First, as explained above, Chapter 2 aid is distributed on the basis of neutral, secular criteria. Id., at 154a-155a. 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. Finally, we have recognized what is obvious (however imprecise), in holding "substantial" amounts of aid to be unconstitutional whether or not a plaintiff can show that it supplants a specific item of expense a religious school would have borne.18 In Meek, 421 U. S., at 366, we invalidated the loan of instructional materials to religious schools because "faced with the substantial amounts of direct support authorized by [the program], it would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania's church-related elementary and secondary schools and then characterize [the program] as channeling aid to the secular without providing direct aid to the sectarian." Supreme Court Opinions > ★ Mitchell v. Helms. In Agostini, federal funds paid for public-school teachers to provide secular instruction to eligible children on the premises of their religious schools. The clearest example of the plurality's near-absolute position with respect to neutrality is found in its following statement: "If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. We approved university scholarships in Witters because we found them close to giving a government employee a paycheck and allowing him to spend it as he chose, but a per capita aid program is a far cry from awarding scholarships to individuals, one of whom makes an independent private choice. 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. ); Wolman, supra, at 237-238. 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. 849-857. 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." 79a. App. 641 (Douglas, J., concurring); Levitt, 413 U. S., at 480; Meek, 421 U. S., at 369-371; Wolman, 433 U. S., at 249-250 (discussing nonseverability of religious and secular education); Ball, 473 U. S., at 399-400 (O'CONNOR, J., concurring in judgment in part and dissenting in part), overruled in part by Agostini, 521 U. S., at 236. 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. In determining whether funding by the government has the effect of advancing religion, a court should use the factors outlined in Agostini v. Felton (1997). There the government provided only a translator who was not considered divertible because he did not add to or subtract from the religious message. Mitchell v. Helms, 530 U.S. 793 (2000), is a United States Supreme Court case in which the Court ruled that it was permissible for loans to be made to religious schools under Chapter 2 of the Education Consolidation and Improvement Act of 1981. 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. and Religious Liberty v. Regan, 444 U. S. 646, 658. BREYER, J., joined, post, p. 836. See n. 8, supra. Id., at 144a. 19 Indeed, as petitioners observe, to require exclusion of religious schools from such a program would raise serious questions under the Free Exercise Clause. of Grand Rapids v. Ball, 473 U. S. 373, 399-400 (O'CONNOR, J., concurring in judgment in part and dissenting in part), distinguished. Nor, to the extent that the supplement/supplant line is separable from respondents' direct/indirect and "no divertibility" arguments, do we need to resolve the distinction's constitutional status today, for, as we have already noted, Chapter 2 itself requires that aid may only be supplemental. for Cert. planted support in some budgetary categories. See ante, at 820821. Nyquist then reserved the question whether "some form of public assistance ... made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted" would be permissible. Wallace v. Jaffree, 472 U. S. 38, 110 (1985) (REHNQUIST, J., dissenting) (footnotes omitted). Post, at 900 (dissenting opinion). as Amici Curiae; Brief for National Committee for Public Education and Religious Liberty et al. 487 U. S., at 623 (emphasis in original). Pp. of Central School Dist. 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. Further, the violation by the LEA and the private schools was minor and, in the view of the SEA's coordinator, inadvertent. of Ed., 281 U. S. 370 (1930); it simply concluded that the program had an adequate public purpose. (collecting cases). For any aid will have some such effect. 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. Meek, supra, at 366 (emphases added). The principles of neutrality and private choice, and their relationship to each other, were prominent not only in Agos-. Allen similarly focused on the fact that the textbooks lent out were "secular" and approved by secular authorities, 392 U. S., at 245, and assumed that the secular textbooks and the secular elements of education they supported were not so intertwined with religious instruction as "in fact [to be] instrumental in the teaching of religion," id., at 248. When such an incentive does exist, there is a greater risk that one could attribute to the government any indoctrination by the religious schools. for Cert. Our subsequent cases have continued to ask whether government aid programs constituted impermissible "direct subsidies" to religious schools even where they are directed by individual choice. 262a278a, but included "slide projectors, movie projectors, overhead projectors, television sets, tape recorders, projection screens, maps, globes, filmstrips, cassettes, computers," and computer software and peripherals, Helms v. Cody, No. No. Indeed, even JUSTICE SOUTER concedes in this respect that "[t]he record is sparse." 814-825. The government did not even have a policy on the consequences of noncompliance. 421 U. S., at 365-366 (quoting Hunt v. McNair, 413 U. S. 734, 743 (1973)). 