MITCHELL et al

MITCHELL et al. v. HELMS et al.

No. 98‑1648. Argued December 1, 1999‑‑Decided June 28, 2000

Chapter 2 of the Education Consolidation and Improvement Act of 1981 ... [provides] educational materials and equipment, such as library and media materials and computer software and hardware, to public and private elementary and secondary schools...

Justice Thomas announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.

...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.

Chapter 2 of the Education Consolidation and Improvement Act of 1981 has its origins in the Elementary and Secondary Education Act of 1965 and is a close cousin of the provision of the ESEA that we recently considered in Agostini v. Felton (1997). Like the provision at issue in Agostini, Chapter 2 channels federal funds to local educational agencies (LEA’s), which are usually public school districts, via state educational agencies (SEA’s), to implement programs to assist children in elementary and secondary schools. Among other things, Chapter 2 provides aid

for the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials.

LEA’s and SEA’s must offer assistance to both public and private schools (although any private school must be nonprofit). Participating private schools receive Chapter 2 aid based on the number of children enrolled in each school ... LEA’s and SEA’s may not operate their programs “so as to supplant funds from non‑Federal sources.”

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.” In addition, private schools may not acquire control of Chapter 2 funds or title to Chapter 2 materials, equipment, or property. A private school receives the materials and equipment ... 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.

...[P]rivate 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...for acquiring library and media materials, and 48% for instructional equipment. Among the materials and equipment provided have been library books, computers, and computer software, and also slide and movie projectors, overhead projectors, television sets, tape recorders, VCR’s, projection screens, laboratory equipment, maps, globes, filmstrips, slides, and cassette recordings.

It appears that, in an average year, about 30% of Chapter 2 funds spent in Jefferson Parish are allocated for private schools. For the 1985‑1986 fiscal year, 41 private schools participated in Chapter 2. For the following year, 46 participated, and the participation level has remained relatively constant since then. Of these 46, 34 were Roman Catholic; 7 were otherwise religiously affiliated; and 5 were not religiously affiliated.

Respondents filed suit in December 1985, alleging, among other things, that Chapter 2, as applied in Jefferson Parish, violated the Establishment Clause...

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.

...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,

in Agostini we modified Lemon for purposes of evaluating aid to schools and examined only the first and second factors. 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...

three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not

(a) result in governmental indoctrination;

(b) define its recipients by reference to religion; or

In this case, our inquiry under Agostini’s purpose and effect test is a narrow one ... [R]espondents do not challenge the District Court’s holding that Chapter 2 has a secular purpose ... [and] 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”...

...[W]hether 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 ...[1]

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...has been done at the behest of the government ... [I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose...then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose...

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.” ... 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...[2]

...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...[3]

Respondents ... 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. Respondents’ arguments are inconsistent with our more recent case law...

Although some of our earlier cases ... did emphasize the distinction between direct and indirect aid, the purpose of this distinction was merely to prevent “subsidization” of religion.[4] As even the dissent all but admits, 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 benefitting 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.” 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–there is no reason why the Establishment Clause requires such a form.

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 ... So long as the governmental aid is not itself “unsuitable for use in the public schools because of religious content,” 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.[5] ...

...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.^[i]

...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 ... 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” ... [I]t is hard to imagine any book that could not, in even moderately skilled hands, serve to illustrate a religious message ... 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”).[6]

...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...[7]

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...

...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. But that period is one that the Court should regret, and it is thankfully long past ... [T]he religious nature of a recipient should not matter to the constitutional analysis, so long as the recipient adequately furthers the government’s secular purpose. 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.

...[T]he 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. Yet that is just what this factor requires ... [T]he 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...

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”... This doctrine, born of bigotry, should be buried now.

III

...[W]e see no basis for concluding that Jefferson Parish’s Chapter 2 program “has the effect of advancing religion” ... 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...^[ii]

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.^[iii] In other words, the monitoring system worked ... We are unwilling to elevate scattered de minimis statutory violations, discovered and remedied by the relevant authorities themselves prior to any litigation, to such a level as to convert an otherwise unobjectionable parishwide program into a law that has the effect of advancing religion.^[iv]

Justice O’Connor, with whom Justice Breyer joins, concurring in the judgment.

