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| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 98-1648 |
| [3] | 2000.SCT.0042148 <http://www.versuslaw.com> |
| [4] | June 28, 2000 |
| [5] | GUY MITCHELL, ET AL., PETITIONERS V. MARY L. HELMS ET AL. |
| [6] | SYLLABUS BY THE COURT |
| [7] | OCTOBER TERM, 1999 |
| [8] | MITCHELL v. HELMS |
| [9] | NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. |
| [10] | SUPREME COURT OF THE UNITED STATES |
| [11] | MITCHELL et al. v. HELMS et al. |
| [12] | Certiorari To The United States Court Of Appeals For The Fifth Circuit |
| [13] | No. 98-1648. |
| [14] | Argued December 1, 1999 |
| [15] | Decided June 28, 2000 |
| [16] | Chapter 2 of the Education Consolidation and Improvement Act of 1981 channels federal funds via state educational agencies (SEA's) to local educational agencies (LEA's), which in turn lend educational materials and equipment, such as library and media materials and computer software and hardware, to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs. The enrollment of each participating school determines the amount of Chapter 2 aid that it receives. In an average year, about 30% of Chapter 2 funds spent in Jefferson Parish, Louisiana, are allocated for private schools, most of which are Catholic or otherwise religiously affiliated. Respondents filed suit alleging, among other things, that Chapter 2, as applied in the parish, violated the First Amendment's Establishment Clause. Agreeing, the Chief Judge of the District Court held, under Lemon v. Kurtzman, 403 U. S. 602, 612-613, that Chapter 2 had the primary effect of advancing religion because the materials and equipment loaned to the Catholic schools were direct aid and the schools were pervasively sectarian. He relied primarily on Meek v. Pittenger, 421 U. S. 349, and Wolman v. Walter, 433 U. S. 229, in which programs providing many of the same sorts of materials and equipment as does Chapter 2 were struck down, even though programs providing for the loan of public school textbooks to religious schools were upheld. After the judge issued an order permanently excluding pervasively sectarian schools in the parish from receiving any Chapter 2 materials or equipment, he retired. Another judge then reversed that order, upholding Chapter 2 under, inter alia, Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, in which a public school district was allowed to provide a sign-language interpreter to a deaf student at a Catholic high school as part of a federal program for the disabled. While respondents' appeal was pending, this Court decided Agostini v. Felton, 521 U. S. 203, approving a program under Title I of the Elementary and Secondary Education Act of 1965 that provided public employees to teach remedial classes at religious and other private schools. Concluding that Agostini had neither directly overruled Meek and Wolman nor rejected their distinction between textbooks and other in-kind aid, the Fifth Circuit relied on those two cases to invalidate Chapter 2. |
| [17] | Held: The judgment is reversed. |
| [18] | 151 F. 3d 347, reversed. |
| [19] | Justice Thomas, joined by The Chief Justice, Justice Scalia, and Justice Kennedy, concluded that Chapter 2, as applied in Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated. Pp. 7-38. |
| [20] | (a) In modifying the Lemon test -- which asked whether a statute (1) has a secular purpose, (2) has a primary effect of advancing or inhibiting religion, or (3) creates an excessive entanglement between government and religion, see 403 U. S., at 612-613 -- Agostini examined only the first and second of those factors, see 521 U. S., at 222-223, recasting the entanglement inquiry as simply one criterion relevant to determining a statute's effect, id., at 232-233. The Court also acknowledged that its cases had pared somewhat the factors that could justify a finding of excessive entanglement. Id., at 233-234. It then set out three primary criteria for determining a statute's effect: Government aid has the effect of advancing religion if it (1) results in governmental indoctrination, (2) defines its recipients by reference to religion, or (3) creates an excessive entanglement. Id., at 233-234. In this case, the inquiry under Agostini's purpose and effect test is a narrow one. Because the District Court's holding that Chapter 2 has a secular purpose is not challenged, only Chapter 2's effect need be considered. Further, in determining that effect, only the first two Agostini criteria need be considered, because the District Court's holding that Chapter 2 does not create an excessive entanglement is not challenged. Pp. 7-9. |
| [21] | (b) Whether governmental aid to religious schools results in religious indoctrination ultimately depends on whether any indoctrination that occurs could reasonably be attributed to governmental action. See, e.g., Agostini, 521 U. S., at 226. Moreover, the answer to the indoctrination question will resolve the question whether an educational aid program "subsidizes" religion. See id., at 230-231. In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, the Court has consistently turned to the neutrality principle, upholding aid that is offered to a broad range of groups or persons without regard to their religion. As a way of assuring neutrality, the Court has repeatedly considered whether any governmental aid to a religious institution results from the genuinely independent and private choices of individual parents, e.g., id., at 226. Agostini's second primary criterion -- whether an aid program defines its recipients by reference to religion, 521 U. S., at 234 -- is closely related to the first. It looks to the same facts as the neutrality inquiry, see id., at 225-226, but uses those facts to answer a somewhat different question -- whether the criteria for allocating the aid create a financial incentive to undertake religious indoctrination, id., at 231. Such an incentive is not present where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Ibid. Pp. 9-15. |
| [22] | (c) Two rules offered by respondents to govern the determination whether Chapter 2 has the effect of advancing religion are rejected. Pp. 15-27. |
| [23] | (i) Respondents' chief argument -- that direct, nonincidental aid to religious schools is always impermissible -- is inconsistent with this Court's more recent cases. The purpose of the direct/indirect distinction is to present "subsidization" of religion, and the Court's more recent cases address this concern through the principle of private choice, as incorporated in the first Agostini criterion (i.e., whether any indoctrination could be attributed to the government). If aid to schools, even "direct aid," is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any "support of religion." Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 489. Although the presence of private choice is easier to see when aid literally passes through individuals' hands, there is no reason why the Establishment Clause requires such a form. Indeed, Agostini expressly rejected respondents' absolute line. 521 U. S., at 225. To the extent respondents intend their direct/indirect distinction to require that any aid be literally placed in schoolchildren's hands rather than given directly to their schools, Meek and Wolman, the cases on which they rely, demonstrate the irrelevance of such formalism. Further, respondents' formalistic line breaks down in the application to real-world programs. Whether a program is labeled "direct" or "indirect" is a rather arbitrary choice that does not further the constitutional analysis. See Allen, supra, at 243-245. Although "special Establishment Clause dangers" may exist when money is given directly to religious schools, see, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 842, such direct payments are not at issue here. Pp. 17-21. |
| [24] | (ii) Respondents' second argument -- that provision to religious schools of aid that is divertible to religious use is always impermissible -- is also inconsistent with the Court's more recent cases, particularly Zobrest, supra, at 18-23, and Witters and is also unworkable. Meek and Wolman, on which respondents appear to rely for their divertibility rule, offer little, if any, support for their rule. The issue is not divertibility but whether the aid itself has an impermissible content. Where the aid would be suitable for use in a public school, it is also suitable for use in any private school. Similarly, the prohibition against the government providing impermissible content resolves the Establishment Clause concerns that exist if aid is actually diverted to religious uses. See, e.g., Agostini, supra, at 224-226. A concern for divertibility, as opposed to improper content, is also misplaced because it is 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. Finally, any aid, with or without content, is "divertible" in the sense that it allows schools to "divert" resources. Yet the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends. E.g., Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 658. Pp. 21-27. |
| [25] | (d) Additional factors cited by the dissent -- including the concern for political divisiveness that post-Aguilar cases have disregarded, see, e.g., Agostini, supra, at 233-234, are rejected. In particular, whether a recipient school is pervasively sectarian, a factor that has been disregarded in recent cases, e.g., Witters, supra, is not relevant to the constitutionality of a school-aid program. Pp. 27-31. |
| [26] | (e) Applying the two relevant Agostini criteria reveals that there is no basis for concluding that Jefferson Parish's Chapter 2 program has the effect of advancing religion. First, Chapter 2 does not define its recipients by reference to religion, since aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. 521 U. S., at 231. There is no improper incentive because, under the statute, aid is allocated based on school enrollment. Second, Chapter 2 does not result in governmental indoctrination of religion. It determines eligibility for aid neutrally, making a broad array of schools eligible without regard to their religious affiliations or lack thereof. See id., at 225-226. It also allocates aid based on the private choices of students and their parents as to which schools to attend. See id., at 222. Thus, it is not problematic that Chapter 2 could fairly be described as providing "direct" aid. Finally, the Chapter 2 aid provided to religious schools does not have an impermissible content. The statute explicitly requires that such aid be "secular, neutral, and nonideological," and the record indicates that the Louisiana SEA and the Jefferson Parish LEA have faithfully enforced this requirement insofar as relevant to this case. Although there is evidence that equipment has been, or at least easily could be, diverted for use in relgious classes, that evidence is not relevant to the constitutional analysis. Scattered de minimis statutory violations of the restrictions on content, discovered and remedied by the relevant authorities themselves before this litigation began almost 15 years ago, should not be elevated to such a level as to convert an otherwise unobjectionable parishwide program into a law that has the effect of advancing religion. Pp. 31-37. |
