MITCHELL et al. v. HELMS et al.

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793 OCTOBER TERM, 1999
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MITCHELL et al. v. HELMS et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 98–1648. Argued December 1, 1999—Decided June 28, 2000
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 soft-
ware 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 Chap-
ter 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 equip-
ment 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 pro-
viding many of the same sorts of materials and equipment as does Chap-
ter 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 equip-
ment, 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 Agos-
tini 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.

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794 MITCHELL v. HELMS
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Held: The judgment is reversed.
151 F. 3d 347, reversed.
Justice Thomas, joined by The Chief Justice, Justice Scalia,
and Justice Kennedy, concluded that Chapter 2, as applied in Jeffer-
son Parish, is not a law respecting an establishment of religion simply
because many of the private schools receiving Chapter 2 aid in the par-
ish are religiously affiliated. Pp. 807–836.
(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 en-
tanglement 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 pri-
mary criteria for determining a statute’s effect: Government aid has the
effect of advancing religion if it (1) results in governmental indoctrina-
tion, (2) defines its recipients by reference to religion, or (3) creates an
excessive entanglement. Ibid. In this case, the inquiry under Agos-
tini’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, be-
cause the District Court’s holding that Chapter 2 does not create an
excessive entanglement is not challenged. Pp. 807–808.
(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 indoctri-
nation 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 indoctrina-
tion that is not, the Court has consistently turned to the neutrality prin-
ciple, 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 pri-
mary criterion—whether an aid program defines its recipients by refer-
ence to religion, id., 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

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those facts to answer a somewhat different question—whether the crite-
ria for allocating the aid create a financial incentive to undertake reli-
gious 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. 809–814.
(c) Two rules offered by respondents to govern the determination
whether Chapter 2 has the effect of advancing religion are rejected.
Pp. 814–825.
(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 distinc-
tion is to prevent “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 indoctri-
nation 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 re-
spondents’ absolute line. 521 U. S., at 225. To the extent respondents
intend their direct/indirect distinction to require that any aid be liter-
ally 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 Board of Ed. of
Central School Dist. No. 1 v. Allen, 392 U. S. 236, 243–245. Although
“special Establishment Clause dangers” may exist when money is given
directly to religious schools, see, e. g., Rosenberger v. Rector and Visi-
tors of Univ. of Va., 515 U. S. 819, 842, such direct payments are not at
issue here. Pp. 815–820.
(ii) Respondents’ second argument—that provision to religious
schools of aid that is divertible to religious use is always impermissi-
ble—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 diverti-

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796 MITCHELL v. HELMS
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bility 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 gov-
ernment 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 es-
tablishment 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. 820–825.
(d) Additional factors cited by the dissent—including the concern for
political divisiveness that post-Aguilar v. Felton, 473 U. S. 402, cases
have disregarded, see, e. g., Agostini, supra, at 233–234, are rejected.
In particular, whether a recipient school is pervasively sectarian, a fac-
tor that has been disregarded in recent cases, e. g., Witters, supra, is not
relevant to the constitutionality of a school-aid program. Pp. 825–829.
(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 nondis-
criminatory 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 at-
tend. 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 in-
sofar as relevant to this case. Although there is evidence that equip-
ment has been, or at least easily could be, diverted for use in religious
classes, that evidence is not relevant to the constitutional analysis.

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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. 829–835.
(f) To the extent that Meek and Wolman conflict with the foregoing
analysis, they are overruled. Pp. 835–836.
Justice O’Connor, joined by Justice Breyer, concluded that Agos-
tini 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. 836–867.
(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 treat-
ment of neutrality comes close to assigning that factor singular impor-
tance 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. Be-
cause 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 Agos-
tini criteria should control here. Pp. 837–844.
(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 re-
cent cases, see id., at 223, which disclose three primary criteria to guide
the determination: (1) whether the aid results in governmental indoctri-

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nation, (2) whether the program defines its recipients by reference to
religion, and (3) whether the aid creates an excessive entanglement be-
tween government and religion, id., at 234. Finally, the same criteria
can be reviewed to determine whether a program constitutes endorse-
ment of religion. Id., at 235. Respondents neither question the Chap-
ter 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 Chap-
ter 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 supplemen-
tary to, and does not supplant, nonfederal 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 re-
quirements, 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 en-
dorsement of religion. Pp. 844–849.
(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 stu-
dents did not violate the Establishment Clause, see, e. g., Meek, 421
U. S., at 359–362 (plurality opinion), but invalidated the lending of in-
structional 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 imper-
missible effect of advancing religion, see, e. g., id., at 365–366. The irra-
tionality 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. 849–857.
(d) The Court should follow the rule applied in the context of text-
book lending programs: To establish a First Amendment violation, plain-
tiffs must prove that the aid actually is, or has been, used for religious

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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 pro-
grams under the Establishment Clause. Respondents’ contentions that
Agostini should be limited to its facts, and that a presumption of reli-
gious inculcation for instructional materials and equipment should be
retained, must be rejected. The assumption that religious-school in-
structors can abide by restrictions on the use of government-provided
textbooks, see Meek, supra, at 384, should extend to instructional mate-
rials and equipment. School Dist. of Grand Rapids v. Ball, 473 U. S.
373, 399–400 (O’Connor, J., concurring in judgment in part and dissent-
ing in part), distinguished. Pp. 857–860.
(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 discov-
ery (which began approximately 15 years ago) is at best de minimis and
therefore insufficient to affect the constitutional inquiry. Their asser-
tion 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 respect-
ing the use of instructional materials and equipment by religious-school
teachers should be abandoned, there is no constitutional need for perva-
sive 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 vio-
lations on the minuscule 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. 860–867.
Thomas, J., announced the judgment of the Court and delivered an opin-
ion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined.
O’Connor, J., filed an opinion concurring in the judgment, in which

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800 MITCHELL v. HELMS
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Breyer, J., joined, post, p. 836. Souter, J., filed a dissenting opinion, in
which Stevens and Ginsburg, JJ., joined, post, p. 867.
Michael W. McConnell argued the cause for petitioners.
With him on the briefs were Patricia A. Dean, Andrew T.
Karron, John C. Massaro, and Steffen N. Johnson.
Deputy Solicitor General Underwood argued the cause for
respondents. With her on the briefs were Solicitor General
Waxman, Acting Assistant Attorney General Ogden, Paul
R. Q. Wolfson, Michael Jay Singer, and Howard S. Scher.
Lee Boothby argued the cause for respondents. With him
on the brief was Nicholas P. Miller.*
*Briefs of amici curiae urging reversal were filed for the State of
Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward
B. Foley, State Solicitor, Robert C. Maier, Assistant Solicitor, and by the
Attorneys General for their respective States as follows: Ken Salazar of
Colorado, Robert A. Butterworth of Florida, James E. Ryan of Illinois,
Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub
of Louisiana, Jennifer M. Granholm of Michigan, Mike Moore of Missis-
sippi, Don Stenberg of Nebraska, John J. Farmer, Jr., of New Jersey,
Charles M. Condon of South Carolina, and Mark L. Earley of Virginia; for
the City of New York et al. by Michael D. Hess, Leonard J. Koerner, and
Edward F. X. Hart; for the American Center for Law and Justice by Jay
Alan Sekulow, John P. Tuskey, Walter W. Weber, Colby M. May, and Vin-
cent P. McCarthy; for the Arizona Council for Academic Private Education
et al. by Edward McGlynn Gaffney, Jr., and David J. Hessler; for the AVI
CHAI Foundation by Nathan Lewin, Julia E. Guttman, and Jody Manier
Kris; for the Becket Fund for Religious Liberty by Kevin J. Hasson and
Eric W. Treene; for the Catholic League for Religious and Civil Rights by
Robert P. George; for the Knights of Columbus by Kevin T. Baine and
Emmet T. Flood; for the United States Catholic Conference by Mark E.
Chopko, John A. Liekweg, and Jeffrey Hunter Moon; and for the Washing-
ton Legal Foundation by Daniel J. Popeo and R. Shawn Gunnarson.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Drew S. Days III, Anthony M. Radice, Lev
L. Dassin, and Laura R. Taichman; for the Baptist Joint Committee on
Public Affairs by Melissa Rogers and J. Brent Walker; for the Interfaith
Religious Liberty Foundation et al. by Derek Davis and Alan J. Reinach;
for the National Committee for Public Education and Religious Liberty
et al. by Marshall Beil and Philip Goldstein; for the National Education