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 ... 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...

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. Nevertheless, we have never held that a government‑aid program passes constitutional muster solely because of the neutral criteria it employs...

...I also disagree with the plurality’s conclusion that actual diversion of government aid to religious indoctrination is consistent with the Establishment Clause ... [A]ctual diversion is constitutionally impermissible [8] ...

Like Justice Souter, I do not believe that we should treat a per‑capita‑aid program the same as the true private‑choice programs [9] ... [W]hen 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.[10]

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 Lynch v. Donnelly, 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 ... 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...[11]

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 ... 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.[12] 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...[13]

...[W]e need ask only whether the program results in governmental indoctrination or defines its recipients by reference to religion. Taking the second inquiry first, it is clear that Chapter 2 does not define aid recipients by reference to religion...

Agostini next requires us to ask whether Chapter 2 “result[s] in governmental indoctrination” ... 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 ... 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 ... [The statute also ensures that] no Chapter 2 funds ever reach the coffers of a religious school ... Finally, the statute provides that all Chapter 2 materials and equipment must be “secular, neutral, and nonideological”...

III

...[Respondents] 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...

I would reject respondents’ proposed divertibility rule ... An educator can use virtually any instructional tool, whether it has ascertainable content or not, to teach a religious message [14] ... Moreover, if the mere ability of a teacher to devise a religious lesson involving the secular aid in question suffices to hold the provision of that aid unconstitutional, it is difficult to discern any limiting principle to the divertibility rule. For example, even a publicly financed lunch would apparently be unconstitutional under a divertibility rationale because religious‑school officials conceivably could use the lunch to lead the students in a blessing over the bread ...[15]

Justice Souter is correct to note our continued recognition of the special dangers associated with direct money grants to religious institutions. It does not follow, however, that we should treat as constitutionally suspect any form of secular aid that might conceivably be diverted to a religious use ...

Justice Souter contends that any evidence of actual diversion requires the Court to declare the Chapter 2 program unconstitutional as applied in Jefferson Parish ... I know of no case in which we have declared an entire aid program unconstitutional on Establishment Clause grounds solely because of violations on the miniscule scale of those at issue here ...

Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.

The First Amendment’s Establishment Clause prohibits Congress (and, by incorporation, the States) from making any law respecting an establishment of religion. It has been held to prohibit not only the institution of an official church, but any government act favoring religion, a particular religion, or for that matter irreligion. Thus it bars the use of public funds for religious aid.[16]

The establishment prohibition of government religious funding serves more than one end:

(1) to guarantee the right of individual conscience against compulsion,

(2) to protect the integrity of religion against the corrosion of secular support, and

(3) to preserve the unity of political society against the implied exclusion of the less favored and the antagonism of controversy over public support for religious causes.

These objectives are always in some jeopardy since the substantive principle of no aid to religion is not the only limitation on government action toward religion. Because the First Amendment also bars any prohibition of individual free exercise of religion, and because religious organizations cannot be isolated from the basic government functions that create the civil environment, it is as much necessary as it is difficult to draw lines between forbidden aid and lawful benefit. For more than 50 years, this Court has been attempting to draw these lines. Owing to the variety of factual circumstances in which the lines must be drawn, not all of the points creating the boundary have enjoyed self‑evidence.

So far as the line drawn has addressed government aid to education, a few fundamental generalizations are nonetheless possible. There may be no aid supporting a sectarian school’s religious exercise or the discharge of its religious mission, while aid of a secular character with no discernible benefit to such a sectarian objective is allowable. Because the religious and secular spheres largely overlap in the life of many such schools, the Court has tried to identify some facts likely to reveal the relative religious or secular intent or effect of the government benefits in particular circumstances. We have asked whether the government is acting neutrally in distributing its money, and about the form of the aid itself, its path from government to religious institution, its divertibility to religious nurture, its potential for reducing traditional expenditures of religious institutions, and its relative importance to the recipient, among other things.