| [27] | (f) To the extent that Meek and Wolman conflict with the foregoing analysis, they are overruled. Pp. 37-38. |
| [28] | Justice O'Connor, joined by Justice Breyer, concluded that Agostini v. Felton, 521 U. S. 203, controls the constitutional inquiry presented here, and requires reversal of the Fifth Circuit's judgment that the Chapter 2 program is unconstitutional as applied in Jefferson Parish. To the extent Meek v. Pittenger, 421 U. S. 349, and Wolman v. Walter, 433 U. S. 229, are inconsistent with the Court's judgment today, they should be overruled. Pp. 1-33. |
| [29] | (a) The plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs. That rule is particularly troubling because, first, its treatment of neutrality comes close to assigning that factor singular importance in the future adjudication of Establishment Clause challenges to school-aid programs. Although neutrality is important, see, e.g., Agostini, 521 U. S., at 228, 231-232, the Court has never held that a government-aid program passes constitutional muster solely because of the neutral criteria it employs as a basis for distributing aid. Rather, neutrality has heretofore been only one of several factors the Court considers. See, e.g., id., at 226-228. Second, the plurality's approval of actual diversion of government aid to religious indoctrination is in tension with this Court's precedents. See, e.g., id., at 226-227. Actual diversion is constitutionally impermissible. E.g., Bowen v. Kendrick, 487 U. S. 589, 621-622, 624. The Court should not treat a per-capita-aid program like Chapter 2 the same as the true private choice programs approved in Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, and Zobrest v. Catalina Foothills School Dist., 509 U. S. 1. Because Agostini represents the Court's most recent attempt to devise a general framework for approaching questions concerning neutral school-aid programs, and involved an Establishment Clause challenge to a school-aid program closely related to the instant program, the Agostini criteria should control here. Pp. 2-9. |
| [30] | (b) Under Agostini, the Court asks whether the government acted with the purpose of advancing or inhibiting religion and whether the aid has the "effect" of doing so. 521 U. S., at 222-223. The specific criteria used to determine an impermissible effect have changed in recent cases, see id., at 223, which disclose three primary criteria to guide the determination: (1) whether the aid results in governmental indoctrination, (2) whether the program defines its recipients by reference to religion, and (3) whether the aid creates an excessive entanglement between government and religion, id., at 234. Finally, the same criteria can be reviewed to determine whether a program constitutes endorsement of religion. Id., at 235. Respondents neither question the Chapter 2 program's secular purpose nor contend that it creates an excessive entanglement. Accordingly, the Court need ask only whether Chapter 2, as applied in Jefferson Parish, results in governmental indoctrination or defines its recipients by reference to religion. It is clear that Chapter 2 does not so define aid recipients. Rather, it uses wholly neutral and secular criteria to allocate aid to students enrolled in religious and secular schools alike. As to the indoctrination inquiry, the Chapter 2 program bears the same hallmarks of the program upheld in Agostini: Aid is allocated on the basis of neutral, secular criteria; it is supplementary to, and does not supplant, non-federal funds; no Chapter 2 funds reach the coffers of religious schools; the aid is secular; evidence of actual diversion is de minimis; and the program includes adequate safeguards. Regardless of whether these factors are constitutional requirements, they are sufficient to find that the program at issue does not have the impermissible effect of advancing religion. For the same reasons, the Chapter 2 program cannot reasonably be viewed as an endorsement of religion. Pp. 9-14. |
| [31] | (c) Respondents' contentions that Agostini is distinguishable and that Meek and Wolman are controlling here, must be rejected. Meek and Wolman created an inexplicable rift within the Court's Establishment Clause jurisprudence. Those decisions adhered to the prior holding in Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, that statutes authorizing the lending of textbooks to religious school students did not violate the Establishment Clause, see, e.g., Meek, 421 U. S., at 359-362 (plurality opinion), but invalidated the lending of instructional materials and equipment to religious schools, e.g., id., at 362-366, on the ground that any assistance in support of the pervasively sectarian schools' educational missions would inevitably have the impermissible effect of advancing religion, see, e.g., id., at 365-366. The irrationality of this distinction is patent. See Wallace v. Jaffree, 472 U. S. 38, 110. Respondents' assertion that materials and equipment, unlike textbooks, are reasonably divertible to religious uses is rejected because it does not provide a logical distinction: An educator can use virtually any instructional tool, even a textbook, to teach a religious message. Pp. 14-22. |
| [32] | (d) The Court should follow the rule applied in the context of textbook lending programs: To establish a First Amendment violation, plaintiffs must prove that the aid actually is, or has been, used for religious purposes. See, e.g., Allen, supra, at 248. Agostini and the cases on which it relied have undermined the assumptions underlying Meek and Wolman. Agostini's definitive rejection of the presumption that public-school employees teaching in religious schools would inevitably inculcate religion also stood for -- or at least strongly pointed to -- the broader proposition that such presumptions of religious indoctrination are normally inappropriate when evaluating neutral school-aid programs under the Establishment Clause. Respondents' contentions that Agostini should be limited to its facts, and that a presumption of religious inculcation for instructional materials and equipment should be retained, must be rejected. The assumption that religious-school instructors can abide by restrictions on the use of government-provided textbooks, see Meek, supra, at 384, should extend to instructional materials and equipment. School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 399-400 (O'Connor, J., concurring in judgment in part and dissenting in part), distinguished. Pp. 22-25. |
| [33] | (e) Respondents' contention that the actual administration of Chapter 2 in Jefferson Parish violated the Establishment Clause is rejected. The limited evidence amassed by respondents during 4 years of discovery (which began approximately 15 years ago) is at best de minimis and therefore insufficient to affect the constitutional inquiry. Their assertion that the government must have a failsafe mechanism capable of detecting any instance of diversion was rejected in Agostini, supra, at 234. Because the presumption adopted in Meek and Wolman respecting the use of instructional materials and equipment by religious-school teachers should be abandoned, there is no constitutional need for pervasive monitoring under the Chapter 2 program. Moreover, a review of the specific safeguards employed under Chapter 2 at the federal, state, and local levels demonstrates that they are constitutionally sufficient. Respondents' evidence does not demonstrate any actual diversion, but, at most, proves the possibility of diversion in two isolated instances. The evidence of violations of Chapter 2's supplantation and secular-content restrictions is equally insignificant and, therefore, should be treated the same. This Court has never declared an entire aid program unconstitutional on Establishment Clause grounds solely because of violations on the miniscule scale of those at issue here. The presence of so few examples tends to show not that the "no-diversion" rules have failed, but that they have worked. Pp. 26-33. |
| [34] | Thomas, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. |
| [35] | Court Below: 151 F. 3d 347 |
| [36] | On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit |
| [37] | Justice Thomas announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Kennedy join. |
| [38] | 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. |
| [39] | I. |
| [40] | A |
| [41] | Chapter 2 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97-35, 95 Stat. 469, as amended, 20 U. S. C. §§7301-7373,*fn1 has its origins in the Elementary and Secondary Education Act of 1965 (ESEA), Pub. L. 89-10, 79 Stat. 27, 55, and is a close cousin of the provision of the ESEA that we recently considered in Agostini v. Felton, 521 U. S. 203 (1997). Like the provision at issue in Agostini, Chapter 2 channels federal funds to local educational agencies (LEA's), which are usually public school districts, via state educational agencies (SEA's), to implement programs to assist children in elementary and secondary schools. Among other things, Chapter 2 provides aid |
| [42] | "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). |
| [43] | 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. |
| [44] | Several restrictions apply to aid to private schools. Most significantly, the "services, materials, and equipment" provided to private schools must be "secular, neutral, and nonideological." §7372(a)(1). In addition, private schools may not acquire control of Chapter 2 funds or title to Chapter 2 materials, equipment, or property. §7372(c)(1). A private school receives the materials and equipment listed in §7351(b)(2) by submitting to the LEA an application detailing which items the school seeks and how it will use them; the LEA, if it approves the application, purchases those items from the school's allocation of funds, and then lends them to that school. |
| [45] | 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.*fn2 |
| [46] | 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. |
| [47] | B. |