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801 Cite as: 530 U. S. 793 (2000)
Opinion of Thomas, J.
Justice Thomas announced the judgment of the Court
and delivered an opinion, in which The Chief Justice,
Justice Scalia, and Justice Kennedy join.
As part of a longstanding school-aid program known as
Chapter 2, the Federal Government distributes funds to
state and local governmental agencies, which in turn lend
educational materials and equipment to public and private
schools, with the enrollment of each participating school de-
termining the amount of aid that it receives. The question
is whether Chapter 2, as applied in Jefferson Parish, Louisi-
ana, is a law respecting an establishment of religion, because
many of the private schools receiving Chapter 2 aid in that
parish are religiously affiliated. We hold that Chapter 2 is
not such a law.
I
A
Chapter 2 of the Education Consolidation and Improve-
ment Act of 1981, Pub. L. 97–35, 95 Stat. 469, as amended,
20 U. S. C. §§ 7301–7373,1 has its origins in the Elementary
and Secondary Education Act of 1965 (ESEA), Pub. L. 89–10,
79 Stat. 55, and is a close cousin of the provision of the ESEA
Association by Robert H. Chanin, Jeremiah A. Collins, and Michael D.
Simpson; for the National Jewish Commission on Law and Public Affairs
by Dennis Rapps, David Zwiebel, Nathan Diament, and Nathan Lewin;
and for the National School Boards Association et al. by Julie Underwood,
Jay Worona, and Pilar Sokol.
Briefs of amici curiae were filed for the Christian Legal Society et al.
by Steven T. McFarland, Samuel B. Casey, and Carl H. Esbeck; for the
Institute for Justice et al. by William H. Mellor and Clint Bolick; for the
Pacific Legal Foundation by Sharon L. Browne and Deborah J. La Fetra;
and for the Rutherford Institute by John W. Whitehead and Steven H.
Aden.
1 Chapter 2 is now technically Subchapter VI of Chapter 70 of 20 U. S. C.,
where it was codified by the Improving America’s Schools Act of 1994,
Pub. L. 103–382, 108 Stat. 3707. For convenience, we will use the term
“Chapter 2,” as the lower courts did. Prior to 1994, Chapter 2 was codi-
fied at 20 U. S. C. §§ 2911–2976 (1988 ed.).

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802 MITCHELL v. HELMS
Opinion of Thomas, J.
that we recently considered in Agostini v. Felton, 521 U. S.
203 (1997). Like the provision at issue in Agostini, Chap-
ter 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 as-
sist children in elementary and secondary schools. Among
other things, Chapter 2 provides aid
“for the acquisition and use of instructional and educa-
tional materials, including library services and materials
(including media materials), assessments, reference ma-
terials, computer software and hardware for instruc-
tional use, and other curricular materials.” 20 U. S. C.
§ 7351(b)(2).
LEA’s and SEA’s must offer assistance to both public and
private schools (although any private school must be non-
profit). §§ 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 pri-
vate schools “in the purposes and benefits” of Chapter 2.
§ 7372(a)(1); see § 7372(b). Further, Chapter 2 funds may
only “supplement and, to the extent practical, increase the
level of funds that would . . . be made available from non-
Federal sources.” § 7371(b). LEA’s and SEA’s may not
operate their programs “so as to supplant funds from non-
Federal sources.” Ibid.
Several restrictions apply to aid to private schools. Most
significantly, the “services, materials, and equipment” pro-
vided to private schools must be “secular, neutral, and non-
ideological.” § 7372(a)(1). In addition, private schools may
not acquire control of Chapter 2 funds or title to Chapter 2

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Opinion of Thomas, J.
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 detail-
ing 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.
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 ex-
penses, 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 instruc-
tional equipment. Among the materials and equipment pro-
vided have been library books, computers, and computer
software, and also slide and movie projectors, overhead pro-
jectors, television sets, tape recorders, VCR’s, projection
screens, laboratory equipment, maps, globes, filmstrips,
slides, and cassette recordings.2
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 partic-
ipated, and the participation level has remained relatively
constant since then. See App. 132a. Of these 46, 34 were
Roman Catholic; 7 were otherwise religiously affiliated; and
5 were not religiously affiliated.
B
Respondents filed suit in December 1985, alleging, among
other things, that Chapter 2, as applied in Jefferson Parish,
2 Congress in 1988 amended the section governing the sorts of mate-
rials and equipment available under Chapter 2. Compare 20 U. S. C.
§ 3832(1)(B) (1982 ed.) with § 7351(b)(2) (1994 ed.). The record in this case
closed in 1989, and the effect of the amendment is not at issue.

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804 MITCHELL v. HELMS
Opinion of Thomas, J.
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 re-
cent times, while nevertheless retaining anomalies with
which the lower courts have had to struggle.
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 reli-
gion. 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 equip-
ment as does Chapter 2. In 1994, after having resolved the
numerous other issues in the case, he issued an order perma-
nently excluding pervasively sectarian schools in Jefferson
Parish from receiving any Chapter 2 materials or equipment.
Two years later, Chief Judge Heebe having retired, Judge
Livaudais received the case. Ruling in early 1997 on post-
judgment motions, he reversed the decision of former Chief
Judge Heebe and upheld Chapter 2, pointing to several sig-
nificant 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

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of a federal program for the disabled, provide a sign-
language interpreter to a deaf student at a Catholic high
school.
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 indistinguish-
able.” 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 subse-
quent 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,3 that
“state benefits provided to all citizens without regard to reli-
gion are constitutional.” 46 F. 3d, at 1465. The Ninth Cir-
cuit 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 chal-
lenges,” id., at 704. The Ninth Circuit purported to distin-
guish 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 ob-
served that Meek also upheld “the massive provision of text-
3 Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (upholding re-
imbursement to parents for costs of busing their children to public or
private school).