In all the years of its effort, the Court has isolated no single test of constitutional sufficiency ... Particular factual circumstances control, and the answer is a matter of judgment ... I believe the Court commits error in failing to recognize the divertibility of funds to the service of religious objectives ... [It also] espouses a new conception of neutrality as a practically sufficient test of constitutionality that would, if adopted by the Court, eliminate enquiry into a law’s effects. The plurality position breaks fundamentally with Establishment Clause principle, and with the methodology painstakingly worked out in support of it...

The prohibition that “Congress shall make no law respecting an establishment of religion” eludes elegant conceptualization simply because the prohibition applies to such distinct phenomena as state churches and aid to religious schools, and as applied to school aid has prompted challenges to programs ranging from construction subsidies to hearing aids to textbook loans. Any criteria, moreover, must not only define the margins of the establishment prohibition, but must respect the succeeding Clause of the First Amendment guaranteeing religion’s free exercise. It is no wonder that the complementary constitutional provisions and the inexhaustably various circumstances of their applicability have defied any simple test and have instead produced a combination of general rules often in tension at their edges. If coherence is to be had, the Court has to keep in mind the principal objectives served by the Establishment Clause, and its application to school aid, and their recollection may help to explain the misunderstandings that underlie the majority’s result in this case.

At least three concerns have been expressed since the founding and run throughout our First Amendment jurisprudence. First, compelling an individual to support religion violates the fundamental principle of freedom of conscience. Madison’s and Jefferson’s now familiar words establish clearly that liberty of personal conviction requires freedom from coercion to support religion, and this means that the government can compel no aid to fund it ... Second, government aid corrupts religion ... Madison argued that establishment of religion weakened the beliefs of adherents so favored, strengthened their opponents, and generated “pride and indolence in the Clergy; ignorance and servility in the laity; [and] in both, superstition, bigotry and persecution” ... In a variant of Madison’s concern, we have repeatedly noted that a government’s favor to a particular religion or sect threatens to taint it with “corrosive secularism” ... Third, government establishment of religion is inextricably linked with conflict ...^[v]

These concerns are reflected in the Court’s classic summation delivered in Everson v. Board of Education,, its first opinion directly addressing standards governing aid to religious schools ... The most directly pertinent doctrinal statements here are these: no government “can pass laws which aid one religion [or] all religions ... No tax in any amount...can be levied to support any religious activities or institutions... whatever form they may adopt to teach...religion.” Thus, the principle of “no aid,” with which no one in Everson disagreed.

Immediately, however, there was the difficulty over what might amount to “aid” or “support.” The problem for the Everson Court was not merely the imprecision of the words, but the “other language of the [First Amendment that] commands that [government] cannot hamper its citizens in the free exercise of their own religion,” with the consequence that government must “be a neutral in its relations with groups of religious believers and non‑believers.” Since withholding some public benefits from religious groups could be said to “hamper” religious exercise indirectly, and extending other benefits said to aid it, an argument‑proof formulation of the no‑aid principle was impossible, and the Court wisely chose not to attempt any such thing...

Today, the substantive principle of no aid to religious mission remains the governing understanding of the Establishment Clause as applied to public benefits inuring to religious schools ... The cases have, however, recognized that in actual Establishment Clause litigation over school aid legislation, there is no pure aid to religion and no purely secular welfare benefit; the effects of the laws fall somewhere in between, with the judicial task being to make a realistic allocation between the two possibilities. The Court’s decisions demonstrate its repeated attempts to isolate considerations relevant in classifying particular benefits as between those that do not discernibly support or threaten support of a school’s religious mission, and those that cross or threaten to cross the line into support for religion.