| [48] | Respondents filed suit in December 1985, alleging, among other things, that Chapter 2, as applied in Jefferson Parish, violated the Establishment Clause of the First Amendment of the Federal Constitution. The case's tortuous history over the next 15 years indicates well the degree to which our Establishment Clause jurisprudence has shifted in recent times, while nevertheless retaining anomalies with which the lower courts have had to struggle. |
| [49] | In 1990, after extended discovery, Chief Judge Heebe of the District Court for the Eastern District of Louisiana granted summary judgment in favor of respondents. Helms v. Cody, Civ. A. No. 85-5533, 1990 WL 36124 (Mar. 27), App. to Pet. for Cert. 137a. He held that Chapter 2 violated the Establishment Clause because, under the second part of our three-part test in Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971), the program had the primary effect of advancing religion. Chapter 2 had such effect, in his view, because the materials and equipment loaned to the Catholic schools were direct aid to those schools and because the Catholic schools were, he concluded after detailed inquiry into their doctrine and curriculum, "pervasively sectarian." App. to Pet. for Cert. 151a. Chief Judge Heebe relied primarily on Meek v. Pittenger, 421 U. S. 349 (1975), and Wolman v. Walter, 433 U. S. 229 (1977), in which we held unconstitutional programs that provided many of the same sorts of materials and equipment as does Chapter 2. In 1994, after having resolved the numerous other issues in the case, he issued an order permanently excluding pervasively sectarian schools in Jefferson Parish from receiving any Chapter 2 materials or equipment. |
| [50] | Two years later, Chief Judge Heebe having retired, Judge Livaudais received the case. Ruling in early 1997 on postjudgment motions, he reversed the decision of former Chief Judge Heebe and upheld Chapter 2, pointing to several significant changes in the legal landscape over the previous seven years. Helms v. Cody, 1997 WL 35283 (Jan. 28), App. to Pet. for Cert. 79a. In particular, Judge Livaudais cited our 1993 decision in Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, in which we held that a State could, as part of a federal program for the disabled, provide a sign-language interpreter to a deaf student at a Catholic high school. |
| [51] | 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,*fn3 that "state benefits provided to all citizens without regard to religion are constitutional." 46 F. 3d, at 1465. The Ninth Circuit also relied, id., at 1467, on our observation in Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 (1994), that "we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges," id., at 704. The Ninth Circuit purported to distinguish Meek and Wolman based on the percentage of schools receiving aid that were parochial (a large percentage in those cases and a moderate percentage in Walker), 46 F. 3d, at 1468, but that court undermined this distinction when it observed that Meek also upheld "the massive provision of textbooks to parochial schools." 46 F. 3d, at 1468, n. 16. Thus, although the Ninth Circuit did not explicitly hold that Meek and Wolman were no longer good law, its reasoning seemed to require that conclusion. |
| [52] | Finally, in addition to relying on our decision in Zobrest and the Ninth Circuit's decision in Walker, Judge Livaudais invoked Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), in which, a few months after Walker, we held that the Establishment Clause does not require a public university to exclude a student-run religious publication from assistance available to numerous other student-run publications. |
| [53] | Following Judge Livaudais's ruling, respondents appealed to the Court of Appeals for the Fifth Circuit. While that appeal was pending, we decided Agostini, in which we approved a program that, under Title I of the ESEA, provided public employees to teach remedial classes at private schools, including religious schools. In so holding, we overruled Aguilar v. Felton, 473 U. S. 402 (1985), and partially overruled School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), both of which had involved such a program. |
| [54] | The Fifth Circuit thus faced a dilemma between, on the one hand, the Ninth Circuit's holding and analysis in Walker and our subsequent decisions in Rosenberger and Agostini, and, on the other hand, our holdings in Meek and Wolman. To resolve the dilemma, the Fifth Circuit abandoned any effort to find coherence in our case law or to divine the future course of our decisions and instead focused on our particular holdings. Helms v. Picard, 151 F. 3d 347, 371 (1998). It thought such an approach required not only by the lack of coherence but also by Agostini's admonition to lower courts to abide by any applicable holding of this Court even though that holding might seem inconsistent with our subsequent decisions, see Agostini, 521 U. S., at 237. The Fifth Circuit acknowledged that Agostini, by recognizing our rejection of the rule that "all government aid that directly assists the educational function of religious schools is invalid," id., at 225, had rejected a premise of Meek, but that court nevertheless concluded that Agostini had neither directly overruled Meek and Wolman nor rejected their distinction between textbooks and other in-kind aid. The Fifth Circuit therefore concluded that Meek and Wolman controlled, and thus it held Chapter 2 unconstitutional. We granted certiorari. 527 U. S. 1002 (1999). |
| [55] | II. |
| [56] | 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, we have consistently struggled to apply these simple words in the context of governmental aid to religious schools.*fn4 As we admitted in Tilton v. Richardson, 403 U. S. 672 (1971), "candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area." Id., at 678 (plurality opinion); see id., at 671 (White, J., concurring in judgment). |
| [57] | In Agostini, however, we brought some clarity to our case law, by overruling two anomalous precedents (one in whole, the other in part) and by consolidating some of our previously disparate considerations under a revised test. Whereas in Lemon we had considered whether a statute (1) has a secular purpose, (2) has a primary effect of advancing or inhibiting religion, or (3) creates an excessive entanglement between government and religion, see 403 U. S., at 612-613, in Agostini we modified Lemon for purposes of evaluating aid to schools and examined only the first and second factors, see 521 U. S., at 222-223. We acknowledged that our cases discussing excessive entanglement had applied many of the same considerations as had our cases discussing primary effect, and we therefore recast Lemon's entanglement inquiry as simply one criterion relevant to determining a statute's effect. Agostini, supra, at 232-233. We also acknowledged that our cases had pared somewhat the factors that could justify a finding of excessive entanglement. 521 U. S., at 233-234. We then set out revised criteria for determining the effect of a statute: |
| [58] | "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. |
| [59] | In this case, our inquiry under Agostini's purpose and effect test is a narrow one. Because respondents do not challenge the District Court's holding that Chapter 2 has a secular purpose, and because the Fifth Circuit also did not question that holding, cf. 151 F. 3d, at 369, n. 17, we will consider only Chapter 2's effect. Further, in determining that effect, we will consider only the first two Agostini criteria, since neither respondents nor the Fifth Circuit has questioned the District Court's holding, App. to Pet. for Cert. 108a, that Chapter 2 does not create an excessive entanglement. Considering Chapter 2 in light of our more recent case law, we conclude that it neither results in religious indoctrination by the government nor defines its recipients by reference to religion. We therefore hold that Chapter 2 is not a "law respecting an establishment of religion." In so holding, we acknowledge what both the Ninth and Fifth Circuits saw was inescapable -- Meek and Wolman are anomalies in our case law. We therefore conclude that they are no longer good law. |
| [60] | A. |
| [61] | 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 (quoting Zobrest, 509 U. S., at 10 (presence of sign-language interpreter in Catholic school " `cannot be attributed to state decisionmaking' ") (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&nbhyph;day Saints v. Amos, 483 U. S. 327, 337 (1987) ("For a law to have forbidden `effects' under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence"). We have also indicated that the answer to the question of indoctrination will resolve the question whether a program of educational aid "subsidizes" religion, as our religion cases use that term. See Agostini, 521 U. S., at 230-231; see also id., at 230. |
| [62] | 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 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, see Allen, 392 U. S., at 245-247 (discussing dual secular and religious purposes of religious schools), then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients. |
| [63] | As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so "only as a result of the genuinely independent and private choices of individuals." Agostini, supra, at 226 (internal quotation marks omitted). We have viewed as significant whether the "private choices of individual parents," as opposed to the "unmediated" will of government, Ball, 473 U. S., at 395, n. 13 (internal quotation marks omitted), determine what schools ultimately benefit from the governmental aid, and how much. For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment. Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any governmental aid program, see, e.g., Gilder, The Revitalization of Everything: The Law of the Microcosm, Harv. Bus. Rev. 49 (Mar./Apr. 1988), and that could lead to a program inadvertently favoring one religion or favoring religious private schools in general over non-religious ones. |
| [64] | The principles of neutrality and private choice, and their relationship to each other, were prominent not only in Agostini, supra, at 225-226, 228, 230-232, but also in Zobrest, Witters, and Mueller.*fn5 The heart of our reasoning in Zobrest, upholding governmental provision of a sign-language interpreter to a deaf student at his Catholic high school, was as follows: |
| [65] | "The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as `disabled' under the [statute], without regard to the `sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a 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. |
| [66] | 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. |
