court to declare the Chapter 2 program unconstitutional as applied in Jefferson Parish. Post, at 909, n. 27. For support, he quotes my concurring opinion in Bowen and the statement therein that “any use of public funds to promote religious doctrines violates the Establishment Clause.” 487 U. S., at 623 (emphasis in original). That principle of course remains good law, but the next sentence in my opinion is more relevant to the case at hand: “[E]intensive violations — if they can be proved in this case— will be highly relevant in shaping an appropriate remedy that ends such abuses.” Ibid, (emphasis in original). I know of no case in which we have declared an entire aid program unconstitutional on Establishment Clause grounds solely because of violations on the minuscule scale of those at issue here. Yet that is precisely the remedy respondents
Respondents’ next evidentiary argument concerns an admitted violation of Chapter 2’s secular content restriction. Over three years, Jefferson Parish religious schools ordered approximately 191 religious library books through Chapter 2. App. 129a-133a. Dan Lewis, the director of Louisiana’s Chapter 2 program, testified that he discovered some of the religious books while pei’forming a random check during a state monitoring visit to a Jefferson Parish religious school. Id., at 99a-100a. The discovery prompted the State to notify the JPPSS, which then reexamined book requests dating back to 1982, discovered the 191 books in question, and recalled them. Id., at 130a~133a. This series of events demonstrates not that the Chapter 2 safeguards are inadequate, but rather that the program’s monitoring system succeeded. Even if I were instead willing to find this incident to be evidence of a likelihood of future violations, the evidence is insignificant. The 191 books constituted less than one percent of the total allocation of Chapter 2 aid in Jefferson Parish during the relevant years. Id., at 132a. Justice Souter understandably concedes that the book incident constitutes “only limited evidence.” Post, at 909. I agree with the plurality that, like the above evidence of actual diversion, the borrowing of the religious library books constitutes only de minimis evidence. See ante, at 835.
H» «i* H*
Given the important similarities between the Chapter 2 program here and the Title I program at issue in Agostini, respondents’ Establishment Clause challenge must fail. As in Agostini, the Chapter 2 aid is allocated on the basis of neutral, secular criteria; the aid must be supplementary and cannot supplant non-Federal funds; no Chapter 2 funds ever reach the coffers of religious schools; the aid must be secular; any evidence of actual diversion is de minimis; and the program includes adequate safeguards. Regardless of whether these factors are constitutional requirements, they are surely sufficient to find that the program at issue here does not have the impermissible effect of advancing religion. For the same reasons, “this carefully constrained program also cannot reasonably be viewed as an endorsement of religion.” Agostini, 521 U. S., at 235. Accordingly, I concur in the judgment.
Indeed, two of the dissenters in Allen agreed with the majority on this method of analysis, asking whether the books at issue were similar enough to fire and police protection. See 392 U. S., at 252 (Black, J., dissenting); id., at 272 (Fortas, J., dissenting).
Dissenting Opinion
with whom Justice Stevens and Justice Ginsburg join, dissenting.
The First Amendment’s Establishment Clause prohibits Congress (and, by incorporation, the States) from making any law respecting an establishment of religion. It has been
The establishment prohibition of government religious funding serves more than one end. It is meant to guarantee the right of individual conscience against compulsion, to protect the integrity of religion against the corrosion of secular support, and to preserve the unity of political society against the implied exclusion of the less favored and the antagonism of controversy over public support for religious causes.
These objectives are always in some jeopardy since the substantive principle of no aid to religion is not the only limitation on government action toward religion. Because the First Amendment also bars any prohibition of individual free exercise of religion, and because religious organizations cannot be isolated from the basic government functions that create the civil environment, it is as much necessary as it is difficult to draw lines between forbidden aid and lawful benefit. For more than 50 years, this Court has been attempting to draw these lines. Owing to the variety of factual circumstances in whieh the lines must be drawn, not all of the points creating the boundary have enjoyed self-evidence.
So far as the line drawn has addressed government aid to education, a few fundamental generalizations are nonetheless possible. There may be no aid supporting a sectarian school’s religious exercise or the discharge of its religious mission, while aid of a secular character with no discernible benefit to such a sectarian objective is allowable. Because the religious and secular spheres largely overlap in the life of many such schools, the Court has tried to identify some facts likely to reveal the relative religious or secular intent or effect of the government benefits in particular circumstances. We have asked whether the government is acting neutrally in distributing its money, and about the form of the aid itself, its path from government to religious institution,
In all the years of its effort, the Court has isolated no single test of constitutional sufficiency, and the question in every ease addresses the substantive principle of no aid: what reasons are there to characterize this benefit as aid to the sectarian school in discharging its religious mission? Particular factual circumstances control, and the answer is a matter of judgment.
In what follows I will flesh out this summary, for this case comes at a time when our judgment requires perspective on how the Establishment Clause has come to be understood and applied. It is not just that a majority today mistakes the significance of facts that have led to conclusions of unconstitutionality in earlier cases, though I believe the Court commits error in failing to recognize the divertibility of funds to the service of religious objectives. What is more important is the view revealed in the plurality opinion, which espouses a new conception of neutrality as a practically sufficient test of constitutionality that would, if adopted by the Court, eliminate enquiry into a law’s effects. The plurality position breaks fundamentally with Establishment Clause principle, and with the methodology painstakingly worked out in support of it. I mean to revisit that principle and describe the methodology at some length, lest there be any question about the rupture that the plurality view would cause. From that new view of the law, and from a majority’s mistaken application of the old, I respectfully dissent.