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books 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.
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 re-
quire a public university to exclude a student-run religious
publication from assistance available to numerous other
student-run publications.
Following Judge Livaudais’ ruling, respondents appealed
to the Court of Appeals for the Fifth Circuit. While that
appeal was pending, we decided Agostini, in which we ap-
proved 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 over-
ruled School Dist. of Grand Rapids v. Ball, 473 U. S. 373
(1985), both of which had involved such a program.
The Fifth Circuit thus faced a dilemma between, on the
one hand, the Ninth Circuit’s holding and analysis in Walker
and our subsequent decisions in Rosenberger and Agostini,
and, on the other hand, our holdings in Meek and Wolman.
To resolve the dilemma, the Fifth Circuit abandoned any ef-
fort 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

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educational function of religious schools is invalid,” id., at
225, had rejected a premise of Meek, but that court neverthe-
less concluded that Agostini had neither directly overruled
Meek and Wolman nor rejected their distinction between
textbooks and other in-kind aid. The Fifth Circuit there-
fore concluded that Meek and Wolman controlled, and thus
it held Chapter 2 unconstitutional. We granted certiorari.
527 U. S. 1002 (1999).
II
The Establishment Clause of the First Amendment dic-
tates that “Congress shall make no law respecting an estab-
lishment of religion.” In the over 50 years since Everson v.
Board of Ed. of Ewing, 330 U. S. 1 (1947), we have consist-
ently 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 com-
pels the acknowledgment that we can only dimly perceive
the boundaries of permissible government activity in this
sensitive area.” Id., at 678 (plurality opinion); see Lemon,
403 U. S., at 671 (White, J., concurring in judgment).
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 entangle-
ment 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 sec-
ond factors, see 521 U. S., at 222–223. We acknowledged
4 Cases prior to Everson discussed the issue only indirectly, see, e. g.,
Vidal v. Philadelphia, 2 How. 127, 198–200 (1844); Quick Bear v. Leupp,
210 U. S. 50, 81 (1908), or evaluated aid to schools under other provisions
of the Constitution, see Cochran v. Louisiana Bd. of Ed., 281 U. S. 370,
374–375 (1930).

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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 entangle-
ment inquiry as simply one criterion relevant to determining
a statute’s effect. Agostini, supra, at 232–233. We also ac-
knowledged 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 deter-
mining the effect of a statute:
“To summarize, New York City’s Title I program does
not run afoul of any of three primary criteria we cur-
rently use to evaluate whether government aid has the
effect of advancing religion: It does not result in govern-
mental indoctrination; define its recipients by reference
to religion; or create an excessive entanglement.” Id.,
at 234.
In this case, our inquiry under Agostini’s purpose and
effect test is a narrow one. Because respondents do not
challenge the District Court’s holding that Chapter 2 has a
secular purpose, and because the Fifth Circuit also did not
question that holding, 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 crite-
ria, since neither respondents nor the Fifth Circuit has ques-
tioned the District Court’s holding, App. to Pet. for Cert.
108a, that Chapter 2 does not create an excessive entangle-
ment. 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 anom-
alies in our case law. We therefore conclude that they are
no longer good law.

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A
As we indicated in Agostini, and have indicated elsewhere,
the question whether governmental aid to religious schools
results in governmental indoctrination is ultimately a ques-
tion whether any religious indoctrination that occurs in
those schools could reasonably be attributed to governmen-
tal action. See Agostini, supra, at 226 (presence of sign-
language interpreter in Catholic school “ ‘cannot be attrib-
uted to state decisionmaking’ ” (quoting Zobrest, 509 U. S., at
10) (emphasis added in Agostini)); 521 U. S., at 230 (question
is whether “any use of [governmental] aid to indoctrinate
religion could be attributed to the State”); see also Rosen-
berger, 515 U. S., at 841–842; Witters v. Washington Dept. of
Servs. for Blind, 474 U. S. 481, 488–489 (1986); Mueller v.
Allen, 463 U. S. 388, 397 (1983); cf. Corporation of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U. S. 327, 337 (1987) (“For a law to have forbidden
‘effects’ under Lemon, it must be fair to say that the govern-
ment 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.
In distinguishing between indoctrination that is attribut-
able to the State and indoctrination that is not, we have con-
sistently 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 govern-
ment. For attribution of indoctrination is a relative ques-
tion. If the government is offering assistance to recipients
who provide, so to speak, a broad range of indoctrination,
the government itself is not thought responsible for any par-

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ticular indoctrination. To put the point differently, if the
government, seeking to further some legitimate secular pur-
pose, offers aid on the same terms, without regard to reli-
gion, 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 fur-
thering 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.
As a way of assuring neutrality, we have repeatedly con-
sidered whether any governmental aid that goes to a reli-
gious 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 individ-
ual parents,” as opposed to the “unmediated” will of govern-
ment, 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, deter-
mine 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 establish-
ment. 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 nonreli-
gious ones.
The principles of neutrality and private choice, and their
relationship to each other, were prominent not only in Agos-

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tini, supra, at 225–226, 228, 230–232, but also in Zobrest, Wit-
ters, and Mueller.5 The heart of our reasoning in Zobrest,
upholding governmental provision of a sign-language inter-
preter to a deaf student at his Catholic high school, was as
follows:
“The service at issue in this case is part of a gen-
eral government program that distributes benefits neu-
trally to any child qualifying as ‘disabled’ under the
[statute], without regard to the ‘sectarian-nonsectarian,
or public-nonpublic nature’ of the school the child at-
tends. 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 par-
ents. In other words, because the [statute] creates no
financial incentive for parents to choose a sectarian
school, an interpreter’s presence there cannot be attrib-
uted to state decisionmaking.” 509 U. S., at 10.
As this passage indicates, the private choices helped to en-
sure neutrality, and neutrality and private choices together
eliminated any possible attribution to the government even
when the interpreter translated classes on Catholic doctrine.
Witters and Mueller employed similar reasoning. In Wit-
ters, we held that the Establishment Clause did not bar a
State from including within a neutral program providing tu-
ition payments for vocational rehabilitation a blind person
studying at a Christian college to become a pastor, mission-
ary, or youth director. We explained:
“Any aid . . . that ultimately flows to religious institu-
tions does so only as a result of the genuinely independ-
ent and private choices of aid recipients. Washington’s
5 Justice O’Connor acknowledges that “neutrality is an important rea-
son for upholding government-aid programs,” one that our recent cases
have “emphasized . . . repeatedly.” Post, at 838 (opinion concurring in
judgment).

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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 educa-
tion. . . . [T]he fact that aid goes to individuals means
that the decision to support religious education is made
by the individual, not by the State.
. . . . .
“[I]t does not seem appropriate to view any aid ulti-
mately flowing to the Inland Empire School of the Bible
as resulting from a state action sponsoring or subsidiz-
ing religion.” 474 U. S., at 487–488 (footnote, citations,
and internal quotation marks omitted).6
Further, five Members of this Court, in separate opinions,
emphasized both the importance of neutrality and of private
choices, and the relationship between the two. See id., at
6 The majority opinion also noted that only a small portion of the overall
aid under the State’s program would go to religious education, see Witters,
474 U. S., at 488, but it appears that five Members of the Court thought
this point irrelevant. See id., at 491, n. 3 (Powell, J., joined by Burger,
C. J., and Rehnquist, J., concurring) (citing Mueller v. Allen, 463 U. S.
388, 401 (1983), to assert that validity of program “does not depend on the
fact that petitioner appears to be the only handicapped student who has
sought to use his assistance to pursue religious training”); 474 U. S., at 490
(White, J., concurring) (agreeing with “most of Justice Powell’s concurring
opinion with respect to the relevance of Mueller,” but not specifying fur-
ther); id., at 493 (O’Connor, J., concurring in part and concurring in judg-
ment) (agreeing with Justice Powell’s reliance on Mueller and explaining
that the program did not have an impermissible effect, because it was
neutral and involved private choice, and thus “[n]o reasonable observer is
likely to draw from the facts before us an inference that the State itself is
endorsing a religious practice or belief ”). More recently, in Agostini v.
Felton, 521 U. S. 203 (1997), we held that the proportion of aid benefiting
students at religious schools pursuant to a neutral program involving pri-
vate choices was irrelevant to the constitutional inquiry. Id., at 229 (re-
fusing “to conclude that the constitutionality of an aid program depends
on the number of sectarian school students who happen to receive the
otherwise neutral aid”); see also post, at 848 (O’Connor, J., concurring in
judgment) (quoting this passage).