| [67] | 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: |
| [68] | "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 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. |
| [69] | "[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).*fn6 |
| [70] | 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 490-491 (Powell, J., joined by Burger, C. J., and Rehnquist, J., concurring); id., at 493 (O'Connor, J., concurring in part and concurring in judgment); see also id., at 490 (White, J., concurring). |
| [71] | 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). |
| [72] | Agostini's second primary criterion for determining the effect of governmental aid is closely related to the first. The second criterion requires a court to consider whether an aid program "define[s] its recipients by reference to religion." 521 U. S., at 234. As we briefly explained in Agostini, id., at 230-231, this second criterion looks to the same set of facts as does our focus, under the first criterion, on neutrality, see id., at 225-226, but the second criterion uses those facts to answer a somewhat different question -- whether the criteria for allocating the aid "creat[e] a financial incentive to undertake religious indoctrination." Id., at 231. In Agostini we set out the following rule for answering this question: |
| [73] | "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. |
| [74] | The cases on which Agostini relied for this rule, and Agostini itself, make clear the close relationship between this rule, incentives, and private choice. For to say that a program does not create an incentive to choose religious schools is to say that the private choice is truly "independent," Witters, 474 U. S., at 487. See Agostini, supra, at 232 (holding that Title I did not create any impermissible incentive, because its services were "available to all children who meet the Act's eligibility requirements, no matter what their religious beliefs or where they go to school"); Zobrest, 509 U. S., at 10 (discussing, in successive sentences, neutrality, private choice, and financial incentives, respectively); Witters, supra, at 488 (similar). When such an incentive does exist, there is a greater risk that one could attribute to the government any indoctrination by the religious schools. See Zobrest, supra, at 10. |
| [75] | 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. |
| [76] | B. |
| [77] | Respondents inexplicably make no effort to address Chapter 2 under the Agostini test. Instead, dismissing Agostini as factually distinguishable, they offer two rules that they contend should govern our determination of whether Chapter 2 has the effect of advancing religion. They argue first, and chiefly, that "direct, nonincidental" aid to the primary educational mission of religious schools is always impermissible. Second, they argue that provision to religious schools of aid that is divertible to religious use is similarly impermissible.*fn7 Respondents' arguments are inconsistent with our more recent case law, in particular Agostini and Zobrest, and we therefore reject them. |
| [78] | 1. |
| [79] | Although some of our earlier cases, particularly Ball, 473 U. S., at 393-394, did emphasize the distinction between direct and indirect aid, the purpose of this distinction was merely to prevent "subsidization" of religion, see id., at 394. As even the dissent all but admits, see post, at 22 (opinion of Souter, J.), our more recent cases address this purpose not through the direct/indirect distinction but rather through the principle of private choice, as incorporated in the first Agostini criterion (i.e., whether any indoctrination could be attributed to the government). If aid to schools, even "direct aid," is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any "support of religion," Witters, supra, at 489. See supra, at 10-11. Although the presence of private choice is easier to see when aid literally passes through the hands of individuals -- which is why we have mentioned directness in the same breath with private choice, see, e.g., Agostini, supra, at 226; Witters, supra, at 487; Mueller, supra, at 399 -- there is no reason why the Establishment Clause requires such a form. |
| [80] | 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." Agostini, supra, at 226 (quoting Witters, 474 U. S., at 487). In addition, the program in Witters was neutral. 521 U. S., at 225 (quoting Witters, supra, at 487). |
| [81] | As Agostini explained, the same reasoning was at work in Zobrest, where we allowed the government-funded interpreter to provide assistance at a Catholic school, "even though she would be a mouthpiece for religious instruction," because the interpreter was provided according to neutral eligibility criteria and private choice. 521 U. S., at 226. Therefore, the religious messages interpreted by the interpreter could not be attributed to the government, see ibid. (We saw no difference in Zobrest between the government hiring the interpreter directly and the government providing funds to the parents who then would hire the interpreter. 509 U. S., at 13, n. 11.) We rejected the dissent's objection that we had never before allowed "a public employee to participate directly in religious indoctrination." See id., at 18 (Blackmun, J., dissenting). Finally, in Agostini itself, we used the reasoning of Witters and Zobrest to conclude that remedial classes provided under Title I of the ESEA by public employees did not impermissibly finance religious indoctrination. 521 U. S., at 228; see id., at 230-232. We found it insignificant that students did not have to directly apply for Title I services, that Title I instruction was provided to students in groups rather than individually, and that instruction was provided in the facilities of the private schools. Id., at 226-229. |
| [82] | To the extent that respondents intend their direct/indirect distinction to require that any aid be literally placed in the hands of schoolchildren rather than given directly to the school for teaching those same children, the very cases on which respondents most rely, Meek and Wolman, demonstrate the irrelevance of such formalism. In Meek, we justified our rejection of a program that loaned instructional materials and equipment by, among other things, pointing out that the aid was loaned to the schools, and thus was "direct aid." 421 U. S., at 362-363. The materials-and-equipment program in Wolman was essentially identical, except that the State, in an effort to comply with Meek, see Wolman, 433 U. S., at 233, 250, loaned the aid to the students. (The revised program operated much like the one we upheld in Allen. Compare Wolman, supra, at 248, with Allen, 392 U. S., at 243-245.) Yet we dismissed as "technical" the difference between the two programs: "[I]t would exalt form over substance if this distinction were found to justify a result different from that in Meek." 433 U. S., at 250. Wolman thus, although purporting to reaffirm Meek, actually undermined that decision, as is evident from the similarity between the reasoning of Wolman and that of the Meek dissent. Compare Wolman, supra, at 250 (The "technical change in legal bailee" was irrelevant), with Meek, supra, at 391 (Rehnquist, J., concurring in judgment in part and dissenting in part) ("Nor can the fact that the school is the bailee be regarded as constitutionally determinative"). That Meek and Wolman reached the same result, on programs that were indistinguishable but for the direct/indirect distinction, shows that that distinction played no part in Meek. |
| [83] | Further, respondents' formalistic line breaks down in the application to real-world programs. In Allen, for example, although we did recognize that students themselves received and owned the textbooks, we also noted that the books provided were those that the private schools required for courses, that the schools could collect students' requests for books and submit them to the board of education, that the schools could store the textbooks, and that the textbooks were essential to the schools' teaching of secular subjects. See 392 U. S., at 243-245. Whether one chooses to label this program "direct" or "indirect" is a rather arbitrary choice, one that does not further the constitutional analysis. |
| [84] | Of course, we have seen "special Establishment Clause dangers," Rosenberger, 515 U. S., at 842, when money is given to religious schools or entities directly rather than, as in Witters and Mueller, indirectly. See 515 U. S., at 842 (collecting cases); id., at 846-847 (O'Connor, J., concurring); see also Bowen v. Kendrick, 487 U. S. 589, 608-609 (1988); compare Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646 (1980), with Levitt v. Committee for Public Ed. & Religious Liberty, 413 U. S. 472 (1973).*fn8 But direct payments of money are not at issue in this case, and we refuse to allow a "special" case to create a rule for all cases. |
| [85] | 2. |
| [86] | 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. |
| [87] | Our recent precedents, particularly Zobrest, require us to reject respondents' argument. For Zobrest gave no consideration to divertibility or even to actual diversion. Had such things mattered to the Court in Zobrest, we would have found the case to be quite easy -- for striking down rather than, as we did, upholding the program -- which is just how the dissent saw the case. See, e.g., 509 U. S., at 18 (Blackmun, J., dissenting) ("Until now, the Court never has authorized a public employee to participate directly in religious indoctrination"); id., at 22 ("[G]overnment crosses the boundary when it furnishes the medium for communication of a religious message... . [A] state-employed sign-language interpreter would serve as the conduit for James' religious education, thereby assisting Salpointe [High School] in its mission of religious indoctrination"); id., at 23 (interpreter "is likely to place the imprimatur of governmental approval upon the favored religion"); see generally id., at 18-23. Quite clearly, then, we did not, as respondents do, think that the use of governmental aid to further religious indoctrination was synonymous with religious indoctrination by the government or that such use of aid created any improper incentives. |