The most deceptively familiar of those considerations is “neutrality,” the presence or absence of which, in some sense, we have addressed from the moment of Everson itself ... I say “some sense,” for we have used the term in at least three ways in our cases ... In practical terms, “neutral” in Everson was simply a term for government in its required median position between aiding and handicapping religion ... The Court began to employ “neutrality” in a [different] sense ... as it explicated the distinction between “religious” and “secular” benefits to religious schools, the latter being in some circumstances permissible ... Such was the Court’s premise in Lemon for shifting the use of the word “neutral” from labeling the required position of the government to describing a benefit that was nonreligious... [T]he Court again transformed the sense of “neutrality” in the 1980’s ... [W]e began to use the word “neutral” to mean “evenhanded,” in the sense of allocating aid on some common basis to religious and secular recipients...

There is, of course, good reason for considering the generality of aid and the evenhandedness of its distribution in making close calls between benefits that in purpose or effect support a school’s religious mission and those that do not ... [E]venhanded distribution is one pointer toward the law’s purpose, since on the face of it aid distributed generally and without a religious criterion is less likely to be meant to aid religion than a benefit going only to religious institutions or people. And, depending on the breadth of distribution, looking to evenhandedness is a way of asking whether a benefit can reasonably be seen to aid religion in fact; we do not regard the postal system as aiding religion, even though parochial schools get mail. Given the legitimacy of considering evenhandedness, then, there is no reason to avoid the term “neutrality” to refer to it. But one crucial point must be borne in mind.

In the days when “neutral” was used in Everson’s sense...neutrality was tantamount to constitutionality; ... when it applied it meant that the government’s position was constitutional under the Establishment Clause. This is not so at all, however, under the most recent use of “neutrality” to refer to generality or evenhandedness of distribution. This kind of neutrality is relevant in judging whether a benefit scheme so characterized should be seen as aiding a sectarian school’s religious mission, but this neutrality is not alone sufficient to qualify the aid as constitutional. It is to be considered only along with other characteristics of aid...that have been emphasized over the years as indicators of just how religious the intent and effect of a given aid scheme really is...

...Evenhandedness in distributing a benefit approaches the equivalence of constitutionality in this area only when the term refers to such universality of distribution that it makes no sense to think of the benefit as going to any discrete group. Conversely, when evenhandedness refers to distribution to limited groups within society, like groups of schools or schoolchildren, it does make sense to regard the benefit as aid to the recipients.

Hence, if we looked no further than evenhandedness, and failed to ask what activities the aid might support, or in fact did support, religious schools could be blessed with government funding as massive as expenditures made for the benefit of their public school counterparts, and religious missions would thrive on public money...

At least three main lines of enquiry addressed particularly to school aid have emerged to complement evenhandedness neutrality. First, we have noted that two types of aid recipients heighten Establishment Clause concern: pervasively religious schools and primary and secondary religious schools. Second, we have identified two important characteristics of the method of distributing aid: directness or indirectness of distribution and distribution by genuinely independent choice. Third, we have found relevance in at least five characteristics of the aid itself: its religious content; its cash form; its divertibility or actual diversion to religious support; its supplantation of traditional items of religious school expense; and its substantiality.

Two types of school aid recipients have raised special concern. First, we have recognized the fact that the overriding religious mission of certain schools, those sometimes called “pervasively sectarian,” is not confined to a discrete element of the curriculum, but permeates their teaching.^[vi] ...As religious teaching cannot be separated from secular education in such schools or by such teachers, we have concluded that direct government subsidies to such schools are prohibited because they will inevitably and impermissibly support religious indoctrination.^[vii]

Second, we have expressed special concern about aid to primary and secondary religious schools. On the one hand, we have understood how the youth of the students in such schools makes them highly susceptible to religious indoctrination. On the other, we have recognized that the religious element in the education offered in most sectarian primary and secondary schools is far more intertwined with the secular than in university teaching, where the natural and academic skepticism of most older students may separate the two. Thus, government benefits accruing to these pervasively religious primary and secondary schools raise special dangers of diversion into support for the religious indoctrination of children and the involvement of government in religious training and practice.

We have also evaluated the portent of support to an organization’s religious mission that may be inherent in the method by which aid is granted, finding pertinence in at least two characteristics of distribution. First, we have asked whether aid is direct or indirect, observing distinctions between government schemes with individual beneficiaries and those whose beneficiaries in the first instance might be religious schools. Direct aid obviously raises greater risks, although recent cases have discounted this risk factor...