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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).
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, de-
termined 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 gen-
erally.” Ibid. (citation omitted); see id., at 397 (neutrality
indicates lack of state imprimatur).
Agostini’s second primary criterion for determining the
effect of governmental aid is closely related to the first. The
second criterion requires a court to consider whether an aid
program “define[s] its recipients by reference to religion.”
521 U. S., at 234. As we briefly explained in Agostini, id.,
at 230–231, this second criterion looks to the same set of
facts as does our focus, under the first criterion, on neutral-
ity, 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 Agos-
tini we set out the following rule for answering this
question:
“This incentive is not present, however, where the aid
is allocated on the basis of neutral, secular criteria that
neither favor nor disfavor religion, and is made available
to both religious and secular beneficiaries on a nondis-
criminatory basis. Under such circumstances, the aid
is less likely to have the effect of advancing religion.”
Ibid.

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The cases on which Agostini relied for this rule, and Agos-
tini itself, make clear the close relationship between this
rule, incentives, and private choice. For to say that a pro-
gram does not create an incentive to choose religious schools
is to say that the private choice is truly “independent,” Wit-
ters, 474 U. S., at 487. See Agostini, supra, at 232 (holding
that Title I did not create any impermissible incentive, be-
cause its services were “available to all children who meet
the Act’s eligibility requirements, no matter what their reli-
gious 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.
We hasten to add, what should be obvious from the rule
itself, that simply because an aid program offers private
schools, and thus religious schools, a benefit that they did
not previously receive does not mean that the program, by
reducing the cost of securing a religious education, creates,
under Agostini’s second criterion, an “incentive” for parents
to choose such an education for their children. For any aid
will have some such effect. See Allen, 392 U. S., at 244;
Everson, 330 U. S., at 17; see also Mueller, 463 U. S., at 399.
B
Respondents inexplicably make no effort to address Chap-
ter 2 under the Agostini test. Instead, dismissing Agostini
as factually distinguishable, they offer two rules that they
contend should govern our determination of whether Chap-
ter 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 impermissi-
ble. Second, they argue that provision to religious schools
of aid that is divertible to religious use is similarly impermis-

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sible.7 Respondents’ arguments are inconsistent with our
more recent case law, in particular Agostini and Zobrest, and
we therefore reject them.
1
Although some of our earlier cases, particularly Ball, 473
U. S., at 393–394, did emphasize the distinction between di-
rect and indirect aid, the purpose of this distinction was
7 Respondents also contend that Chapter 2 aid supplants, rather than
supplements, the core educational function of parochial schools and there-
fore has the effect of furthering religion. Our case law does provide some
indication that this distinction may be relevant to determining whether aid
results in governmental indoctrination, see Agostini, 521 U. S., at 228–229;
Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 12 (1993); but see
School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 396 (1985), but we
have never delineated the distinction’s contours or held that it is constitu-
tionally required.
Nor, to the extent that the supplement/supplant line is separable from
respondents’ direct/indirect and “no divertibility” arguments, do we need
to resolve the distinction’s constitutional status today, for, as we have al-
ready noted, Chapter 2 itself requires that aid may only be supplemental.
20 U. S. C. § 7371(b). See also post, at 867 (O’Connor, J., concurring in
judgment) (declining to decide whether supplement/supplant distinction is
a constitutional requirement); but see post, at 852 (explaining that com-
puters are “necessary” to “the educational process”). We presume that
whether a parish has complied with that statutory requirement would be,
at the very least, relevant to whether a violation of any constitutional
supplement/supplant requirement has occurred, yet we have no reason to
believe that there has been any material statutory violation. A statewide
review by the Louisiana SEA indicated that § 7371(b) receives nearly uni-
versal compliance. App. 112a. More importantly, neither the District
Court nor the Fifth Circuit even hinted that Jefferson Parish had violated
§ 7371(b), and respondents barely mention the statute in their brief to this
Court, offering only the slimmest evidence of any possible violation, see
id., at 63a. Respondents argue that any Chapter 2 aid that a school uses
to comply with state requirements (such as those relating to computers
and libraries) necessarily violates whatever supplement/supplant line may
exist in the Constitution, but our decision in Committee for Public Ed.
and Religious Liberty v. Regan, 444 U. S. 646 (1980), upholding reimburse-
ment to parochial schools of costs relating to state-mandated testing,
rejects any such blanket rule.

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merely to prevent “subsidization” of religion, see id., at 394.
As even the dissent all but admits, see post, at 889 (opin-
ion of Souter, J.), our more recent cases address this pur-
pose 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 810. 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 di-
rectness in the same breath with private choice, see, e. g.,
Agostini, 521 U. S., at 226; Witters, supra, at 487; Mueller,
supra, at 399—there is no reason why the Establishment
Clause requires such a form.
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 reli-
gious 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.”

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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).
As Agostini explained, the same reasoning was at work in
Zobrest, where we allowed the government-funded inter-
preter 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 inter-
preter 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 par-
ticipate directly in religious indoctrination.” See id., at 18
(opinion of Blackmun, J.). Finally, in Agostini itself, we
used the reasoning of Witters and Zobrest to conclude that
remedial classes provided under Title I of the ESEA by pub-
lic employees did not impermissibly finance religious indoc-
trination. 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 instruc-
tion was provided in the facilities of the private schools. Id.,
at 226–229.
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, demon-
strate the irrelevance of such formalism. In Meek, we justi-
fied our rejection of a program that loaned instructional ma-
terials and equipment by, among other things, pointing out
that the aid was loaned to the schools, and thus was “direct

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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 dif-
ference between the two programs: “[I]t would exalt form
over substance if this distinction were found to justify a re-
sult different from that in Meek.” 433 U. S., at 250. Wol-
man 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 pro-
grams that were indistinguishable but for the direct/indirect
distinction, shows that that distinction played no part in
Meek.
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.
Of course, we have seen “special Establishment Clause
dangers,” Rosenberger, 515 U. S., at 842, when money is

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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).8 But
8 The reason for such concern is not that the form per se is bad, but that
such a form creates special risks that governmental aid will have the effect
of advancing religion (or, even more, a purpose of doing so). An indirect
form of payment reduces these risks. See Mueller, 463 U. S., at 399 (neu-
tral tax deduction, because of its indirect form, allowed economic benefit
to religious schools only as result of private choice and thus did not sug-
gest state sanction of schools’ religious messages). It is arguable, how-
ever, at least after Witters v. Washington Dept. of Servs. for Blind, 474
U. S. 481 (1986), that the principles of neutrality and private choice would
be adequate to address those special risks, for it is hard to see the basis
for deciding Witters differently simply if the State had sent the tuition
check directly to whichever school Witters chose to attend. See Rosen-
berger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 848 (1995)
(O’Connor, J., concurring) (explaining Witters as reconciling principle of
neutrality with principle against public funding of religious messages by
relying on principle of private choice). Similarly, we doubt it would be
unconstitutional if, to modify Witters’ hypothetical, see 474 U. S., at 486–
487; supra, at 816, a government employer directly sent a portion of an
employee’s paycheck to a religious institution designated by that employee
pursuant to a neutral charitable program. We approved a similar ar-
rangement in Quick Bear, 210 U. S., at 77–82, and the Federal Government
appears to have long had such a program, see 1999 Catalog of Caring:
Combined Federal Campaign of the National Capital Area 44, 45, 59, 74–75
(listing numerous religious organizations, many of which engage in reli-
gious education or in proselytizing, to which federal employees may con-
tribute via payroll deductions); see generally Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc., 473 U. S. 788 (1985) (discussing Combined Fed-
eral Campaign). Finally, at least some of our prior cases striking down
direct payments involved serious concerns about whether the payments
were truly neutral. See, e. g., Committee for Public Ed. & Religious Lib-
erty v. Nyquist, 413 U. S. 756, 762–764, 768, 774–780 (1973) (striking down,
by 8-to-1 vote, program providing direct grants for maintenance and repair
of school facilities, where payments were allocated per-pupil but were only