| [88] | Similarly, had we, in Witters, been concerned with divertibility or diversion, we would have unhesitatingly, perhaps summarily, struck down the tuition-reimbursement program, because it was certain that Witters sought to participate in it to acquire an education in a religious career from a sectarian institution. Diversion was guaranteed. Mueller took the same view as Zobrest and Witters, for we did not in Mueller require the State to show that the tax deductions were only for the costs of education in secular subjects. We declined to impose any such segregation requirement for either the tuition-expense deductions or the deductions for items strikingly similar to those at issue in Meek and Wolman, and here. See Mueller, 463 U. S., at 391, n. 2; see also id., at 414 (Marshall, J., dissenting) ("The instructional materials which are subsidized by the Minnesota tax deduction plainly may be used to inculcate religious values and belief "). |
| [89] | Justice O'Connor acknowledges that the Court in Zobrest and Witters approved programs that involved actual diversion. See post, at 6 (opinion concurring in judgment). The dissent likewise does not deny that Witters involved actual diversion. See post, at 30, n. 16. The dissent does claim that the aid in Zobrest "was not considered divertible," post, at 30, n. 16, but the dissent in Zobrest, which the author of today's dissent joined, understood the case otherwise. See supra, at 22. 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 6, 23 (O'Connor, J., concurring in judgment). By that definition, the government-provided interpreter in Zobrest was not only divertible, but actually diverted. |
| [90] | 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. |
| [91] | 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.*fn9 In Agostini, we explained Zobrest by making just this distinction between the content of aid and the use of that aid: "Because the only government aid in Zobrest was the interpreter, who was herself not inculcating any religious messages, no government indoctrination took place." 521 U. S., at 224 (second emphasis added). Agostini also acknowledged that what the dissenters in Zobrest had charged was essentially true: Zobrest did effect a "shift ... in our Establishment Clause law." 521 U. S., at 225. The interpreter herself, assuming that she fulfilled her assigned duties, see id., at 224-225, had "no inherent religious significance," Allen, 392 U. S., at 244 (discussing bus rides in Everson), and so it did not matter (given the neutrality and private choice involved in the program) that she "would be a mouthpiece for religious instruction," Agostini, supra, at 226 (discussing Zobrest). And just as a government interpreter does not herself inculcate a religious message --even when she is conveying one -- so also a government computer or overhead projector does not itself inculcate a religious message, even when it is conveying one. |
| [92] | In Agostini itself, we approved the provision of public employees to teach secular remedial classes in private schools partly because we concluded that there was no reason to suspect that indoctrinating content would be part of such governmental aid. See 521 U. S., at 223-225, 226-227, 234-235. Relying on Zobrest, we refused to presume that the public teachers would " `inject religious content' " into their classes, 521 U. S., at 225, especially given certain safeguards that existed; we also saw no evidence that they had done so, id., at 226-227. |
| [93] | 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.*fn10 Post, at 20 (O'Connor, J., concurring in judgment) (agreeing with this point). Indeed, the plaintiffs in Walker essentially conceded as much. 46 F. 3d, at 1469, n. 17. A teacher could, for example, easily use Shakespeare's King Lear, even though set in pagan times, to illustrate the Fourth Commandment. See Exodus 20:12 ("Honor your father and your mother"). Thus, it is a non-sequitur for the dissent to contend that the textbooks in Allen were "not readily divertible to religious teaching purposes" because they "had a known and fixed secular content." Post, at 28. |
| [94] | 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)). |
| [95] | It is perhaps conceivable that courts could take upon themselves the task of distinguishing among the myriad kinds of possible aid based on the ease of diverting each kind. But it escapes us how a court might coherently draw any such line. It not only is far more workable, but also is actually related to real concerns about preventing advancement of religion by government, simply to require, as did Zobrest, Agostini, and Allen, that a program of aid to schools not provide improper content and that it determine eligibility and allocate the aid on a permissible basis.*fn11 |
| [96] | C. |
| [97] | The dissent serves up a smorgasbord of 11 factors that, depending on the facts of each case "in all its particularity," post, at 11, 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.*fn12 See post, at 19, 22. Presumably they will be revealed in future cases, as needed, but at least one additional factor is evident from the dissent itself: The dissent resurrects the concern for political divisiveness that once occupied the Court but that post-Aguilar cases have rightly disregarded. Compare post, at 1, 6, 36, 37, 45, n. 27, with Agostini, supra, at 233-234; Bowen, 487 U. S., at 617, n. 14; Amos, 483 U. S., at 339-340, n. 17. As Justice O'Connor explained in dissent in Aguilar: "It is curious indeed to base our interpretation of the Constitution on speculation as to the likelihood of a phenomenon which the parties may create merely by prosecuting a lawsuit." 473 U. S., at 429. While the dissent delights in the perverse chaos that all these factors produce, post, at 34; see also post, at 2, 19-20, the Constitution becomes unnecessarily clouded, and legislators, litigants, and lower courts groan, as the history of this case amply demonstrates. See Part I-B, supra. |
| [98] | 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 19-22, 28-29, 33, 38-41. But that period is one that the Court should regret, and it is thankfully long past. |
| [99] | There are numerous reasons to formally dispense with this factor. First, its relevance in our precedents is in sharp decline. Although our case law has consistently mentioned it even in recent years, we have not struck down an aid program in reliance on this factor since 1985, in Aguilar and Ball. Agostini of course overruled Aguilar in full and Ball in part, and today Justice O'Connor distances herself from the part of Ball with which she previously agreed, by rejecting the distinction between public and private employees that was so prominent in Agostini. Compare post, at 23-25, 29 (opinion concurring in judgment), with Agostini, supra, at 223-225, 234-235. In Witters, a year after Aguilar and Ball, we did not ask whether the Inland Empire School of the Bible was pervasively sectarian. In Bowen, a 1988 decision, we refused to find facially invalid an aid program (although one not involving schools) whose recipients had, the District Court found, included pervasively sectarian institutions. See 487 U. S., at 636, 647, 648 (Blackmun, J., dissenting). Although we left it open on remand for the District Court to reaffirm its prior finding, we took pains to emphasize the narrowness of the "pervasively sectarian" category, see id., at 620-621 (opinion of the Court), and two Members of the majority questioned whether this category was "well-founded," id., at 624 (Kennedy, J., joined by Scalia, J., concurring). Then, in Zobrest and Agostini, we upheld aid programs to children who attended schools that were not only pervasively sectarian but also were primary and secondary. Zobrest, in turning away a challenge based on the pervasively sectarian nature of Salpointe Catholic High School, emphasized the presence of private choice and the absence of government-provided sectarian content. 509 U. S., at 13. Agostini, in explaining why the aid program was constitutional, did not bother to mention that pervasively sectarian schools were at issue,*fn13 see 521 U. S., at 226-235, a fact that was not lost on the dissent, see id., at 249 (opinion of Souter, J.). In disregarding the nature of the school, Zobrest and Agostini were merely returning to the approach of Everson and Allen, in which the Court upheld aid programs to students at pervasively sectarian schools. See post, at 8-9, 20 (Souter, J., dissenting) (noting this fact regarding Everson); Allen, 392 U. S., at 251-252 (Black, J., dissenting); id., at 262-264, 269-270, n. (Douglas, J., dissenting). |
| [100] | 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 10. 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 of their lives, or who make the mistake of being effective in transmitting their views to children. |
| [101] | 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 39-41, 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). |
| [102] | 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 1, 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's 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). Notwithstanding its history, of course, "sectarian" could, on its face, describe the school of any religious sect, but the Court eliminated this possibility of confusion when, in Hunt v. McNair, 413 U. S., at 743, it coined the term "pervasively sectarian" -- a term which, at that time, could be applied almost exclusively to Catholic parochial schools and which even today's dissent exemplifies chiefly by reference to such schools. See post, at 20-21, 39-41 (Souter, J., dissenting). |
| [103] | 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. |
| [104] | III. |
| [105] | 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. |
| [106] | 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, supra, 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 of children in private schools "[t]o the extent consistent with the number of children in the school district of [an LEA] ... who are enrolled in private nonprofit elementary and secondary schools." §7372(a)(1). See App. to Pet. for Cert. 87a (District Court, recounting testimony of head of Louisiana's Chapter 2 program that LEA's are told that " `for every dollar you spend for the public school student, you spend the same dollar for the non-public school student' "); §§7372(a)(1) and (b) (children in private schools must receive "equitable participation"). The allocation criteria therefore create no improper incentive. Chapter 2 does, by statute, deviate from a pure per capita basis for allocating aid to LEA's, increasing the per-pupil allocation based on the number of children within an LEA who are from poor families, reside in poor areas, or reside in rural areas. §§7312(a)-(b). But respondents have not contended, nor do we have any reason to think, that this deviation in the allocation to the LEA's leads to deviation in the allocation among schools within each LEA, see §§7372(a)-(b), and, even if it did, we would not presume that such a deviation created any incentive one way or the other with regard to religion. |