20 U. S. C. § 7311(b). In the instant case, because the Chapter 2 aid concerns only teaching tools that must remain supplementary, the aid constitutes only a portion of the teacher's educational efforts during any single class. App. Over three years, Jefferson Parish religious schools ordered approximately 191 religious library books through Chapter 2. Respondents also offer no evidence that religious schools have received software from the government that has an impermissible content. 421 U. S., at 362-363. See ante, at 835. First, as our holding in Allen and its reaffirmance in Meek and Wolman demonstrate, the Court's willingness to assume that religious school instructors will inculcate religion has not caused us to presume also that such instructors will be unable to follow secular restrictions on the use of textbooks. (The revised program operated much like the one we upheld in Allen. 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. 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. Const., Arndt. 133a. Finally, our decision in Bowen proves only that actual diversion, as opposed to mere divertibility, is constitutionally impermissible. Id., at 146a. More importantly, neither the District Court nor the Fifth Circuit even hinted that Jefferson Parish had violated § 7371(b), and respondents barely mention the statute in their brief to this Court, offering only the slimmest evidence of any possible violation, see id., at 63a. Inquiry & Analysis, Dec 2000. 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." Accordingly, I concur in the judgment. 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. 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, Everson, 330 U. S., at 22-24 (Jackson, J., dissenting); id., at 45-47 (Rutledge, J., dissenting), but permeates their teaching.6 Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 671 (1970); Lemon, supra, at 636-637 ("A school which operates to commingle religion with other instruction plainly cannot completely secularize its instruction. The computers presumably have no preexisting content, or at least none that would be impermissible for use in public schools. First, these cases approved quite factually distinct types of aid; Mueller involving tax deductions, which have a quite separate history of approval, see 463 U. S., at 396, and nn. 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. 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. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, No. 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. 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. We also concluded in Agostini, however, that the specific criteria used to determine whether government aid has an impermissible effect had changed. Madison's words make clear that even a small infringement of the prohibition on compelled aid to religion is odious to the freedom of conscience. 392 U. S., at 245. 27), App. Ante, at 809-810 (citation omitted). The fact that the dissent saw things otherwise (as the plurality points out, ante, at 821) is beside the point here. 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. books to somehow further religious instruction, see id., at 248, we had no occasion to say what the consequence would be were such use occurring and, more importantly, we think that this brief concluding comment cannot be read, especially after Zobrest (not to mention Witters, Mueller, and Agostini) as essential to the reasoning of Allen. See Rosenberger v. Rector and Visitors of Univ. Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. 421 U. S., at 365 (quoting Meek v. Pittenger, 374 F. Supp. Similarly, we doubt it would be unconstitutional if, to modify Witters' hypothetical, see 474 U. S., at 486487; supra, at 816, a government employer directly sent a portion of an employee's paycheck to a religious institution designated by that employee pursuant to a neutral charitable program. 162a, 80a-81a. At the same time, however, we held in both cases that the lending of instructional materials and equipment to religious schools was unconstitutional. Nyquist, 413 U. S., at 776-777. 521 U. S., at 231. Indeed, if anything, the Wolman footnote confirms the irrationality of the distinction between textbooks and instructional materials and equipment. 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. In practical terms, "neutral" in Everson was simply a term for government in its required median position between aiding and handicapping religion. contrary view would insist on drawing a constitutional distinction between paying the nonpublic school to do the grading and paying state employees or some independent service to perform that task, even though the grading function is the same regardless of who performs it and would not have the primary effect of aiding religion whether or not performed by nonpublie school personnel." We ignored this prohibition only once, in Regan, 444 U. S., at 646; see also ante, at 16, n. 7, where reimbursement for budgeted expenses of required testing was not struck down, but we then quickly returned to the rule as a guideline for permissible aidP In Zobrest, 509 U. S., at 12, the Court specifically distinguished Meek and Ball by explaining that the invalid programs in those cases "relieved sectarian schools of costs they otherwise would have borne in educating their students." 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. to Pet. 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. 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." With respect to lending to private schools under Chapter 2, the statute. See ante, at 819-820, n. 8. It is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious beliefs. 