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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.
2
Respondents also contend that the Establishment Clause
requires that aid to religious schools not be impermissibly
religious in nature or be divertible to religious use. We
agree with the first part of this argument but not the second.
Respondents’ “no divertibility” rule is inconsistent with our
more recent case law and is unworkable. So long as the gov-
ernmental 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 per-
missible manner, any use of that aid to indoctrinate cannot
be attributed to the government and is thus not of constitu-
tional concern. And, of course, the use to which the aid is
put does not affect the criteria governing the aid’s allocation
and thus does not create any impermissible incentive under
Agostini’s second criterion.
Our recent precedents, particularly Zobrest, require us to
reject respondents’ argument. For Zobrest gave no consid-
eration 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 (Black-
mun, J., dissenting) (“Until now, the Court never has author-
ized a public employee to participate directly in religious
indoctrination”); id., at 22 (“[G]overnment crosses the boun-
dary 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
available to private, nonprofit schools in low-income areas, “ ‘all or practi-
cally all’ ” of which were Catholic). Id., at 768.

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“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 indoctrina-
tion was synonymous with religious indoctrination by the
government or that such use of aid created any improper
incentives.
Similarly, had we, in Witters, been concerned with diverti-
bility or diversion, we would have unhesitatingly, perhaps
summarily, struck down the tuition-reimbursement program,
because it was certain that Witters sought to participate in it
to acquire an education in a religious career from a sectarian
institution. Diversion was guaranteed. Mueller took the
same view as Zobrest and Witters, for we did not in Mueller
require the State to show that the tax deductions were only
for the costs of education in secular subjects. We declined
to impose any such segregation requirement for either the
tuition-expense deductions or the deductions for items strik-
ingly similar to those at issue in Meek and Wolman, and
here. See Mueller, 463 U. S., at 391, n. 2; see also id., at 414
(Marshall, J., dissenting) (“The instructional materials which
are subsidized by the Minnesota tax deduction plainly may
be used to inculcate religious values and belief ”).
Justice O’Connor acknowledges that the Court in Zo-
brest and Witters approved programs that involved actual
diversion. See post, at 841 (opinion concurring in judg-
ment). The dissent likewise does not deny that Witters in-
volved actual diversion. See post, at 895–896, n. 16. The
dissent does claim that the aid in Zobrest “was not con-
sidered divertible,” post, at 895, n. 16, but the dissent in
Zobrest, which the author of today’s dissent joined, under-
stood the case otherwise. See supra, at 820. As that dis-
sent made clear, diversion is the use of government aid to
further a religious message. See Zobrest, supra, at 21–22
(Blackmun, J., dissenting); see also post, at 842, 857 (O’Con-
nor, J., concurring in judgment). By that definition, the

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government-provided interpreter in Zobrest was not only di-
vertible, but actually diverted.
Respondents appear to rely on Meek and Wolman to es-
tablish 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 in-
structional materials and equipment. The aid program in
Wolman explicitly barred divertible aid, 433 U. S., at 248–
249, so a concern for divertibility could not have been part
of our reason for finding that program invalid.
The issue is not divertibility of aid but rather whether the
aid itself has an impermissible content. Where the aid
would be suitable for use in a public school, it is also suitable
for use in any private school. Similarly, the prohibition
against the government providing impermissible content
resolves the Establishment Clause concerns that exist if aid
is actually diverted to religious uses.9 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 her-
self not inculcating any religious messages, no government
indoctrination took place.” 521 U. S., at 224 (second empha-
sis added). Agostini also acknowledged that what the dis-
senters 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
9 The dissent would find an establishment of religion if a government-
provided projector were used in a religious school to show a privately
purchased religious film, even though a public school that possessed the
same kind of projector would likely be constitutionally barred from refus-
ing to allow a student bible club to use that projector in a classroom to
show the very same film, where the classrooms and projectors were gener-
ally available to student groups. See Lamb’s Chapel v. Center Moriches
Union Free School Dist., 508 U. S. 384 (1993).

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fulfilled her assigned duties, see id., at 224–225, had “no in-
herent religious significance,” Allen, 392 U. S., at 244 (dis-
cussing 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 gov-
ernment computer or overhead projector does not itself in-
culcate a religious message, even when it is conveying one.
In Agostini itself, we approved the provision of public em-
ployees to teach secular remedial classes in private schools
partly because we concluded that there was no reason to sus-
pect that indoctrinating content would be part of such gov-
ernmental aid. See 521 U. S., at 223–225, 226–227, 234–235.
Relying on Zobrest, we refused to presume that the public
teachers would “ ‘inject religious content’ ” into their classes,
521 U. S., at 225, especially given certain safeguards that
existed; we also saw no evidence that they had done so,
id., at 226–227.
In Allen we similarly focused on content, emphasizing that
the textbooks were preapproved by public school authorities
and were not “unsuitable for use in the public schools be-
cause 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 in-
volved in ensuring the truly secular content of the text-
books” (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 mes-
sage.10 Post, at 855 (O’Connor, J., concurring in judgment)
10 Although we did, elsewhere in Board of Ed. of Central School Dist.
No. 1 v. Allen, 392 U. S. 236 (1968), observe, in response to a party’s argu-
ment, that there was no evidence that the schools were using secular text-

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824 MITCHELL v. HELMS
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(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 divert-
ible to religious teaching purposes” because they “had a
known and fixed secular content.” Post, at 893–894.
A concern for divertibility, as opposed to improper con-
tent, 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 respond-
ents’ 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 provid-
ing improper content. See Allen, supra, at 255–262 (Doug-
las, J., dissenting). Finally, any aid, with or without con-
tent, is “divertible” in the sense that it allows schools to
“divert” resources. Yet we have “ ‘not accepted the recur-
rent 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)).
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.

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It is perhaps conceivable that courts could take upon them-
selves 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.11
C
The dissent serves up a smorgasbord of 11 factors that,
depending on the facts of each case “in all its particularity,”
post, at 877, could be relevant to the constitutionality of
a school-aid program. And those 11 are a bare minimum.
We are reassured that there are likely more.12 See post, at
885, 888. 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 868, 872, 901, 902, 909, n. 27, with Agostini, 521 U. S.,
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 dis-
sent in Aguilar: “It is curious indeed to base our interpreta-
tion of the Constitution on speculation as to the likelihood
of a phenomenon which the parties may create merely by
11 Justice O’Connor agrees that the Constitution does not bar divert-
ible aid. See post, at 857 (opinion concurring in judgment). She also
finds actual diversion unproblematic if “true private-choice” directs the
aid. See post, at 842. And even when there is not such private choice,
she thinks that some amount of actual diversion is tolerable and that safe-
guards for preventing and detecting actual diversion may be minimal, as
we explain further, infra, at 832–834.
12 It is thus surprising for the dissent to accuse us of following a rule of
“breathtaking . . . manipulability.” Post, at 901, n. 19.