| [107] | Chapter 2 also satisfies the first Agostini criterion. The program makes a broad array of schools eligible for aid without regard to their religious affiliations or lack thereof. §7372; see §7353(a)(3). We therefore have no difficulty concluding that Chapter 2 is neutral with regard to religion. See Agostini, supra, at 225-226. Chapter 2 aid also, like the aid in Agostini, Zobrest, and Witters, reaches participating schools only "as a consequence of private decisionmaking." Agostini, supra, at 222. Private decisionmaking controls because of the per capita allocation scheme, and those decisions are independent because of the program's neutrality. See 521 U. S. at 226. It is the students and their parents -- not the government -- who, through their choice of school, determine who receives Chapter 2 funds. The aid follows the child. |
| [108] | Because Chapter 2 aid is provided pursuant to private choices, it is not problematic that one could fairly describe Chapter 2 as providing "direct" aid. The materials and equipment provided under Chapter 2 are presumably used from time to time by entire classes rather than by individual students (although individual students are likely the chief consumers of library books and, perhaps, of computers and computer software), and students themselves do not need to apply for Chapter 2 aid in order for their schools to receive it, but, as we explained in Agostini, these traits are not constitutionally significant or meaningful. See id., at 228-229. Nor, for reasons we have already explained, is it of constitutional significance that the schools themselves, rather than the students, are the bailees of the Chapter 2 aid. The ultimate beneficiaries of Chapter 2 aid are the students who attend the schools that receive that aid, and this is so regardless of whether individual students lug computers to school each day or, as Jefferson Parish has more sensibly provided, the schools receive the computers. Like the Ninth Circuit, and unlike the dissent, post, at 22, we "see little difference in loaning science kits to students who then bring the kits to school as opposed to loaning science kits to the school directly." Walker, supra, at 1468, n. 16; see Allen, 392 U. S., at 244, n. 6. |
| [109] | 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 pre-existing content, or at least none that would be impermissible for use in public schools. Respondents do not contend otherwise. Respondents also offer no evidence that religious schools have received software from the government that has an impermissible content. |
| [110] | 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 27, 33 (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.*fn14 As to the first, Justice O'Connor rightly places little reliance on it. Post, at 27. As to the second, monitoring by SEA and LEA officials is highly unlikely to prevent or catch diversion.*fn15 As to the third, compliance with the labeling requirement is haphazard, see App. 113a, and, even if the requirement were followed, we fail to see how a label prevents diversion.*fn16 In addition, we agree with the dissent that there is evidence of actual diversion and that, were the safeguards anything other than anemic, there would almost certainly be more such evidence. See post, at 38, 42-46.*fn17 In any event, for reasons we discussed in Part II-B-2, supra, the evidence of actual diversion and the weakness of the safeguards against actual diversion are not relevant to the constitutional inquiry, whatever relevance they may have under the statute and regulations. |
| [111] | 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.*fn18 In other words, the monitoring system worked. See post, at 32 (O'Connor, J., concurring in judgment). Further, the violation by the LEA and the private schools was minor and, in the view of the SEA's coordinator, inadvertent. See App. 122a. There were approximately 191 improper book requests over three years (the 1982-1983 through 1984-1985 school years); these requests came from fewer than half of the 40 private schools then participating; and the cost of the 191 books amounted to "less than one percent of the total allocation over all those years." Id., at 132a-133a. |
| [112] | 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. |
| [113] | IV. |
| [114] | 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, supra, 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.*fn19 To the extent that Meek and Wolman conflict with this holding, we overrule them. |
| [115] | 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 discussing the materials-and-equipment program, did not even cite Allen. See Meek, 421 U. S., at 363-366.) Less than three years after Wolman, we explained that Meek did not, despite appearances, hold that "all loans of secular instructional material and equipment inescapably have the effect of direct advancement of religion." Regan, 444 U. S., at 661-662 (internal quotation marks omitted). Then, in Mueller, we conceded that the aid at issue in Meek and Wolman did "resembl[e], in many respects," the aid that we had upheld in Everson and Allen. 463 U. S., at 393, and n. 3; see id., at 402, n. 10; see also id., at 415 (Marshall, J., dissenting) (viewing Allen as incompatible with Meek and Wolman, and the distinction between textbooks and other instructional materials as "simply untenable"). Most recently, Agostini, in rejecting Ball's assumption that "all government aid that directly assists the educational function of religious schools is invalid," Agostini, supra, at 225, necessarily rejected a large portion (perhaps all, see Ball, 473 U. S., at 395) of the reasoning of Meek and Wolman in invalidating the lending of materials and equipment, for Ball borrowed that assumption from those cases. See 521 U. S., at 220-221 (Shared Time program at issue in Ball was "surely invalid ... [g]iven the holdings in Meek and Wolman" regarding instructional materials and equipment). Today we simply acknowledge what has long been evident and was evident to the Ninth and Fifth Circuits and to the District Court. |
| [116] | The judgment of the Fifth Circuit is reversed. |
| [117] | It is so ordered. |
| [118] | O'Connor, J., concurring in judgment |
| [119] | Justice O'Connor, with whom Justice Breyer joins, concurring in the judgment. |
| [120] | 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 grants to States for the acquisition of library resources, textbooks, and other instructional materials for use by children and teachers in public and private elementary and secondary schools. Since 1965, Congress has reauthorized the Title I and Title II programs several times. Three Terms ago, we held in Agostini v. Felton, 521 U. S. 203 (1997), that Title I, as applied in New York City, did not violate the Establishment Clause. I believe that Agostini likewise controls the constitutional inquiry respecting Title II presented here, and requires the reversal of the Court of Appeals' judgment that the program is unconstitutional as applied in Jefferson Parish, Louisiana. To the extent our decisions in Meek v. Pittenger, 421 U. S. 349 (1975), and Wolman v. Walter, 433 U. S. 229 (1977), are inconsistent with the Court's judgment today, I agree that those decisions should be overruled. I therefore concur in the judgment. |
| [121] | I. |
| [122] | I write separately because, in my view, the plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs. Reduced to its essentials, the plurality's rule states that government aid to religious schools does not have the effect of advancing religion so long as the aid is offered on a neutral basis and the aid is secular in content. The plurality also rejects the distinction between direct and indirect aid, and holds that the actual diversion of secular aid by a religious school to the advancement of its religious mission is permissible. Although the expansive scope of the plurality's rule is troubling, two specific aspects of the opinion compel me to write separately. First, the plurality's treatment of neutrality comes close to assigning that factor singular importance in the future adjudication of Establishment Clause challenges to government school-aid programs. Second, the plurality's approval of actual diversion of government aid to religious indoctrination is in tension with our precedents and, in any event, unnecessary to decide the instant case. |
| [123] | The clearest example of the plurality's near-absolute position with respect to neutrality is found in its following statement: |
| [124] | "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 10 (citation omitted). |
| [125] | 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 35. |
| [126] | I do not quarrel with the plurality's recognition that neutrality is an important reason for upholding government-aid programs against Establishment Clause challenges. Our cases have described neutrality in precisely this manner, and we have emphasized a program's neutrality repeatedly in our decisions approving various forms of school aid. See, e.g., Agostini, supra, at 228, 231-232; Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 10 (1993); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487-488 (1986); id., at 493 (O'Connor, J., concurring in part and concurring in judgment); Mueller v. Allen, 463 U. S. 388, 397-399 (1983). Nevertheless, we have never held that a government-aid program passes constitutional muster solely because of the neutral criteria it employs as a basis for distributing aid. For example, in Agostini, neutrality was only one of several factors we considered in determining that New York City's Title I program did not have the impermissible effect of advancing religion. See 521 U. S., at 226-228 (noting lack of evidence of inculcation of religion by Title I instructors, legal requirement that Title I services be supplemental to regular curricula, and that no Title I funds reached religious schools' coffers). Indeed, given that the aid in Agostini had secular content and was distributed on the basis of wholly neutral criteria, our consideration of additional factors demonstrates that the plurality's rule does not accurately describe our recent Establishment Clause jurisprudence. See also Zobrest, supra, at 10, 12-13 (noting that no government funds reached religious school's coffers, aid did not relieve school of expense it otherwise would have assumed, and aid was not distributed to school but to the child). |
| [127] | 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 12-17. 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 agree with Justice Souter's conclusion that our "most recent use of `neutrality' to refer to generality or evenhandedness of distribution ... is relevant in judging whether a benefit scheme so characterized should be seen as aiding a sectarian school's religious mission, but this neutrality is not alone sufficient to qualify the aid as constitutional." Post, at 17-18. |