Second, we have distinguished between indirect aid that reaches religious schools only incidentally as a result of numerous individual choices and aid that is in reality directed to religious schools by the government or in practical terms selected by religious schools themselves. In these cases, we have declared the constitutionality of programs providing aid directly to parents or students as tax deductions or scholarship money ... but only as the result of “genuinely independent and private choices of aid recipients.”

...[A] number of features of the aid itself have figured in the classifications we have made. First, we have barred aid with actual religious content, which would obviously run afoul of the ban on the government’s participation in religion...^[viii]

Second, we have long held government aid invalid when circumstances would allow its diversion to religious education. The risk of diversion is obviously high when aid in the form of government funds makes its way into the coffers of religious organizations, and so from the start we have understood the Constitution to bar outright money grants of aid to religion.

...Divertibility is not, of course, a characteristic of cash alone, and when examining provisions for ostensibly secular supplies we have considered their susceptibility to the service of religious ends.^[ix] ... [T]he most recent example of attention to the significance of divertibility occurred in our explanation that public school teachers could be assigned to provide limited instruction in religious schools in Agostini, a majority of the Court rejecting the factual assumption that public school teachers could be readily lured into providing religious instruction.

Third, our cases have recognized the distinction, adopted by statute in the Chapter 2 legislation, between aid that merely supplements and aid that supplants expenditures for offerings at religious schools, the latter being barred. Although we have never adopted the position that any benefit that flows to a religious school is impermissible because it frees up resources for the school to engage in religious indoctrination, from our first decision holding it permissible to provide textbooks for religious schools we have repeatedly explained the unconstitutionality of aid that supplants an item of the school’s traditional expense...

Finally, we have recognized what is obvious (however imprecise), in holding “substantial” amounts of aid to be unconstitutional whether or not a plaintiff can show that it supplants a specific item of expense a religious school would have borne...

This stretch of doctrinal history leaves one point clear beyond peradventure: together with James Madison we have consistently understood the Establishment Clause to impose a substantive prohibition against public aid to religion and, hence, to the religious mission of sectarian schools ... The object of all enquiries into such matters is the same whatever the particular circumstances: is the benefit intended to aid in providing the religious element of the education and is it likely to do so?

The substance of the law has thus not changed since Everson. Emphasis on one sort of fact or another has varied depending on the perceived utility of the enquiry, but all that has been added is repeated explanation of relevant considerations, confirming that our predecessors were right in their prophecies that no simple test would emerge to allow easy application of the establishment principle.

The plurality, however, would reject that lesson. The majority misapplies it.

III

The nub of the plurality’s new position is this:

[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose...

As a break with consistent doctrine the plurality’s new criterion is unequaled in the history of Establishment Clause interpretation. Simple on its face, it appears to take evenhandedness neutrality and in practical terms promote it to a single and sufficient test for the establishment constitutionality of school aid. Even on its own terms, its errors are manifold, and attention to at least three of its mistaken assumptions will show the degree to which the plurality’s proposal would replace the principle of no aid with a formula for generous religious support.

First, the plurality treats an external observer’s attribution of religious support to the government as the sole impermissible effect of a government aid scheme ... [While perceived state endorsement of religion is] undoubtedly a relevant concern under the Establishment Clause, it is certainly not the only one ... Everson made this clear from the start: secret aid to religion by the government is also barred. State aid not attributed to the government would still violate a taxpayer’s liberty of conscience, threaten to corrupt religion, and generate disputes over aid ...Under the plurality’s rule of neutrality, if a program met the first part of the Lemon enquiry, by declining to define a program’s recipients by religion, it would automatically satisfy the second, in supposedly having no impermissible effect of aiding religion.^[x]

Second, the plurality apparently assumes as a fact that equal amounts of aid to religious and nonreligious schools will have exclusively secular and equal effects, on both external perception and on incentives to attend different schools ... But there is no reason to believe that this will be the case ... This is the reason that we have long recognized that unrestricted aid to religious schools will support religious teaching in addition to secular education, a fact that would be true no matter what the supposedly secular purpose of the law might be.[17]