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prosecuting a lawsuit.” 473 U. S., at 429. While the dis-
sent delights in the perverse chaos that all these factors
produce, post, at 899; see also post, at 869, 885, the Constitu-
tion becomes unnecessarily clouded, and legislators, litigants,
and lower courts groan, as the history of this case amply
demonstrates. See Part I–B, supra.
One of the dissent’s factors deserves special mention:
whether a school that receives aid (or whose students receive
aid) is pervasively sectarian. The dissent is correct that
there was a period when this factor mattered, particularly if
the pervasively sectarian school was a primary or secondary
school. Post, at 885–887, 894, 898, 902–906. But that pe-
riod is one that the Court should regret, and it is thankfully
long past.
There are numerous reasons to formally dispense with this
factor. First, its relevance in our precedents is in sharp de-
cline. Although our case law has consistently mentioned it
even in recent years, we have not struck down an aid pro-
gram 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 reject-
ing the distinction between public and private employees
that was so prominent in Agostini. Compare post, at 858–
860, 863–864 (opinion concurring in judgment), with Agos-
tini, supra, at 223–225, 234–235. In Witters, a year after
Aguilar and Ball, we did not ask whether the Inland Empire
School of the Bible was pervasively sectarian. In Bowen, a
1988 decision, we refused to find facially invalid an aid pro-
gram (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 Dis-
trict Court to reaffirm its prior finding, we took pains to
emphasize the narrowness of the “pervasively sectarian” cat-
egory, see id., at 620–621 (opinion of the Court), and two

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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 perva-
sively sectarian schools were at issue,13 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 875, 885–886 (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).
Second, the religious nature of a recipient should not mat-
ter to the constitutional analysis, so long as the recipient
adequately furthers the government’s secular purpose. See
supra, at 810. If a program offers permissible aid to the re-
ligious (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 se-
riously, who think that their religion should affect the whole
13 Nor does Justice O’Connor do so today in her analysis of Jefferson
Parish’s Chapter 2 program.

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of their lives, or who make the mistake of being effective in
transmitting their views to children.
Third, the inquiry into the recipient’s religious views re-
quired by a focus on whether a school is pervasively sectar-
ian 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 reli-
gious beliefs. See Employment Div., Dept. of Human Re-
sources of Ore. v. Smith, 494 U. S. 872, 887 (1990) (collecting
cases). Yet that is just what this factor requires, as was
evident before the District Court. Although the dissent
welcomes such probing, see post, at 904–906, we find it pro-
foundly troubling. In addition, and related, the application
of the “pervasively sectarian” factor collides with our deci-
sions that have prohibited governments from discriminating
in the distribution of public benefits based upon religious sta-
tus or sincerity. See Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819 (1995); Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508 U. S. 384 (1993);
Widmar v. Vincent, 454 U. S. 263 (1981).
Finally, hostility to aid to pervasively sectarian schools has
a shameful pedigree that we do not hesitate to disavow. Cf.
Chicago v. Morales, 527 U. S. 41, 53–54, n. 20 (1999) (plurality
opinion). Although the dissent professes concern for “the
implied exclusion of the less favored,” post, at 868, the exclu-
sion of pervasively sectarian schools from government-aid
programs is just that, particularly given the history of such
exclusion. Opposition to aid to “sectarian” schools acquired
prominence in the 1870’s with Congress’ consideration (and
near passage) of the Blaine Amendment, which would have
amended the Constitution to bar any aid to sectarian insti-
tutions. Consideration of the amendment arose at a time
of pervasive hostility to the Catholic Church and to Catho-
lics 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).

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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 al-
most exclusively to Catholic parochial schools and which
even today’s dissent exemplifies chiefly by reference to such
schools. See post, at 886, 904–906 (opinion of Souter, J.).
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.
III
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 neu-
trally, allocates that aid based on the private choices of the
parents of schoolchildren, and does not provide aid that has
an impermissible content. Nor does Chapter 2 define its
recipients by reference to religion.
Taking the second criterion first, it is clear that Chapter 2
aid “is allocated on the basis of neutral, secular criteria that
neither favor nor disfavor religion, and is made available to
both religious and secular beneficiaries on a nondiscrimina-
tory basis.” Agostini, 521 U. S., at 231. Aid is allocated
based on enrollment: “Private schools receive Chapter 2 ma-
terials and equipment based on the per capita number of stu-
dents at each school,” Walker, 46 F. 3d, at 1464, and alloca-
tions to private schools must “be equal (consistent with the
number of children to be served) to expenditures for pro-
grams under this subchapter for children enrolled in the pub-
lic schools of the [LEA],” 20 U. S. C. § 7372(b). LEA’s must
provide Chapter 2 materials and equipment for the benefit

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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 second-
ary 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 dol-
lar 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.
Chapter 2 also satisfies the first Agostini criterion. The
program makes a broad array of schools eligible for aid with-
out regard to their religious affiliations or lack thereof.
§ 7372; see § 7353(a)(3). We therefore have no difficulty con-
cluding that 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 deci-
sions 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, de-
termine who receives Chapter 2 funds. The aid follows the
child.

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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 con-
stitutionally significant or meaningful. See id., at 228–229.
Nor, for reasons we have already explained, is it of constitu-
tional significance that the schools themselves, rather than
the students, are the bailees of the Chapter 2 aid. The ulti-
mate beneficiaries of Chapter 2 aid are the students who at-
tend the schools that receive that aid, and this is so regard-
less 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 888, 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 di-
rectly.” Walker, supra, at 1468, n. 16; see Allen, 392 U. S.,
at 244, n. 6.
Finally, Chapter 2 satisfies the first Agostini criterion be-
cause 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 impermissi-
ble for use in public schools. Respondents do not contend

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832 MITCHELL v. HELMS
Opinion of Thomas, J.
otherwise. Respondents also offer no evidence that reli-
gious schools have received software from the government
that has an impermissible content.
There is evidence that equipment has been, or at least eas-
ily could be, diverted for use in religious classes. See, e. g.,
App. 108a, 118a, 205a–207a. Justice O’Connor, however,
finds the safeguards against diversion adequate to prevent
and detect actual diversion. Post, at 861, 867 (opinion con-
curring 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 pur-
poses, (2) monitoring visits, and (3) the requirement that
equipment be labeled as belonging to Chapter 2.14 As to the
first, Justice O’Connor rightly places little reliance on it.
Post, at 862. As to the second, monitoring by SEA and
LEA officials is highly unlikely to prevent or catch diver-
sion. 15 As to the third, compliance with the labeling re-
14 Many of the other safeguards on which Justice O’Connor relies are
safeguards against improper content, not against diversion. See post, at
862, 863 (opinion concurring in judgment). Content is a different matter
from diversion and is much easier to police than is the mutable use of
materials and equipment (which is one reason that we find the safeguards
against improper content adequate, infra, at 834–835). Similarly, the
statutory provisions against supplanting nonfederal funds and against pay-
ing federal funds for religious worship or instruction, on which Justice
O’Connor also relies, post, at 861, are of little, if any, relevance to diver-
sion—the former because diversion need not supplant, and the latter be-
cause religious schools receive no funds, 20 U. S. C. § 7372(c)(1).
15 The SEA director acknowledged as much when he said that the SEA
enforces the rule against diversion “as best we can,” only visits “[o]ne or
two” of the private schools whenever it reviews an LEA, and reviews each
LEA only once every three years. App. 94a–95a. When asked whether
there was “any way” for SEA officials to know of diversion of a Chapter
2 computer, he responded, “No, there is no way.” Id., at 118a.
Monitoring by the Jefferson Parish LEA is similarly ineffective. The
LEA visits each private school only once a year, for less than an hour and a
half, and alerts the school to the visit in advance. Id., at 142a, 151a–152a,
182a–183a. The monitoring visits consist of reviewing records of equip-
ment use and of speaking to a single contact person. Self-reporting is the
sole source for the records of use. Id., at 140a. In the case of overhead