| [128] | 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 21-27. Although "[o]ur cases have permitted some government funding of secular functions performed by sectarian organizations," our decisions "provide no precedent for the use of public funds to finance religious activities." Rosenberger, supra, at 847 (O'Connor, J., concurring). At least two of the decisions at the heart of today's case demonstrate that we have long been concerned that secular government aid not be diverted to the advancement of religion. In both Agostini, our most recent school-aid case, and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968), we rested our approval of the relevant programs in part on the fact that the aid had not been used to advance the religious missions of the recipient schools. See Agostini, supra, at 226-227 ("[N]o evidence has ever shown that any New York City Title I instructor teaching on parochial school premises attempted to inculcate religion in students"); Allen, supra, at 248 ("Nothing in this record supports the proposition that all textbooks, whether they deal with mathematics, physics, foreign languages, history, or literature, are used by the parochial schools to teach religion"). Of course, our focus on the lack of such evidence would have been entirely unnecessary if we had believed that the Establishment Clause permits the actual diversion of secular government aid to religious indoctrination. Our decision in Bowen v. Kendrick, 487 U. S. 589 (1988), also demonstrates that actual diversion is constitutionally impermissible. After concluding that the government-aid program in question was constitutional on its face, we remanded the case so that the District Court could determine, after further factual development, whether aid recipients had used the government aid to support their religious objectives. See id., at 621-622; id., at 624 (Kennedy, J., concurring) ("[T]he only purpose of further inquiring whether any particular grantee institution is pervasively sectarian is as a preliminary step to demonstrating that the funds are in fact being used to further religion"). The remand would have been unnecessary if, as the plurality contends, actual diversion were irrelevant under the Establishment Clause. |
| [129] | The plurality bases its holding that actual diversion is permissible on Witters and Zobrest. Ante, at 21-22. Those decisions, however, rested on a significant factual premise missing from this case, as well as from the majority of cases thus far considered by the Court involving Establishment Clause challenges to school-aid programs. Specifically, we decided Witters and Zobrest on the understanding that the aid was provided directly to the individual student who, in turn, made the choice of where to put that aid to use. See Witters, 474 U. S., at 488; Zobrest, 509 U. S., at 10, 12. Accordingly, our approval of the aid in both cases relied to a significant extent on the fact that "[a]ny aid ... that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients." Witters, supra, at 487; see Zobrest, supra, at 10 ("[A] government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents"). This characteristic of both programs made them less like a direct subsidy, which would be impermissible under the Establishment Clause, and more akin to the government issuing a paycheck to an employee who, in turn, donates a portion of that check to a religious institution. See, e.g., Witters, supra, at 486-487; see also Rosenberger, supra, at 848 (O'Connor, J., concurring) (discussing Witters). |
| [130] | Recognizing this distinction, the plurality nevertheless finds Witters and Zobrest -- to the extent those decisions might permit the use of government aid for religious purposes -- relevant in any case involving a neutral, per-capita-aid program. See ante, at 32-33. Like Justice Souter, I do not believe that we should treat a per-capita-aid program the same as the true private-choice programs considered in Witters and Zobrest. See post, at 37. First, when the government provides aid directly to the student beneficiary, that student can attend a religious school and yet retain control over whether the secular government aid will be applied toward the religious education. The fact that aid flows to the religious school and is used for the advancement of religion is therefore wholly dependent on the student's private decision. See Rosenberger, 515 U. S., at 848 (O'Connor, J., concurring) (discussing importance of private choice in Witters); Witters, 474 U. S., at 488 ("[T]he fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the State"); id., at 493 (O'Connor, J., concurring in part and concurring in judgment) ("The aid to religion at issue here is the result of petitioner's private choice"). It is for this reason that in Agostini we relied on Witters and Zobrest to reject the rule "that all government aid that directly assists the educational function of religious schools is invalid," 521 U. S., at 225, yet also rested our approval of New York City's Title I program in part on the lack of evidence of actual diversion, id., at 226-227. |
| [131] | 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 who, in turn, decide to use the aid at the same religious schools. In the former example, if the religious school uses the aid to inculcate religion in its students, it is reasonable to say that the government has communicated a message of endorsement. Because the religious indoctrination is supported by government assistance, the reasonable observer would naturally perceive the aid program as government support for the advancement of religion. That the amount of aid received by the school is based on the school's enrollment does not separate the government from the endorsement of the religious message. The aid formula does not -- and could not -- indicate to a reasonable observer that the inculcation of religion is endorsed only by the individuals attending the religious school, who each affirmatively choose to direct the secular government aid to the school and its religious mission. No such choices have been made. In contrast, when government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, "[n]o reasonable observer is likely to draw from the facts ... an inference that the State itself is endorsing a religious practice or belief." Witters, supra, at 493 (O'Connor, J., concurring in part and concurring in judgment). Rather, endorsement of the religious message is reasonably attributed to the individuals who select the path of the aid. |
| [132] | 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 to religious organizations (including churches) based on the number of persons belonging to each organization. And, because actual diversion is permissible under the plurality's holding, the participating religious organizations (including churches) could use that aid to support religious indoctrination. To be sure, the plurality does not actually hold that its theory extends to direct money payments. See ante, at 20-21. That omission, however, is of little comfort. In its logic -- as well as its specific advisory language, see ante, at 20, n. 8 -- the plurality opinion foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives. |
| [133] | Our school-aid cases often pose difficult questions at the intersection of the neutrality and no-aid principles and therefore defy simple categorization under either rule. As I explained in Rosenberger, "[r]esolution instead depends on the hard task of judging -- sifting through the details and determining whether the challenged program offends the Establishment Clause. Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case." 515 U. S., at 847 (concurring opinion). Agostini represents our most recent attempt to devise a general framework for approaching questions concerning neutral school-aid programs. Agostini also concerned an Establishment Clause challenge to a school-aid program closely related to the one at issue here. For these reasons, as well as my disagreement with the plurality's approach, I would decide today's case by applying the criteria set forth in Agostini. |
| [134] | II. |
| [135] | 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, we still ask "whether the government acted with the purpose of advancing or inhibiting religion" and "whether the aid has the `effect' of advancing or inhibiting religion." Id., at 222-223. We also concluded in Agostini, however, that the specific criteria used to determine whether government aid has an impermissible effect had changed. Id., at 223. Looking to our recently decided cases, we articulated three primary criteria to guide the determination whether a government-aid program impermissibly advances religion: (1) whether the aid results in governmental indoctrination, (2) whether the aid program defines its recipients by reference to religion, and (3) whether the aid creates an excessive entanglement between government and religion. Id., at 234. Finally, we noted that the same criteria could be reviewed to determine whether a government-aid program constitutes an endorsement of religion. Id., at 235. |
| [136] | 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. |
| [137] | 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 "where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis." Ibid. Under Chapter 2, the Secretary of Education allocates funds to the States based on each State's share of the Nation's school-age population. 20 U. S. C. §7311(b). The state educational agency (SEA) of each recipient State, in turn, must distribute the State's Chapter 2 funds to local educational agencies (LEA's) "according to the relative enrollments in public and private, nonprofit schools within the school districts of such agencies," adjusted to take into account those LEA's "which have the greatest numbers or percentages of children whose education imposes a higher than average cost per child." §7312(a). The LEA must then expend those funds on "innovative assistance programs" designed to improve student achievement. §7351. The statute generally requires that an LEA ensure the "equitable participation" of children enrolled in private nonprofit elementary and secondary schools, §7372(a)(1), and specifically mandates that all LEA expenditures on behalf of children enrolled in private schools "be equal (consistent with the number of children to be served) to expenditures for programs . . . for children enrolled in the public schools of the [LEA]," §7372(b). As these statutory provisions make clear, Chapter 2 uses wholly neutral and secular criteria to allocate aid to students enrolled in religious and secular schools alike. As a result, it creates no financial incentive to undertake religious indoctrination. |