Third, the plurality assumes that per capita distribution rules safeguard the same principles as independent, private choices. But that is clearly not so ... Not the least of the significant differences between per capita aid and aid individually determined and directed is the right and genuine opportunity of the recipient to choose not to give the aid. To hold otherwise would be to license the government to donate funds to churches based on the number of their members, on the patent fiction of independent private choice.[18]

The plurality’s mistaken assumptions explain and underscore its sharp break with the Framers’ understanding of establishment and this Court’s consistent interpretative course. Under the plurality’s regime, little would be left of the right of conscience against compelled support for religion; the more massive the aid the more potent would be the influence of the government on the teaching mission; the more generous the support, the more divisive would be the resentments of those resisting religious support, and those religions without school systems ready to claim their fair share.

The plurality’s conception of evenhandedness does not, however, control the case, whose disposition turns on the misapplication of accepted categories of school aid analysis. The facts most obviously relevant to the Chapter 2 scheme in Jefferson Parish are those showing divertibility and actual diversion in the circumstance of pervasively sectarian religious schools. The type of aid, the structure of the program, and the lack of effective safeguards clearly demonstrate the divertibility of the aid. While little is known about its use, owing to the anemic enforcement system in the parish, even the thin record before us reveals that actual diversion occurred.

The aid that the government provided was highly susceptible to unconstitutional use. Much of the equipment provided under Chapter 2 was not of the type provided for individual students ... The videocassette players, overhead projectors, and other instructional aids were of the sort that we have found can easily be used by religious teachers for religious purposes ... Although library books, like textbooks, have fixed content, religious teachers can assign secular library books for religious critique, and books for libraries may be religious, as any divinity school library would demonstrate.[19] The sheer number and variety of books that could be and were ordered gave ample opportunity for such diversion.

The divertibility thus inherent in the forms of Chapter 2 aid was enhanced by the structure of the program in Jefferson Parish ... The sectarian schools decided what they wanted and often ordered the supplies, to be forwarded directly to themselves. It was easy to select whatever instructional materials and library books the schools wanted, just as it was easy to employ computers for the support of the religious content of the curriculum infused with religious instruction.

The concern with divertibility thus predicated is underscored by the fact that the religious schools in question here covered the primary and secondary grades, the grades in which the sectarian nature of instruction is characteristically the most pervasive, and in which pupils are the least critical of the schools’ religious objectives. No one, indeed, disputes ... that the Roman Catholic schools, which made up the majority of the private schools participating, were pervasively sectarian,^[xi] that their common objective and mission was to engage in religious education,^[xii] and that their teachers taught religiously,^[xiii] making them precisely the kind of primary and secondary religious schools that raise the most serious Establishment Clause concerns. The threat to Establishment Clause values was accordingly at its highest in the circumstances of this case. Such precautionary features as there were in the Jefferson Parish scheme were grossly inadequate to counter the threat. To be sure, the disbursement of the aid was subject to statutory admonitions against diversion, and was supposedly subject to a variety of safeguards. But...the safeguard provisions proved to be empty phrases in Jefferson Parish.

...Monitors visited a nonpublic school only sporadically, discussed the program with a single contact person, observed nothing more than attempts at recordkeeping, and failed to inform the teachers of the restrictions involved. Although Chapter 2 required labeling of government property, it occurred haphazardly at best, and the government’s sole monitoring system for computer use amounted to nothing more than questioning school officials and examining the location of computers at the schools. No records of software and computer use were kept, and no such recordkeeping was even planned. State and local officials in Jefferson Parish admitted that nothing prevented the Chapter 2 computers from being used for religious instruction, and although they knew of methods of monitoring computer usage, such as locking the computer functions, they implemented no particular policies, instituted no systems, and employed no technologies to minimize the likelihood of diversion to religious uses.