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Opinion of Thomas, J.
quirement is haphazard, see App. 113a, and, even if the re-
quirement were followed, we fail to see how a label prevents
diversion.16 In addition, we agree with the dissent that
there is evidence of actual diversion and that, were the safe-
guards anything other than anemic, there would almost
certainly be more such evidence. See post, at 903, 906–
910.17 In any event, for reasons we discussed in Part II–B–2,
projectors, the record appears to be just a sign-out sheet, and the LEA
official simply checks whether “the recordation of use is attempted.” Id.,
at 143a. The contact person is not a teacher; monitoring does not include
speaking with teachers; and the LEA makes no effort to inform teachers
of the restrictions on use of Chapter 2 equipment. Id., at 154a–155a.
The contact person also is usually not involved with the computers. Id.,
at 163a. Thus, the contact person is uninvolved in the actual use of the
divertible equipment and, therefore, in no position to know whether diver-
sion has occurred. See id., at 154a. Unsurprisingly, then, no contact per-
son has ever reported diversion. Id., at 147a. (In Agostini, by contrast,
monitors visited each classroom—unannounced—once a month, and the
teachers received specific training in what activities were permitted. 521
U. S., at 211–212, 234.) The head of the Jefferson Parish LEA admitted
that she had, and could have, no idea whether Chapter 2 equipment was
being diverted:
“Q: Would there be any way to ascertain, from this on-site visit, whether
the material or equipment purchased are used not only in accordance with
Chapter 2 plan submitted, but for other purposes, also?
“A: No.
“Q: Now, would it be your view that a church-affiliated school that would
teach the creation concept of the origin of man, that if they used [a Chap-
ter 2] overhead projector, that would be a violation . . . ?
“A: Yes.
“Q: Now, is there any way, do you ever ask that question of a church-
affiliated school, as to whether they use it for that purpose?
“A: No.” App. 144a, 150a–151a.
See id., at 139a, 145a, 146a–147a (similar).
16 In fact, a label, by associating the government with any religious use
of the equipment, exacerbates any Establishment Clause problem that
might exist when diversion occurs.
17 Justice O’Connor dismisses as de minimis the evidence of actual
diversion. Post, at 864–865 (opinion concurring in judgment). That may
be, but it is good to realize just what she considers de minimis. There is

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834 MITCHELL v. HELMS
Opinion of Thomas, J.
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.
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 pro-
grams of the SEA and the Jefferson Parish LEA are insuffi-
cient to prevent such errors. The evidence, however, estab-
lishes just the opposite, for the improper lending of library
books occurred—and was discovered and remedied—before
this litigation began almost 15 years ago.18 In other words,
the monitoring system worked. See post, at 866 (O’Con-
nor, 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
persuasive evidence that Chapter 2 audiovisual equipment was used in a
Catholic school’s theology department. “[M]uch” of the equipment at
issue “was purchased with Federal funds,” App. 205a, and those federal
funds were, from the 1982–1983 school year on, almost certainly Chapter
2 funds, see id., at 210a; cf. id., at 187a, 189a. The diversion occurred
over seven consecutive school years, id., at 206a–207a, and the use of the
equipment in the theology department was massive in each of those years,
outstripping in every year use in other departments such as science, math,
and foreign language, ibid. In addition, the dissent has documented likely
diversion of computers. Post, at 910.
18 The coordinator of the Jefferson Parish LEA ordered the books
recalled sometime in the summer or early fall of 1985, and it appears
that the schools had complied with the recall order by the second week
of December 1985. App. 162a, 80a–81a. Respondents filed suit in early
December. This self-correction is a key distinction between this instance
of providing improper content and the evidence of actual diversion. See
n. 17, supra.

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Opinion of Thomas, J.
amounted to “less than one percent of the total allocation
over all those years.” Id., at 132a–133a.
The District Court found that prescreening by the LEA
coordinator of requested library books was sufficient to pre-
vent 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 advanc-
ing religion.
IV
In short, Chapter 2 satisfies both the first and second pri-
mary criteria of Agostini. It therefore does not have the
effect of advancing religion. For the same reason, Chapter
2 also “cannot reasonably be viewed as an endorsement of
religion,” Agostini, 521 U. S., at 235. Accordingly, we hold
that Chapter 2 is not a law respecting an establishment of
religion. Jefferson Parish need not exclude religious schools
from its Chapter 2 program.19 To the extent that Meek and
Wolman conflict with this holding, we overrule them.
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
19 Indeed, as petitioners observe, to require exclusion of religious schools
from such a program would raise serious questions under the Free Exer-
cise Clause. See, e. g., Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U. S. 520, 532 (1993) (“At a minimum, the protections of the Free Exer-
cise Clause pertain if the law at issue discriminates against some or all
religious beliefs”); Everson, 330 U. S., at 16; cf. Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819 (1996) (holding that Free Speech
Clause bars exclusion of religious viewpoints from limited public forum).

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O’Connor, J., concurring in judgment
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 in-
structional material and equipment inescapably have the ef-
fect of direct advancement of religion.” Regan, 444 U. S., at
661–662 (internal quotation marks omitted). Then, in Muel-
ler, we conceded that the aid at issue in Meek and Wolman
did “resembl[e], in many respects,” the aid that we had up-
held 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 ma-
terials 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.
The judgment of the Fifth Circuit is reversed.
It is so ordered.
Justice O’Connor, with whom Justice Breyer joins,
concurring in the judgment.
In 1965, Congress passed the Elementary and Secondary
Education Act, 79 Stat. 27 (1965 Act). Under Title I, Con-
gress provided monetary grants to States to address the
needs of educationally deprived children of low-income fami-
lies. Under Title II, Congress provided further monetary

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837 Cite as: 530 U. S. 793 (2000)
O’Connor, J., concurring in judgment
grants to States for the acquisition of library resources, text-
books, 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 consti-
tutional inquiry respecting Title II presented here, and re-
quires the reversal of the Court of Appeals’ judgment that
the program is unconstitutional as applied in Jefferson Par-
ish, Louisiana. To the extent our decisions in Meek v. Pit-
tenger, 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 there-
fore concur in the judgment.
I
I write separately because, in my view, the plurality an-
nounces 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 indi-
rect 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 plural-
ity’s rule is troubling, two specific aspects of the opinion com-
pel 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. Sec-
ond, the plurality’s approval of actual diversion of govern-
ment aid to religious indoctrination is in tension with our

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838 MITCHELL v. HELMS
O’Connor, J., concurring in judgment
precedents and, in any event, unnecessary to decide the in-
stant case.
The clearest example of the plurality’s near-absolute po-
sition 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 con-
ducts 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 indoctrina-
tion, the government itself is not thought responsible for
any particular indoctrination. To put the point differ-
ently, if the government, seeking to further some legiti-
mate secular purpose, offers aid on the same terms,
without regard to religion, to all who adequately further
that purpose, then it is fair to say that any aid going to a
religious recipient only has the effect of furthering that
secular purpose.” Ante, at 809–810 (citation omitted).
I agree with Justice Souter that the plurality, by taking
such a stance, “appears to take evenhandedness neutrality
and in practical terms promote it to a single and sufficient
test for the establishment constitutionality of school aid.”
Post, at 900 (dissenting opinion).
I do not quarrel with the plurality’s recognition that neu-
trality 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 Foot-
hills School Dist., 509 U. S. 1, 10 (1993); Witters v. Washing-
ton Dept. of Servs. for Blind, 474 U. S. 481, 487–488 (1986);
id., at 493 (O’Connor, J., concurring in part and concurring