I
The prohibition that "Congress shall make no law respecting an establishment of religion,” U. S. Const., Arndt. 1, eludes elegant conceptualization simply because the prohibition applies to such distinct phenomena as state churches and aid to religious schools, and as applied to school aid has
A
At least three concerns have been expressed since the founding and run throughout our First Amendment jurisprudence. First, compelling an individual to support religion violates the fundamental principle of freedom of conscience. Madison’s and Jefferson’s now familiar words establish clearly that liberty of personal conviction requires freedom from coercion to support religion,
Second, government aid corrupts religion. See Engel v. Vitale, 370 U. S. 421, 431 (1962) (“[The Establishment Clause’s] first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion”); Everson, supra, at 53 (Rutledge, J., dissenting). Madison argued that establishment of religion weakened the beliefs of adherents so favored, strengthened their opponents, and generated “pride and indolence in the Clergy; ignorance and servility in the laity; [and] in both, superstition, bigotry and persecution.” Memorial and Remonstrance ¶7, quoted in Everson, 330 U. S., at 67. “[Experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Ibid. In a variant of Madison’s concern, we have repeatedly noted that a government’s favor to a particular religion or sect threatens to taint it with “corrosive secularism.” Lee v. Weisman, 505 U. S. 577, 608 (1992) (internal quotation marks and citations omitted); see also Illinois ex rel. McCollum v. Board
“[Government and religion have discrete interests which are mutually best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government.” School Dist. of Abington Township v. Schempp, 374 U. S. 203, 259 (1963) (Brennan, J., concurring).
See also Rosenberger, supra, at 890-891 (Souter, J., dissenting).
Third, government establishment of religion is inextricably linked with conflict. Everson, supra, at 8-11 (relating colonists’ understanding of recent history of religious persecution in countries with established religion); Engel, supra, at 429 (discussing struggle among religions for government approval); Lemon v. Kurtzman, 403 U. S. 602, 623 (1971). In our own history, the turmoil thus produced has led to a rejection of the idea that government should subsidize religious education, id., at 645-649 (opinion of Brennan, J.) (discussing history of rejection of support for religious schools); McCol-lum, supra, at 214-217 (opinion of Frankfurter, J.), a position that illustrates the Court’s understanding that any implicit endorsement of religion is unconstitutional, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592-594 (1989).
These concerns are reflected in the Court’s classic summation delivered in Everson v. Board of Education, swpra, its first opinion directly addressing standards governing aid to religious schools:
“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’” 330 U.S., at 15-16 (quoting Reynolds v. United States, 98 U. S. 145, 164 (1879)).
The most directly pertinent doctrinal statements here are these: no government “can pass laws which aid one religion
Immediately, however, there was the difficulty over what might amount to “aid” or “support.” The problem for the Everson Court was not merely the imprecision of the words, but the “other language of the [First Amendment that] commands that [government] eannot hamper its citizens in the free exercise of their own religion,” ibid., with the consequence that government must “be a neutral in its relations with groups of religious believers and non-believers,” id., at 18. Since withholding some public benefits from religious groups could be said to “hamper” religious exercise indirectly, and extending other benefits said to aid it, an argument-proof formulation of the no-aid principle was impossible, and the Court wisely chose not to attempt any such thing. Instead it gave definitive examples of public benefits provided pervasively throughout society that would be of some value to organized religion but not in a way or to a degree that could sensibly be described as giving it aid or violating the neutrality requirement: there was no Establishment Clause concern with “such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks.” Id., at 17-18. These “benefits of public welfare legislation,” id., at 16, extended in modern times to virtually every member of the population and valuable to every person and association, were the paradigms of advantages that religious organiza
But paradigms are not perfect fits very often, and government spending resists easy classification as between universal general service or subsidy of favoritism. The 5-to-4 division of the Everson Court turned on the inevitable question whether reimbursing all parents for the cost of transporting their children to school was close enough to police protection to tolerate its indirect benefit in some degree to religious schools, with the majority in Everson thinking the reimbursement statute fell on the lawful side of the line. Although the state scheme reimbursed parents for transporting children to sectarian schools, among others, it gave “no money to the schools. It [did] not support them. Its legislation [did] no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” Id., at 18. The dissenters countered with factual analyses showing the limitation of the law’s benefits in fact to private school pupils who were Roman Catholics, id., at 20 (Jackson, J., dissenting), and indicating the inseparability of transporting pupils to school from support for the religious instruction that was the school’s raison d’etre, id., at 45-46 (Rutledge, J., dissenting).
Everson is usefully understood in the light of a successor case two decades later, Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968), in which the challenged government practice was lending textbooks to pupils of schools both public and private, including religious ones (as to which there was no evidence that they had previously supplied books to their classes and some evidence that they had not, id., at 244, n. 6). By the time of Allen, the problem of classifying the state benefit, as between aid to religion and general public service consistent with government neutral
1. Government aid to religion is forbidden, and tax revenue may not be used to support a religious school or religious teaching.
2. Government provision of such paradigms of universally general welfare benefits as police and fire protection does not count as aid to religion.
3. Whether a law’s benefit is sufficiently close to universally general welfare paradigms to be classified with them, as distinct from religious aid, is a function of the purpose and effect of the challenged law in all its particularity. The judgment is not reducible to the application of any formula. Evenhandedness of distribution as between religious and secular beneficiaries is a relevant factor, but not a sufficiency test of constitutionality. There is no rule of religious equal protection to the effect that any expenditure for the benefit of religious school students is necessarily constitutional so long as public school pupils are favored on ostensibly identical terms.
4. Government must maintain neutrality as to religion, “neutrality” being a conclusory label for the required position of government as neither aiding religion nor impeding religious exercise by believers. “Neutrality” was not the name of any test to identify permissible action, and in particular, was not synonymous with even-handedness in conferring benefit on the secular as well as the religious.
Today, the substantive principle of no aid to religious mission remains the governing understanding of the Establishment Clause as applied to public benefits inuring to religious schools. The governing opinions on the subject in the 85 years since Allen have never challenged this principle. The
II
A
The most deceptively familiar of those considerations is “neutrality,” the presence or absence of which, in some sense, we have addressed from the moment of Everson itself. I say “some sense,” for we have used the term in at least three ways in our cases, and an understanding of the term’s evolution will help to explain the concept as it is understood today, as well as the limits of its significance in . Establishment Clause analysis. “Neutrality’ has been employed as a term to describe the requisite state of government equipoise between the forbidden encouragement and discouragement of religion; to characterize a benefit or aid as secular; and to indicate evenhandedness in distributing it.