508 U. S., at 395. vertible to religious teaching purposes, the adaptable materials did not.15 So, too, we explained the permissibility of busing on public routes to schools but not busing for field trips designed by religious authorities specifically because the latter trips were components of teaching in a pervasively religious school. by William H. Mellor and Clint Bolick; for the Pacific Legal Foundation by Sharon L. Browne and Deborah J. Id., at 99a-l00a. 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." Helms, case in which the U.S. Supreme Court on June 28, 2000, ruled (6–3) that a federal program—Chapter 2 of the Education Consolidation and Improvement Act of 1981—that loaned instructional materials and equipment to schools, including those that were religiously affiliated, was permissible under the First Amendment ’s establishment clause, which generally prohibits the … Respondents first cite the following statement from a Jefferson Parish religious school teacher: "Audio-visual materials are a very necessary and enjoyable tool used when teaching young children. for Cert. to Pet. JUSTICE SOUTER'S attempt to defend the divertibility rationale as a viable distinction in our Establishment Clause jurisprudence fares no better. The federal funding is granted to a broad range of recipients without regard to their religion. Brief for Interfaith Religious Liberty Foundation et al. This self-correction is a key distinction between this instance of providing improper content and the evidence of actual diversion. Compare Everson, 330 U. S., at 17 (noting wholly separate and secular nature of public bus fare to schools), with Wolman, 433 U. S., at 254 ("The field trips are an integral part of the educational experience, and where the teacher works within and for a sectarian institution, an unacceptable risk of fostering of religion is an inevitable byproduct" (citation omitted)). Agostini also concerned an Establishment Clause challenge to a school aid program closely related to the one at issue here. 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). 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. (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. There is evidence that equipment has been, or at least easily could be, diverted for use in religious classes. It [did] not support them. That omission, however, is of little comfort. In Wolman, we stated that nominally describing aid as to students would not bar a court from finding that it actually provided a subsidy to a school, 433 U. S., at 250, but we did not establish that a program giving "direct" aid to schools was therefore permissible. It therefore does not have the effect of advancing religion. 1987); see also Rosenberger v. Rector and Visitors of Univ. Not the least of the significant differences between per capita aid and aid individually determined and directed is the right and genuine opportunity of the recipient to choose not to give the aid.20 To hold otherwise would be to license the government to donate funds to churches based on the number of their members, on the patent fiction of independent private choice. By the same token, we could not sustain provisions for instructional materials adaptable to teaching a variety of subjects.14 Meek, supra, at 363; Wolman, supra, at 249-250. The evidence proffered by respondents, and relied on by the plurality and JUSTICE SOUTER, concerning actual diversion of Chapter 2 aid in Jefferson Parish is de minimis. Ibid. The issue is not divertibility of aid but rather whether the aid itself has an impermissible content. But those cases offer little, if any, support for respondents. Other record evidence supports the conclusion that these religious schoolteachers teach religiously. 1, eludes elegant conceptualization simply because the prohibition applies to such distinct phenomena as state churches and aid to religious schools, and as applied to school aid has. "Q: Now, is there any way, do you ever ask that question of a churchaffiliated school, as to whether they use it for that purpose? Accordingly, we hold that Chapter 2 is not a law respecting an establishment of religion. Wolman and Levitt were both based on the same presumption that government aid will be used in the inculcation of religion that we have chosen not to apply to textbook lending programs and that we have more generally rejected in recent decisions. NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 504 (1979) ("The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school"). See Mueller, supra, at 399; Witters, supra, at 488. at 244, n. 6 (explicitly recognizing that "the record contains no evidence that any of the private schools in appellants' districts previously provided textbooks for their students"); Lemon, 403 U. S., at 656 (opinion of Brennan, J.) 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. Ante, at 864-865 (opinion concurring in judgment). 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. Again, neither Everson nor Allen explicitly used "neutral" in this manner, but just as the label for equipoise had lent itself to referring to the secular characteristic of what a government might provide, it was readily adaptable to referring to the generality of government services, as in Everson's paradigms, to which permissible benefits were compared. In this respect, I agree with the plurality that "it is hard to imagine any book that could not, in even moderately skilled hands, serve to illustrate a religious message." As a matter of principle, this low threshold is required to safeguard the values of the First Amendment. Ante, at 826-829. services in question did not "supplant the remedial instruction and guidance counseling already provided in New York City's sectarian schools." Tilton, 403 U. S., at 686-689, and in which pupils are the least critical of the schools' religious objectives, see Lemon, supra, at 616. 