...Government officials themselves admitted that there was no way to tell whether instructional materials had been diverted, and, as the plurality notes, the only screening mechanism in the library book scheme was a review of titles by a single government official. The government did not even have a policy on the consequences of noncompliance.

The risk of immediate diversion of Chapter 2 benefits had its complement in the risk of future diversion, against which the Jefferson Parish program had absolutely no protection. By statute all purchases with Chapter 2 aid were to remain the property of the United States, merely being “lent” to the recipient nonpublic schools. In actuality, however, the record indicates that nothing in the Jefferson Parish program stood in the way of giving the Chapter 2 property outright to the religious schools when it became older. Although old equipment remained the property of the local education agency, a local government administrative body, one agency employee testified that there was no set policy for dealing with old computers, which were probably given outright to the religious schools. The witness said that government‑funded instructional materials, too, were probably left with the religious schools when they were old, and that it was unclear whether library books were ever to be returned to the government.[20]

Providing such governmental aid without effective safeguards against future diversion itself offends the Establishment Clause, and even without evidence of actual diversion, our cases have repeatedly held that a “substantial risk” of it suffices to invalidate a government aid program on establishment grounds...

But the record here goes beyond risk, to instances of actual diversion. What one would expect from such paltry efforts at monitoring and enforcement naturally resulted, and the record strongly suggests that other, undocumented diversions probably occurred as well. First, the record shows actual diversion in the library book program. Although only limited evidence exists, it contrasts starkly with the records of the numerous textbook programs that we have repeatedly upheld, where there was no evidence of any actual diversion ... [D]iscovery revealed that under Chapter 2, nonpublic schools requested and the government purchased at least 191 religious books with taxpayer funds by December 1985.^[xiv] Books such as A Child’s Book of Prayers and The Illustrated Life of Jesus were discovered among others that had been ordered under the program.

The evidence persuasively suggests that other aid was actually diverted as well. The principal of one religious school testified, for example, that computers lent with Chapter 2 funds were joined in a network with other non‑Chapter 2 computers in some schools, and that religious officials and teachers were allowed to develop their own unregulated software for use on this network. She admitted that the Chapter 2 computer took over the support of the computing system whenever there was a breakdown of the master computer purchased with the religious school’s own funds...

Indeed, the plurality readily recognizes that the aid in question here was divertible and that substantial evidence of actual diversion exists ... The Court has no choice but to hold that the program as applied violated the Establishment Clause.

...[T]here is no mistaking the abandonment of doctrine that would occur if the plurality were to become a majority. It is beyond question that the plurality’s notion of evenhandedness neutrality as a practical guarantee of the validity of aid to sectarian schools would be the end of the principle of no aid to the schools’ religious mission. And if that were not so obvious it would become so after reflecting on the plurality’s thoughts about diversion and about giving attention to the pervasiveness of a school’s sectarian teaching.

...To the plurality there is nothing wrong with aiding a school’s religious mission; the only question is whether religious teaching obtains its tax support under a formally evenhanded criterion of distribution. The principle of no aid to religious teaching has no independent significance.

And if this were not enough to prove that no aid in religious school aid is dead under the plurality’s First Amendment, the point is nailed down in the plurality’s attack on the legitimacy of considering a school’s pervasively sectarian character when judging whether aid to the school is likely to aid its religious mission. The relevance of this consideration is simply a matter of common sense: where religious indoctrination pervades school activities of children and adolescents, it takes great care to be able to aid the school without supporting the doctrinal effort. This is obvious. The plurality nonetheless condemns any enquiry into the pervasiveness of doctrinal content as a remnant of anti‑Catholic bigotry (as if evangelical Protestant schools and Orthodox Jewish yeshivas were never pervasively sectarian), and it equates a refusal to aid religious schools with hostility to religion ... My concern with these arguments goes not so much to their details as it does to the fact that the plurality’s choice to employ imputations of bigotry and irreligion as terms in the Court’s debate makes one point clear: that...the plurality is attacking the most fundamental assumption underlying the Establishment Clause, that government can in fact operate with neutrality in its relation to religion. I believe that it can, and so respectfully dissent.