As already mentioned, the Court first referred to neutrality in Everson, simply stating that government is required “to be a neutral” among religions and between religion and nonreligion. 330 U. S., at 18.. Although “neutral” may have carried a hint of inaction when we indicated that the First Amendment “does not require the state to be [the] adversary” of religious believers, ibid., or to cut off general government services from religious organizations, Everson provided no explicit definition of the term or further indication of what the government was required to do or not do to be
The Court began to employ “neutrality” in a sense different from equipoise, however, as it explicated the distinction between “religious” and “secular” benefits to religious schools, the latter being in some circumstances permissible. See infra, at 884-899 (discussing considerations). Even though both Everson and Allen had anticipated some such distinction, neither ease had used the term “neutral” in this way. In Everson, Justice Black indicated that providing
The shift from equipoise to secular was not, however, our last redefinition, for the Court again transformed the sense of “neutrality” in the 1980’s. Reexamining and reinterpreting Everson and Allen, we began to use the word “neutral” to mean “evenhanded,” in the sense of allocating aid on some common basis to religious and secular recipients. Again, neither Everson nor Allen explicitly used “neutral” in this manner, but just as the label for equipoise had lent itself to referring to the secular characteristic of what a government might provide, it was readily adaptable to referring to the generality of government services, as in Everson’s paradigms, to which permissible benefits were compared.
The increased attention to a notion of evenhanded distribution was evident in Nyquist, where the Court distinguished the program under consideration from the government services approved in Allen and Everson, in part because “the class of beneficiaries [in Everson and Allen] included all schoolchildren, those in public as well as those in private schools.” 413 U. S., at 782, n. 38. Nyquist then reserved the question whether “some form of public assistance . . . made available generally without regard to the sectarian-nonsectarian, or public-nonpublie nature of the institution benefitted” would be permissible. Id., at 783, n. 38 (citations omitted). Subsequent eases continued the focus on the “generality^ of the approved government services as an important characteristic. Meek, for example, characterized Everson and Allen as approving “a general program” to pay bus fares and to lend school books, respectively, 421 U. S., at 360; id., at 360, n. 8 (approving two similar “general program[s]” in New York and Pennsylvania), and Wolman upheld diagnostic services described as “ ‘general welfare services for children,’” 433 U.S., at 243 (quoting Meek, supra, at 371, n. 21).
In sum, “neutrality” originally entered this field of jurisprudence as a eonelusory term, a label for the required rela
There is, of course, good reason for considering the generality of aid and the evenhandedness of its distribution in making close calls between benefits that in purpose or effect support a school’s religious mission and those that do not. This is just what Everson did. Even when the disputed practice falls short of Everson’s paradigms, the breadth of evenhanded distribution is one pointer toward the law’s purpose, since on the face of it aid distributed generally and without a religious criterion is less likely to be meant to aid religion than a benefit going only to religious institutions or people. And, depending on the breadth of distribution, looking to evenhandedness is a way of asking whether a benefit can reasonably be seen to aid religion in fact; we do not regard the postal system as aiding religion, even though parochial schools get mail. Given the legitimacy of considering evenhandedness, then, there is no reason to avoid the term “neutrality” to refer to it. But one crucial point must be borne in mind.
In the days when "neutral” was used in Everson’s sense of equipoise, neutrality was tantamount to constitutionality; the term was eonclusory, but when it applied it meant that the government’s position was constitutional under the Establishment Clause. This is not so at all, however, under the most recent use of "neutrality” to refer to generality or evenhandedness of distribution. This kind of neutrality is relevant in judging whether a benefit scheme so characterized should be seen as aiding a sectarian school’s religious
B
The insufficiency of evenhandedness neutrality as a standalone criterion of constitutional intent or effect has been clear from the beginning of our interpretative efforts, for an obvious reason. Evenhandedness in distributing a benefit approaches the equivalence of constitutionality in this area only when the term refers to such universality of distribution that it makes no sense to think of the benefit as going to any discrete group. Conversely, when evenhandedness refers to distribution to limited groups within society, like groups of schools or schoolchildren, it does make sense to regard the benefit as aid to the recipients. See, e. g., Everson, 330 U. S.,
Hence, if we looked no further than evenhandedness, and failed to ask what activities the aid might support, or in fact did support, religious schools could be blessed with government funding as massive as expenditures made for the benefit of their public school counterparts, and religious missions would thrive on public money. This is why the consideration of less than universal neutrality has never been recognized as dispositive and has always been teamed with attention to other facts bearing on the substantive prohibition of support for a school’s religious objective.
At least three main lines of enquiry addressed particularly to school aid have emerged to complement evenhandedness neutrality. First, we have noted that two types of aid recipients heighten Establishment Clause concern: pervasively religious schools and primary and secondary religious schools. Second, we have identified two important characteristics of the method of distributing aid: directness or indirectness of distribution and distribution by genuinely independent choice. Third, we have found relevance in at least five characteristics of the aid itself: its religious content; its cash form; its divertibility or actually diversion to religious support; its supplantation of traditional items of religious school expense; and its substantiality.
1
Two types of school aid recipients have raised special concern. First, we have recognized the fact that the overriding religious mission of certain schools, those sometimes called
Second, we have expressed special concern about aid to primary and secondary religious schools. Tilton, 403 U. S., at 685-686. On the one hand, we have understood how the youth of the students in such schools makes them highly susceptible to religious indoctrination. Lemon, supra, at 616 (“This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly”). On the other, we have recognized that the religious element in the education offered in most sectarian primary and secondary schools is far more intertwined with the secular than in university teaching, where the natural and academic skepticism of most older students may separate the two, see Tilton, supra, at 686-689; Roermer, 426 U. S., at 750. Thus, government benefits accruing to these pervasively religious primary and secondary schools raise special dangers of diversion into support for the religious indoctrination of children and the involvement of government in religious training and practice.