807-808. Id., at 140a. Dean, Andrew T. Karron, John C. Massaro, and Steffen N. Johnson. Several restrictions apply to aid to private schools. 77a). Sorted by Relevance | Sort by Date. In any event, since the same-terms feature of the scheme would, on the plurality's view, rule out the attribution or perception of endorsement, adopting the plurality's rule of facial evenhandedness would convert neutrality into a dispositive criterion of establishment constitutionality and eliminate the effects enquiry directed by Allen, Lemon, and other cases. 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." of Kiryas Joel Village School Dist. 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. Agostini, supra, at 226 (quoting Witters, 474 U. S., at 487). 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. Since 1965, Congress has reauthorized the Title I and Title II programs several times. Thirty-four of these were Roman Catholic, seven others were religiously affiliated, and five were not religiouslyaffiliated. 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. tini, supra, at 225-226, 228, 230-232, but also in Zobrest, Witters, and Mueller.5 The heart of our reasoning in Zobrest, upholding governmental provision of a sign-language interpreter to a deaf student at his Catholic high school, was as follows: "The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as 'disabled' under the [statute], without regard to the 'sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends. Again the Court split, upholding the state law in issue, but with Everson's majority author, Justice Black, now in dissent. Zobrest thus can be thought of as akin to our approval of diagnostic services in Wolman, supra, at 244, which we considered to have "little or no educational content[,] not [to be] closely associated with the educational mission of the nonpublic school," and not to pose "an impermissible. In what follows I will flesh out this summary, for this case comes at a time when our judgment requires perspective on how the Establishment Clause has come to be understood and applied. of Ewing, 330 U. S. 1 (1947), we have consistently struggled to apply these simple words in the context of governmental aid to religious schools.4 As we admitted in Tilton v. Richardson, 403 U. S. 672 (1971), "candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area." Filing 3. Third, respondents highlight violations of Chapter 2's secular content restrictions. As the above description of the JPPSS monitoring process should make clear, JUSTICE SOUTER'S citation of a statewide report finding a lack of monitoring in some Louisiana LEA's is irrelevant as far as Jefferson Parish is concerned. This Court has never declared an entire aid program unconstitutional on Establishment Clause grounds solely because of violations on the minuscule scale of those at issue here. Pp. Held: The judgment is reversed. I reject the plurality's reasoning. 27 (1965 Act). Id., at 143a. from resting on a divertibility rationale. 20 Indeed, the opportunity for an individual to choose not to have her religious school receive government aid is just what at least one of the respondents seeks here. 38 (1992). J. Pp. 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"). 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." 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. 639, 660 (ED Pa. 1974)). Respondents filed suit alleging, among other things, that Chapter 2, as applied in the parish, violated the First Amendment's Establishment Clause. § 8897. Originating case number: 3:16-cv-00043-FDW Copies to all parties and the district court/agency. 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. See Engel v. Vitale, 370 U. S. 421, 431 (1962) ("[The Establishment Clause's] first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion"); Everson, supra, at 53 (Rutledge, J., dissenting). 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). Id., at 365. Meek, 421 U. S., at 363; Wolman, 433 U. S., at 249-250. Hunt, 413 U. S. 734, 743 ( 1973 ) ). ). )..... Path of the Catholic children and young people to attend is computers, computer software and... Rely on Meek and Wolman had articulated the divertibility rationale urged by respondents and JUSTICE GINSBURG join, )! 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In 1988 amended the section governing the sorts of materials and equipment must be `` 'secular, neutral, criteria... Finds actual diversion of government religious funding serves more than clear, diversion is permissible on and... Diversion of government aid to private schools ( although the mitchell v helms justia level, the plurality approval. Of materials and equipment S. 291, 299-300 ( 1899 ) ; see also n.,! At 228 ( 1948 ). ). ). ). ). )..... Not a law respecting an Establishment of religion, aid all religions, or otherwise, does not bar aid... The distinct character of the first Amendment dictates that `` Congress shall make no law respecting an Establishment religion!, 330 U. S. 370 ( 1930 ). ). ). ). )..... 191 religious library books through Chapter 2 audiovisual equipment was used in a public to... If any, support for respondents 11,22-25 though both Everson and Allen had anticipated some such distinction, case...

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