| [138] | 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 students on private school premises during regular school hours. Twelve years earlier, in Aguilar v. Felton, 473 U. S. 402 (1985), we had held the same New York City program unconstitutional. In Ball, a companion case to Aguilar, we also held that a similar program in Grand Rapids, Michigan, violated the Constitution. Our decisions in Aguilar and Ball were both based on a presumption, drawn in large part from Meek, see 421 U. S., at 367-373, that public-school instructors who teach secular classes on the campuses of religious schools will inevitably inculcate religion in their students. |
| [139] | In Agostini, we recognized that "[o]ur more recent cases [had] undermined the assumptions upon which Ball and Aguilar relied." 521 U. S., at 222. First, we explained that the Court had since abandoned "the presumption erected in Meek and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion." Id., at 223. Rather, relying on Zobrest, we explained that in the absence of evidence showing that teachers were actually using the Title I aid to inculcate religion, we would presume that the instructors would comply with the program's secular restrictions. See Agostini, 521 U. S., at 223-224, 226-227. The Title I services were required by statute to be " `secular, neutral, and nonideological.' " Id., at 210 (quoting 20 U. S. C. §6321(a)(2)). |
| [140] | 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 non-religious character of the recipient school. See Agostini, 521 U. S., at 225-226. With respect to the specific Title I program at issue, we noted several factors that precluded us from finding an impermissible financing of religious indoctrination: the aid was "provided to students at whatever school they choose to attend," the services were "by law supplemental to the regular curricula" of the benefited schools, "[n]o Title I funds ever reach the coffers of religious schools," and there was no evidence of Title I instructors having "attempted to inculcate religion in students." Id., at 226-228. Relying on the same factors, we also concluded that the New York City program could not "reasonably be viewed as an endorsement of religion." Id., at 235. Although we found it relevant that Title I services could not be provided on a school-wide basis, we also explained that this fact was likely a sufficient rather than a necessary condition of the program's constitutionality. We were not "willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid." Id., at 229. |
| [141] | The Chapter 2 program at issue here bears the same hallmarks of the New York City Title I program that we found important in Agostini. First, as explained above, Chapter 2 aid is distributed on the basis of neutral, secular criteria. The aid is available to assist students regardless of whether they attend public or private nonprofit religious schools. Second, the statute requires participating SEA's and LEA's to use and allocate Chapter 2 funds only to supplement the funds otherwise available to a religious school. 20 U. S. C. §7371(b). Chapter 2 funds must in no case be used to supplant funds from non-Federal sources. Ibid. Third, no Chapter 2 funds ever reach the coffers of a religious school. Like the Title I program considered in Agostini, all Chapter 2 funds are controlled by public agencies -- the SEA's and LEA's. §7372(c)(1). The LEA's purchase instructional and educational materials and then lend those materials to public and private schools. See §§7351(a), (b)(2). With respect to lending to private schools under Chapter 2, the statute specifically provides that the relevant public agency must retain title to the materials and equipment. §7372(c)(1). Together with the supplantation restriction, this provision ensures that religious schools reap no financial benefit by virtue of receiving loans of materials and equipment. Finally, the statute provides that all Chapter 2 materials and equipment must be "secular, neutral, and nonideological." §7372(a)(1). That restriction is reinforced by a further statutory prohibition on "the making of any payment ... for religious worship or instruction." §8897. Although respondents claim that Chapter 2 aid has been diverted to religious instruction, that evidence is de minimis, as I explain at greater length below. See infra, at 29-31. |
| [142] | III. |
| [143] | 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 28, 38. |
| [144] | 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 Establishment Clause. 392 U. S., at 238. We explained that the statute "merely [made] available to all children the benefits of a general program to lend school books free of charge," that the State retained ownership of the textbooks, and that religious schools received no financial benefit from the program. Id., at 243-244. We specifically rejected the contrary argument that the statute violated the Establishment Clause because textbooks are critical to the teaching process, which in a religious school is employed to inculcate religion. Id., at 245-248. |
| [145] | 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 cases that the lending of instructional materials and equipment to religious schools was unconstitutional. See Meek, supra, at 362-366; Wolman, supra, at 248-251. We reasoned that, because the religious schools receiving the materials and equipment were pervasively sectarian, any assistance in support of the schools' educational missions would inevitably have the impermissible effect of advancing religion. For example, in Meek we explained: |
| [146] | "[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)). |
| [147] | Thus, we held that the aid program "necessarily results in aid to the sectarian school enterprise as a whole," and "inescapably results in the direct and substantial advancement of religious activity." Meek, supra, at 366 (emphases added). Similarly, in Wolman, we concluded that, "[i]n view of the impossibility of separating the secular education function from the sectarian, the state aid inevitably flows in part in support of the religious role of the schools." 433 U. S., at 250 (emphasis added). |
| [148] | For whatever reason, the Court was not willing to extend this presumption of inevitable religious indoctrination to school aid when it instead consisted of textbooks lent free of charge. For example, in Meek, despite identifying the religious schools' secular educational functions and religious missions as inextricably intertwined, 421 U. S., at 366, the Court upheld the textbook lending program because "the record in the case ... , like the record in Allen, contains no suggestion that religious textbooks will be lent or that the books provided will be used for anything other than purely secular purposes," id., at 361-362 (citation omitted). Accordingly, while the Court was willing to apply an irrebuttable presumption that secular instructional materials and equipment would be diverted to use for religious indoctrination, it required evidence that religious schools were diverting secular textbooks to religious instruction. |
| [149] | 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 equipment in the above respect is symptomatic of its failure even to attempt to distinguish the . . . textbook loan program, which the plurality upholds, from the ... instructional materials and equipment loan program, which the majority finds unconstitutional"). The irrationality of this distinction is patent. As one Member of our Court has noted, it has meant that "a State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class." Wallace v. Jaffree, 472 U. S. 38, 110 (1985) (Rehnquist, J., dissenting) (footnotes omitted). |
| [150] | 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. |
| [151] | 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 religious instruction. Respondents therefore claim that the Establishment Clause prohibits the government from giving or lending aid to religious schools when that aid is reasonably divertible to religious uses. See, e.g., Brief for Respondents 11, 35. Justice Souter also states that the divertibility of secular government aid is an important consideration under the Establishment Clause, although he apparently would not ascribe it the constitutionally determinative status that respondents do. See post, at 19, 25-30. |
| [152] | I would reject respondents' proposed divertibility rule. First, respondents cite no precedent of this Court that would require it. The only possible direct precedential support for such a rule is a single sentence contained in a footnote from our Wolman decision. There, the Court described Allen as having been "premised on the view that the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses." Wolman, supra, at 251, n. 18. To the extent this simple description of Allen is even correct, it certainly does not constitute an actual holding that the Establishment Clause prohibits the government from lending any divertible aid to religious schools. Rather, as explained above, the Wolman Court based its holding invalidating the lending of instructional materials and equipment to religious schools on the rationale adopted in Meek -- that the secular educational function of a religious school is inseparable from its religious mission. See Wolman, supra, at 250. Indeed, if anything, the Wolman footnote confirms the irrationality of the distinction between textbooks and instructional materials and equipment. After the Wolman Court acknowledged that its holding with respect to instructional materials and equipment was in tension with Allen, the Court explained the continuing validity of Allen solely on the basis of stare decisis: "Board of Education v. Allen has remained law, and we now follow as a matter of stare decisis the principle that restriction of textbooks to those provided the public schools is sufficient to ensure that the books will not be used for religious purposes." Wolman, 433 U. S., at 252, n. 18. Thus, the Wolman Court never justified the inconsistent treatment it accorded the lending of textbooks and the lending of instructional materials and equipment based on the items' reasonable divertibility. |
| [153] | 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 28 (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 28. This view would have come as a surprise to the Court in Meek, which expressly conceded that "the material and equipment that are the subjec |