We have also evaluated the portent of support to an organization’s religious mission that may be inherent in the method by which aid is granted, finding pertinence in at least two characteristics of distribution. First, we have asked whether aid is direct or indirect, observing distinctions between government schemes with individual beneficiaries and those whose beneficiaries in the first instance might be religious schools. Everson, supra, at 18 (bus fare supports parents and not schools); Allen, 392 U. S., 243-244, and n. 6 (textbooks go to benefit children and parents, not schools); Lemon, supra, at 621 (invalidating direct aid to schools); Levitt, supra, at 480, 482 (invalidating direct testing aid to schools); Witters, 474 U. S., at 487-488 (evaluating whether aid was a direct subsidy to schools). Direct aid obviously raises greater risks, although recent eases have discounted this risk factor, looking to other features of the distribution mechanism. Agostini, supra, at 225-226.
3
In addition to the character of the school to which the benefit accrues, and its path from government to school, a number of features of the aid itself have figured in the elassifica-
Second, we have long held government aid invalid when circumstances would allow its diversion to religious education. The risk of diversion is obviously high when aid in the form of government funds makes its way into the coffers of religious organizations, and so from the start we have understood the Constitution to bar outright money grants of aid to religion.
Divertibility is not, of course, a characteristic of cash alone, and when examining provisions for ostensibly secular supplies we have considered their susceptibility to the service of religious ends.
Divertibility was, again, the issue in an order remanding an as-applied challenge to a grant supporting counseling on teenage sexuality for findings that the aid had not been used to support religious education. Bowen, 487 U. S., at 621; see also id., at 623 (O’Connor, J., concurring). And the most recent example of attention to the significance of divertibility occurred in our explanation that public school teachers could be assigned to provide limited instruction in religious schools in Agostini, 521 U. S., at 223-227, a majority of the Court rejecting the factual assumption that public school teachers could be readily lured into providing religious instruction.
Finally, we have recognized what is obvious (however imprecise), in holding “substantial” amounts of aid to be unconstitutional whether or not a plaintiff can show that it supplants a specific item of expense a religious school would have borne.
C
This stretch of doctrinal history leaves one point clear beyond peradventure: together with James Madison we have consistently understood the Establishment Clause to impose a substantive prohibition against public aid to religion and, hence, to the religious mission of sectarian schools. Even-handedness neutrality is one, nondispositive pointer toward an intent and (to a lesser degree) probable effect on the permissible side of the line between forbidden aid and general public welfare benefit. Other pointers are facts about the religious mission and education level of benefited schools and their pupils, the pathway by which a benefit travels from public treasury to educational effect, the form and content of the aid, its adaptability to religious ends, and its effects on school budgets. The object of all enquiries into such matters is the same whatever the particular circumstances: is the benefit intended to aid in providing the religious element of the education and is it likely to do so?
The substance of the law has thus not changed since Ever-son. Emphasis on one sort of fact or another has varied depending on the perceived utility of the enquiry, but all that has been added is repeated explanation of relevant considerations, confirming that our predecessors were right in their prophecies that no simple test would emerge to allow easy application of the establishment principle.
The plurality, however, would reject that lesson. The majority misapplies it.
A
The nub of the plurality’s new position is this:
“[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients.” Ante, at 810 (citation omitted).
As a break with consistent doctrine the plurality’s new criterion is unequaled in the history of Establishment Clause interpretation. Simple on its face, it appears to take even-handedness neutrality and in practical terms promote it to a single and sufficient test for the establishment constitutionality of school aid. Even on its own terms, its errors are manifold, and attention to at least three of its mistaken assumptions will show the degree to which the plurality’s proposal would replace the principle of no aid with a formula for generous religious support.
First, the plurality treats an external observer’s attribution of religious support to the government as the sole impermissible effect of a government aid scheme. See, e. g., ante, at 809 (“[N]o one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government”). While perceived state endorsement of religion is undoubtedly a relevant concern under the Establishment Clause, see, e. g., Allegheny County, 492 U. S., at 592-594; see also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 772-774 (1995) (O’Connor, J., concurring in part and concurring in
Second, the plurality apparently assumes as a fact that equal amounts of aid to religious and nonreligious schools will have exclusively secular and equal effects, on both external perception and on incentives to attend different schools. See ante, at 809-810, 813-814. But there is no reason to believe that this will be the case; the effects of same-terms aid may not be confined to the secular sphere at all. This is the reason that we have long recognized that unrestricted aid to religious schools will support religious teaching in ad
Third, the plurality assumes that per capita distribution rules safeguard the same principles as independent, private choices. But that is clearly not so. We approved university scholarships in Witters because we found them close to giving a government employee a paycheck and allowing him to spend it as he chose, but a per capita aid program is a far cry from awarding scholarships to individuals, one of whom makes an independent private choice. Not the least of the significant differences between per capita aid and aid individually determined and directed is the right and genuine opportunity of the recipient to choose not to give the aid.
The plurality’s mistaken assumptions explain and underscore its sharp break with the Framers’ understanding of establishment and this Court’s consistent interpretative course. Under the plurality’s regime, little would be left of the right of conscience against compelled support for religion; the more massive the aid the more potent would be the influence of the government on the teaching mission; the more generous the support, the more divisive would be the resentments of those resisting religious support, and those religions without school systems ready to claim their fair share.
B
The plurality’s conception of evenhandedness does not, however, control the case, whose disposition turns on the misapplication of accepted categories of school aid analysis. The facts most obviously relevant to the Chapter 2 scheme
The aid that the government provided was highly susceptible to unconstitutional use. Much of the equipment provided under Chapter 2 was not of the type provided for individual students, App. to Pet. for Cert. 140a; App. 262a-278a, but included “slide projectors, movie projectors, overhead projectors, television sets, tape recorders, projection screens, maps, globes, filmstrips, cassettes, computers,” and computer software and peripherals, Helms v. Cody, No. 85-5533, 1990 WL 36124 (ED La., Mar. 27, 1990); App. to Pet. for Cert. 140a; App. 90a, 262a-278a, as well as library books and materials, id., at 56a, 126a, 280a-284a. The videocassette players, overhead projectors, and other instructional aids were of the sort that we have found can easily be used by religious teachers for religious purposes. Meek, 421 U. S., at 363; Wolman, 433 U. S., at 249-250. The same was true of the computers, which were as readily employable for religious teaching as the other equipment, and presumably as immune to any countervailing safeguard, App. 90a, 118a, 164a-165a. Although library books, like textbooks, have fixed content, religious teachers can assign seeular library books for religious critique, and books for libraries may be religious, as any divinity school library would demonstrate. The sheer number and variety of boohs that could be and were ordered gave ample opportunity for such diversion.
The divertibility thus inherent in the forms of Chapter 2 aid was enhanced by the structure of the program in Jefferson Parish. Requests for specific items under Chapter 2 came not from seeular officials, ef. Allen, 392 U. S., at 244-
The concern with divertibility thus predicated is underscored by the fact that the religious schools in question here covered the primary and secondary grades, the grades in which the sectarian nature of instruction is characteristically the most pervasive, see Lemon, 403 U. S., at 616; cf. Tilton, 403 U. S., at 686-689, and in which pupils are the least critical of the schools’ religious objectives, see Lemon, swpra, at 616. No one, indeed, disputes the trial judge’s findings, based on a detailed record, that the Roman Catholic schools,
The plurality has already noted at length the ineffectiveness of the government’s monitoring program. Ante, at 832-834; see also App. Illa (“A system to monitor nonpublie schools was often not in operation and therefore the [local educational agency] did not always know: (a) what was purchased or (b) how it was utilized”). Monitors visited a non-publie school only sporadically, discussed the program with a single contact person, observed nothing more than attempts at recordkeeping, and failed to inform the teachers of the restrictions involved. Id., at 154a-155a. Although Chapter 2 required labeling of government property, it occurred haphazardly at best, id., at 113a, and the government’s sole monitoring system for computer use amounted to nothing more
The risk of immediate diversion of Chapter 2 benefits had its complement in the risk of future diversion, against which the Jefferson Parish program had absolutely no protection. By statute all purchases with Chapter 2 aid were to remain the property of the United States, 20 U.S.C. §7372(e)(1), merely being “lent” to the recipient nonpublic schools. In actuality, however, the record indicates that nothing in the
Providing such governmental aid without effective safeguards against future diversion itself offends the Establishment Clause, Tilton, 403 U.S., at 682-684; Nyquist, 413 U. S., at 776-777, and even without evidence of actual diversion, our cases have repeatedly held that a “substantial risk” of it suffices to invalidate a government aid program on establishment grounds. See, e. g., Wolman, 433 U. S., at 254 (invalidating aid for transportation on teacher-accompanied field trips because an “unacceptable risk of fostering of religion” was “an inevitable byproduct”); Meek, 421 U. S., at 372 (striking down program because of a “potential for impermissible fostering of religion”); Levitt, 413 U. S., at 480 (invalidating aid for tests designed by religious teachers because of “the substantial risk that. .. examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious preeepts of the sponsoring church”); Lemon, 403 U. S., at 619 (finding invalid aid with a “potential for impermissible fostering of religion”); ef. Bowen, 487 U. S., at 621 (noting that where diversion risk is less clearly made out, a case may be remanded for findings on actual diversion of aid to religious indoctrination); Began, 444 U. S., at 656 (characterizing as “minimal” the chance that state-drafted tests with “complete” safeguards would be adopted to reli
But the record here goes beyond risk, to instances of actual diversion. What one would expect from such paltry efforts at monitoring and enforcement naturally resulted, and the record strongly suggests that other, undocumented diversions probably occurred as well. First, the record shows actual diversion in the library book, program. App. 132a-133a. Although only limited evidence exists, it contrasts starkly with the records of the numerous textbook programs that we have repeatedly upheld, where there was no evidence of any actual diversion. See Allen, 392 U. S., at 244-245; Meek, supra, at 361-362; Wolman, supra, at 237-238. Here, discovery revealed that under Chapter 2, nonpublic schools requested and the government purchased at least 191 religious books with taxpayer funds by December 1985.
The evidence persuasively suggests that other aid was actually diverted as well. The principal of one religious school testified, for example, that computers lent with Chapter 2 funds were joined in a network with other non-Chapter 2 computers in some schools, and that religious officials and teachers were allowed to develop their own unregulated software for use on this network. Id., at 77a. She admitted that the Chapter 2 computer took over the support of the computing system whenever there was a breakdown of the master computer purchased with the religious school’s own funds. Ibid. Moreover, as the plurality observes, ante, at 833-834, n. 17, comparing the records of considerable federal funding of audiovisual equipment in religious schools with records of the schools’ use of unidentified audiovisual equipment in religion classes strongly suggests that film projectors and videotape machines purchased with public funds were used in religious indoctrination over a period of at least seven years. App. 205a, 210a, 206a-207a; see also id., at 108a (statement of second-grade teacher indicating that she used audiovisual materials in all classes).
Indeed, the plurality readily recognizes that the aid in question here was divertible and that substantial evidence of actual diversion exists. Ante, at 832-834, and nn. 14-17. Although Justice O’Connor attributes limited significance to the evidence of divertibility and actual diversion, she also recognizes that it exists. Ante, at 864-865 (opinion concurring in judgment). The Court has no choice but to hold that the program as applied violated the Establishment Clause.
The plurality would break with the law. The majority misapplies it. That misapplication is, however, the only consolation in the case, which reaches an erroneous result but does not stage a doctrinal coup. But there is no mistaking the abandonment of doctrine that would occur if the plurality were to become a majority. It is beyond question that the plurality’s notion of evenhandedness neutrality as a practical guarantee of the validity of aid to sectarian schools would be the end of the principle of no aid to the schools’ religious mission. And if that were not so obvious it would become so after reflecting on the plurality’s thoughts about diversion
The plurality is candid in pointing out the extent of actual diversion of Chapter 2 aid to religious use in the case before us, ante, at 882-834, and n. 17, and equally candid in saying it does not matter, ante, at 820-825, 833-834. To the plurality there is nothing wrong with aiding a school’s religious mission; the only question is whether religious teaching obtains its tax support under a formally evenhanded criterion of distribution. The principle of no aid to religious teaching has no independent significance.
And if this were not enough to prove that no aid in religious school aid is dead under the plurality’s First Amendment, the point is nailed down in the plurality’s attack on the legitimacy of considering a school’s pervasively sectarian character when judging whether aid to the school is likely to aid its religious mission. Ante, at 826-829. The relevance of this consideration is simply a matter of common sense: where religious indoctrination pervades school activities of children and adolescents, it takes great care to be able to aid the school without supporting the doctrinal effort. This is obvious. The plurality nonetheless condemns any enquiry into the pervasiveness of doctrinal content as a remnant of anti-Catholie bigotry (as if evangelical Protestant schools and Orthodox Jewish yeshivas were never pervasively sectarian
Jefferson’s Virginia Bill for Establishing Religious Freedom provided “[t]hat no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever-” Jefferson, A Bill for Establishing Religious Freedom, in 5 The Founder’s Constitution 84 (R Kurland & R. Lerner eds. 1987); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 870-872 (1995) (Souter, J., dissenting). We have “previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.” Everson v. Board of Ed. of Ewing, 330 U. S. 1, 13 (1947).
The plurality mistakes my recognition of this fundamental concern. Ante, at 825-826. The Court may well have moved away from considering the political divisiveness threatened by particular instances of aid as a practical criterion for applying the Establishment Clause case by case, but we have never questioned its importance as a motivating concern behind the Establishment Clause, nor could we change history to find that sectarian conflict did not influence the Framers who wrote it.
The Court upheld payments by Indian tribes to apparently Koman Catholic schools in Quick Bear v. Leupp, 210 U. S. 50 (1908), suggesting in dicta that there was no Establishment Clause problem, but it did not squarely face the question. Nor did the Court address a First Amendment challenge to a state program providing textbooks to children in Cochran v. Louisiana Bd. of Ed., 281 U. S. 370 (1930); it simply concluded that the program had an adequate public purpose. The Court first squarely faced the issue in Everson.
While Everson’s dissenters parted company with the majority over the specific question of school buses, the Court stood as one behind the principle of no aid for religious teaching. 330 U. S., at 15-16; id., at 25-26 (Jackson, J., dissenting); id., at 28-29, 31-32 (Rutledge, J., dissenting).
In fact, religious education in Roman Catholic schools is defined as part of required religious practice; aiding it is thus akin to aiding a church service. See 1988 Code of Canon Law, Canon 798, reprinted in The Code of Canon Law: A Text and Commentary 566 (1985) (hereinafter Text & Commentary) (directing parents to entrust children to Roman Catholic schools or otherwise provide for Roman Catholic education); Canon 800, §2, Text & Commentary 567 (requiring the faithful to support establishment and maintenance of Roman Catholic schools); Canons 802, 804, Text & Commentary 567, 568 (requiring diocesan bishop to establish and regulate schools “imparting an education imbued with the Christian spirit”).
Although the Court no longer assumes that public school teachers assigned to religious schools for limited purposes will teach religiously, see Agostini v. Felton, 521 U. S. 203, 228-228 (1997), we have never abandoned the presumption that religious teachers will teach just that way. Lemon v. Kurtzman, 403 U. S. 602, 615-620 (1971); id., at 635-641 (Douglas, J., concurring); Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472, 480 (1973); Meek v. Pittenger, 421 U. S. 349, 369-371 (1975); Wol-
In Agostini, the Court indicated that “we have departed from the rule relied on in Ball that all government aid that directly assists the educational function of religious schools is invalid,” 521 U. S., at 225, and cited Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), and Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1998). However, Agostini did not rely on this dictum, instead clearly stating that “[w]hile it is true that individual students may not directly apply for Title I services, it does not follow from this premise that those services are distributed ‘directly to the religious schools.’ In fact, they are not. No Title I funds ever reach the coffers of religious schools, and Title I services may not be provided to religious schools on a sehoolwide basis.” 521 U. S., at 228-229 (citations omitted). Until today, this Court has never permitted aid to go directly to schools on a schoolwide basis.
The plurality misreads our precedent in suggesting that we have abandoned directness of distribution as a relevant consideration. See ante, at 815-818. In Wolman, we stated that nominally describing aid as to students would not bar a court from finding that it actually provided a subsidy to a school, 433 U. S., at 250, but we did not establish that a program giving “direct” aid to schools was therefore permissible. In Witters, we made the focus of Wolman dear, continuing to examine aid to determine
We have also permitted the government to supply students with public-employee translators, Zobrest, supra, at 10, and public-employee special education teachers, Agostini, supra, at 226,228, who directly provided .them with government services in whatever schools those specific students attended, public or nonpublic. I have already noted Agostini’s limitations. See n. 8, supra.
1 agree 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, schools. Ante, at 822-825. The plurality, however, misreads our precedent as focusing only on affirmatively religious content. At the very least, a building, for example, has no such content, but we have squarely required the government to ensure that no publidy financed building be diverted to religious use. Tilton v. Richardson, 403 U. S. 672, 681-684 (1971). See also Bowen v. Kendrick, 487 U. S. 589, 623 (1988) (O’CONNOR, J., concurring) AJny use of public funds to promote religious doctrines violates the Establishment Clause”).
We have similarly noted that paying salaries of parochial school teachers creates too much of a risk that such support will aid the teaching of religion, striking down such programs because of the need for pervasive monitoring that would be required. See Lemon, 403 U. S., at 619 (“We do not assume, however, that parochial school teachers will be unsuccessful
It is true that we called the importance of the cash payment consideration into question in Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 657-659 (1980) (approving program providing religious school with “direct cash reimbursement” for expenses of standardized testing). In that case, we found the other safeguards against the diversion of such funds to religious uses sufficient to allow such aid: “A
The plurality concedes this basic point. See ante, at 818-819. Given this, I find any suggestion that this prohibition has been undermined by Mueller or Witters without foundation. See ante, at 819-820, n. 8. Those cases involved entirely different types of aid, namely, tax deductions and individual scholarship aid for university education, see also n. 16, infra, and were followed by Rosenberger and Agostini, which continued to support this absolute restriction.
I reject the plurality’s argument that divertibility is a boundless principle. Ante, at 824-825. Our long experience of evaluating this consideration demonstrates its practical limits. See infra this page and 894-895. Moreover, the Establishment Clause charges us with making such enqui-ries, regardless of their difficulty. See supra, at 875-878, 884-885. Finally, the First Amendment’s rule permitting only aid with fixed secular content seems no more difficult to apply than the plurality’s rule prohibiting only aid with fixed religious content.
Contrary to the plurality’s apparent belief, Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993), sheds no light on the question of divertibility and school aid. Ante, at 822, n. 9. The Court in that case clearly distinguished the question of afterschool access to public facilities from anything resembling the school aid cases: “The showing of this film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to chinch members.” 508 U. S., at 395.
In Lemon, we also specifically examined the risk that a government program that paid religious teachers would support religious education; the teachers posed the risk of being unable to separate secular from religious education. Although we invalidated the program on entanglement grounds, we suggested that the monitoring the State had established in that ease was actually required to eliminate the risk of diversion. See 403 U. S., at 619; see also n. 11, supra.
The plurality is mistaken in its reading of Zobrest. See ante, at 820-821. Zobrest does not reject the principle of divertibility. There the government provided only a translator who was not considered divertible because he did not add to or subtract from the religious message. The Court approved the translator as it would approve a hearing aid, health services, diagnostics, and tests. See Zobrest, 509 U. S., at 13, and n. 10. Cf Bradfield v. Roberts, 175 U. S. 291, 299-300 (1899); Wolman, 433 U. S., at 244. Zobrest thus can be thought of as akin to our approval of diagnostic services in Wolman, supra, at 244, which we considered to have “little or no educational content[,] not [to be] closely associated with the educational mission of the nonpublie school,” and not to pose “an impermissible
Similarly, the plurality is mistaken in reading our holdings in Mueller and Witters, see ante, at 821, to undermine divertibility as a relevant principle. First, these cases approved quite factually distinct types of aid; Mueller involving tax deductions, which have a quite separate history of approval, see 468 U. S., at 396, and nn. 5, 6 (citing Walz v. Tax Comm’n of City of New York, 397 U. S. 664 (1970», and Witters involving scholarship money distributed to a university, not a primary or secondary school, see Tilton, 403 U. S., at 685-686, that was not significant enough as a whole to support that institution, Witters, 474 U. S., at 488. Second, in neither case did the program at issue provide direct aid on a schoolwide basis (as Chapter 2 does here); in both we found a distinction based on the genuinely independent, private choices which allocated such very different types of aid (tax deductions and university scholarship money that did not amount to substantial support of the university). See Mueller, supra, at 399; Witters, supra, at 488.
Our departure from this principle in Regan is not easily explained, but it is an isolated holding surrounded by otherwise unbroken adherence to the no-supplanting principle. Long after Regan we have continued to find the supplement/supplant distinction, like the bar to substantial aid, to be an important consideration. See Zobrest, supra, at 12; Agostini, 521 U. S., at 228; c£ Witters, supra, at 487-488 (discussing rule against "direct subsidy”). The weight that the plurality places on Regan is thus too much for it to bear. See ante, at 815, n. 7. Moreover, the apparent object of the Regan Court's concern was vindicating the principle that aid with fixed secular content was permissible, distinguishing it from the divertible testing aid in Levitt. Regan, 444 U. S., at 661-662 (citing Wolman, supra, at 263); c£ Levitt, 413 U. S., at 480. The plurality provides no explanation for our continued reference to the principle of no-supplanting aid in subsequent cases, such as Zobrest and Agostini, which it finds trustworthy guides elsewhere in its discussion of the First Amendment. See ante, at 822-823, 825, 827, 829-832. Nor does the plurality explain why it places so much weight on Regan’s apparent departure from the no-supplanting rule while it ignores Regan’s core reasoning that the testing aid there was permissible because, in direct contrast to Levitt, the aid was not divertible.
1 do not read the plurality to question the prohibition on substantial aid. The plurality challenges any rule based on the proportion of aid that a program provides to religious recipients, citing Witters and Agostini. See ante, at 812, n. 6. I reject the plurality’s reasoning. The plurality misreads Witters; Justice Marshall, writing for the Court in Witters, emphasized that only a small amount of aid was provided to religious institutions, 474 U. S., at 488, and no controlling majority rejected the importance of this fact. The plurality also overreads Agostini, supra, at 229, which simply declined to adopt a rule based on proportionality. Moreover, regardless of whether the proportion of aid actually provided to religious schools is relevant, we have never questioned our holding in Meek that substantial aid to religious schools is prohibited.
Adopting the plurality’s rule would permit practically any government aid to religion so long as it could be supplied on terms ostensibly comparable to the terms under which aid was provided to nonreligious recipients. As a principle of constitutional sufficiency, the manipulability of this rule is breathtaking. A legislature would merely need to state a secular objective in order to legalize massive aid to all religions, one religion, or even one sect, to which its largess could be directed through the easy exercise of crafting facially neutral terms under which to offer aid favoring that religious group. Short of formally replacing the Establishment Clause, a more dependable key to the public fisc or a cleaner break with prior law would be difficult to imagine.
Indeed, the opportunity for an individual to choose not to have her religious school receive government aid is just what at least one of the respondents seeks here. See Brief for Respondents 1, and n. 1.
Litigation, discovery, and the opinions below focused almost exclusively on the aid to the 34 Roman Catholic schools. Consequently, I will confine my discussion to that information. Of course, the same concerns would be raised by government aid to religious schools of other faiths that a court found had similar missions of religious education and religious teachers teaching religiously.
The Jefferson Parish Chapter 2 program included 46 nonpublic schools, of which 41 were religiously affiliated. Thirty-four of these were Roman Catholic, seven others were religiously affiliated, and five were not religiously affiliated. App. to Pet. for Cert. 143a-144a.
The trial judge found that the Roman Catholic schools in question operate under the general supervision and authority of the Archbishop of New Orleans and their parish pastors, and are located next to parish churches and sometimes a rectory or convent. Id., at 144a. The schools include religious symbols in their classrooms, App. 75a, require attendance at daily religion classes, id., at 76a, conduct sacramental preparation
The District Court found that the mission of the Roman Catholic schools is religious education based on the Archdiocese’s and the individual schools’ published statements of philosophy. For example, the St. Anthony School Handbook, cited by the District Court, reads:
“Catholic education is intended to make men’s faith become living, conscious and active through the light of instruction. The Catholic school is the unique setting within which this ideal can be realized in the lives of the Catholic children and young people.
“Only in such a school can they experience learning and living fully integrated in the light of faith.... Here, too, instruction in religious truth and values is an integral part of the school program. It is not one more subject along side the rest, but instead it is perceived and ftmctions as the underlying reality in which the student’s experiences of learning and living achieve their coherence and their deepest meaning.” Ibid.
The Handbook of Policies and Regulations for Elementary Schools of the Archdiocese of New Orleans indicates that the operation of the Roman Catholic schools is governed by canon law. It also lists the major objectives of those schools as follows:
“To work closely with the home in educating children towards the fullness of Christian life.
“To specifically teach Catholic principles and Christian values.” Id., at 146a.
The mission statements and objectives outlined by the other Roman Catholic schools also support the conclusion that these institutions’ primary objective is religious instruction. See also App. 65a, 71a.
The Archdiocese’s official policy calls for religious preferences in hiring and the contracts of principals and teachers in its schools contain a provision allowing for termination for lifestyle contrary to the teachings of the Roman Catholic church. App. to Pet. for Cert. 145a. One of the objectives of the handbook is “[t]o encourage teachers to become committed Christians and to develop professional competence.” Id., at 146a. Other record evidence supports the conclusion that these religious schoolteachers teach religiously. See, e. g., App. 125a (deposition of president of sectarian high school) (“Our teachers, whether they are religion teachers
The Government's reliance on U.S. Department of Education Guidance for Title VI of the Elementary and Secondary Education Act (Feb. 1999) is misplaced. See App. to Brief for Secretary of Education la. It was not in place when discovery dosed in this matter, and merely highlights the reasons for a lack of evidence on diversion or compliance.
The plurality applies inconsistent standards to the evidence. Although the plurality finds more limited evidence of actual diversion sufficient to support a general finding of diversion in the computer and instructional materials context, even in the face of Justice O’Connor’s objections, it fails to find a violation of the prohibition against providing aid with religious content based on the more stark, undisputed evidence of religious books. Compare ante, at 832-834,'and nn. 14-17, with ante, at 834-835. As a matter of precedent, the correct evidentiary standard is clearly the former: “[A]ny use of public funds to promote religious doctrines violates the Establishment Clause.” Bowen, 487 U. S., at 623 (O’Connor, J., concurring). We have never before found any actual diversion or allowed a risk of it; we have struck down policies that might permit it, e. g., Tilton, 403 U. S., at 682-684, or have remanded for specific factual findings about whether diversion occurred, Bowen, rnpra, at 621. See supra, at 890-895. As a matter of principle, this low threshold is required to safeguard the values of the First Amendment. Madison’s words make cleai* that even a small infringement of the prohibition on compelled aid to religion is odious to the freedom of conscience. No less does it open the door to the threat of corruption or to a return to religious conflict.
Since the divertibility and diversion require a finding of unconstitutionality, I will not explore other grounds, beyond noting the likelihood that unconstitutional supplantation occurred as well. The record demonstrates that Chapter 2 aid impermissibly relieved religious schools of some costs that they otherwise would have borne, and so unconstitutionally sup
Indeed, one group of amici curiae, which consists of “religious and educational leaders from a broad range of both Eastern and Western religious traditions, and Methodist, Jewish and Seventh-day Adventist individuals” including “church administrators, administrators of religious elementary and secondary school systems; elementary and secondary school teachers at religious schools; and pastors and laity who serve on church school boards,” identifies its members as having “broad experience teaching in and administering pervasively sectarian schools.” Brief for Interfaith Keligious Liberty Foundation et al. as Amici Curiae 1.
One of the respondents describes herself as a “life-long, committed member of the Roman Catholic Church” who “objects to the government providing benefits to her parish school” because “[s]he has seen the chilling effect such entangling government aid has on the religious mission of schools run by her church.” Brief for Respondents 1. She has been a member of the church for about 36 years, and six of her children attended different Jefferson Parish Catholic run schools. Id., at 1, n. 1.
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.
1 do 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 and Widmar v. Vincent, 454 U. S. 263 (1981), as “decisions that have prohibited governments from discriminating in the distribution of public benefits based on religious status or sincerity,” ante, at 828, when they were decided on completely different and narrowly limited free-speech grounds. Nor would it be worthwhile here to engage in extended discussion of why the goal of preventing courts from having to “trol[l] through a person’s or institution’s religious beliefs,” ibid., calls for less aid and commingling of government with religion, not for tolerance of their effects.
Reference
- Full Case Name
- MITCHELL Et Al. v. HELMS Et Al.
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- 246 cases
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- Published