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O’Connor, J., concurring in judgment
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 ad-
vancing 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 re-
cent 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 distrib-
uted to school but to the child).
Justice Souter provides a comprehensive review of our
Establishment Clause cases on government aid to religious
institutions that is useful for its explanation of the various
ways in which we have used the term “neutrality” in our
decisions. See post, at 878–883. Even if we at one time
used the term “neutrality” in a descriptive sense to refer to
those aid programs characterized by the requisite equipoise
between support of religion and antagonism to religion, Jus-
tice 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 Establish-
ment Clause.” Rosenberger v. Rector and Visitors of Univ.
of Va., 515 U. S. 819, 846 (1995) (concurring opinion). Thus,

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840 MITCHELL v. HELMS
O’Connor, J., concurring in judgment
I agree with Justice Souter’s conclusion that our “most
recent use of ‘neutrality’ to refer to generality or evenhand-
edness 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 883–884.
I also disagree with the plurality’s conclusion that actual
diversion of government aid to religious indoctrination is
consistent with the Establishment Clause. See ante, at 820–
825. Although “[o]ur cases have permitted some govern-
ment funding of secular functions performed by sectarian or-
ganizations,” 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 math-
ematics, 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 en-
tirely 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 conclud-

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O’Connor, J., concurring in judgment
ing that the government-aid program in question was consti-
tutional 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 sup-
port their religious objectives. See id., at 621–622; id., at
624 (Kennedy, J., concurring) (“[T]he only purpose of fur-
ther inquiring whether any particular grantee institution is
pervasively sectarian is as a preliminary step to demonstrat-
ing 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 Estab-
lishment Clause.
The plurality bases its holding that actual diversion is per-
missible on Witters and Zobrest. Ante, at 820–821. 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. Ac-
cordingly, our approval of the aid in both cases relied to a
significant extent on the fact that “[a]ny aid . . . that ulti-
mately flows to religious institutions does so only as a result
of the genuinely independent and private choices of aid recip-
ients.” 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 gov-
ernment 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).

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Recognizing this distinction, the plurality nevertheless
finds Witters and Zobrest—to the extent those decisions
might permit the use of government aid for religious pur-
poses—relevant in any case involving a neutral, per-capita-
aid program. See ante, at 830–831. Like Justice Souter,
I do not believe that we should treat a per-capita-aid pro-
gram the same as the true private-choice programs consid-
ered in Witters and Zobrest. See post, at 902. First, when
the government provides aid directly to the student benefi-
ciary, that student can attend a religious school and yet re-
tain 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’Con-
nor, 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 reli-
gious 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.
Second, I believe the distinction between a per capita
school aid program and a true private-choice program is sig-
nificant for purposes of endorsement. See, e. g., Lynch v.
Donnelly, 465 U. S. 668, 692 (1984) (O’Connor, J., concur-
ring). In terms of public perception, a government program
of direct aid to religious schools based on the number of stu-
dents attending each school differs meaningfully from the
government distributing aid directly to individual students

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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 sup-
ported 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 enroll-
ment does not separate the government from the endorse-
ment 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 nu-
merous 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 attrib-
uted to the individuals who select the path of the aid.
Finally, the distinction between a per-capita-aid program
and a true private-choice program is important when consid-
ering 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

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to religious organizations (including churches) based on the
number of persons belonging to each organization. And, be-
cause actual diversion is permissible under the plurality’s
holding, the participating religious organizations (including
churches) could use that aid to support religious indoctrina-
tion. To be sure, the plurality does not actually hold that
its theory extends to direct money payments. See ante,
at 818–820. That omission, however, is of little comfort. In
its logic—as well as its specific advisory language, see ante,
at 819–820, n. 8—the plurality opinion foreshadows the ap-
proval of direct monetary subsidies to religious organiza-
tions, even when they use the money to advance their reli-
gious objectives.
Our school aid cases often pose difficult questions at the
intersection of the neutrality and no-aid principles and there-
fore 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 gen-
eral framework for approaching questions concerning neu-
tral school aid programs. Agostini also concerned an Es-
tablishment Clause challenge to a school aid program closely
related to the one at issue here. For these reasons, as well
as my disagreement with the plurality’s approach, I would
decide today’s case by applying the criteria set forth in
Agostini.
II
In Agostini, after reexamining our jurisprudence since
School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985),
we explained that the general principles used to determine
whether government aid violates the Establishment Clause
have remained largely unchanged. 521 U. S., at 222. Thus,

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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 spe-
cific 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 reli-
gion, and (3) whether the aid creates an excessive entangle-
ment between government and religion. Id., at 234. Fi-
nally, we noted that the same criteria could be reviewed to
determine whether a government-aid program constitutes an
endorsement of religion. Id., at 235.
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 Chap-
ter 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 “Chap-
ter 2.” For ease of reference, I will do the same.) Accord-
ingly, 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 ref-
erence to religion.
Taking the second inquiry first, it is clear that Chapter 2
does not define aid recipients by reference to religion. In
Agostini, we explained that scrutiny of the manner in which
a government-aid program identifies its recipients is impor-
tant because “the criteria might themselves have the effect
of advancing religion by creating a financial incentive to un-
dertake religious indoctrination.” 521 U. S., at 231. We
then clarified that this financial incentive is not present

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“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 pri-
vate, 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 “inno-
vative assistance programs” designed to improve student
achievement. § 7351(b). 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 en-
rolled 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.
Agostini next requires us to ask whether Chapter 2 “re-
sult[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 re-
sult in governmental indoctrination. Under that program,
public-school teachers provided Title I instruction to eligible

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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.
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 impermis-
sible 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 secu-
lar 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)).
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 in-
valid.” 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 avail-
able generally without regard to the religious or nonreli-
gious character of the recipient school. See Agostini, 521
U. S., at 225–226. With respect to the specific Title I pro-

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gram at issue, we noted several factors that precluded us
from finding an impermissible financing of religious indoctri-
nation: the aid was “provided to students at whatever school
they choose to attend,” the services were “by law supple-
mental 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 “at-
tempted 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
schoolwide 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 other-
wise neutral aid.” Id., at 229.
The Chapter 2 program at issue here bears the same hall-
marks 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

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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 nonideologi-
cal.” § 7372(a)(1). That restriction is reinforced by a fur-
ther 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 864–867.
III
Respondents contend that Agostini is distinguishable,
pointing to the distinct character of the aid program consid-
ered there. See Brief for Respondents 44–47. In Agostini,
federal funds paid for public-school teachers to provide secu-
lar 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 re-
ligious 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 deci-
sions, and not Agostini, are controlling. See, e. g., Brief for
Respondents 11, 22–25. Like respondents, Justice Souter
also relies on Meek and Wolman in finding the character of
the Chapter 2 aid constitutionally problematic. See post, at
893, 903.
At the time they were decided, Meek and Wolman created
an inexplicable rift within our Establishment Clause juris-
prudence concerning government aid to schools. Seven
years before our decision in Meek, we held in Allen that a
New York statute that authorized the lending of textbooks
to students attending religious schools did not violate the

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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 Establish-
ment Clause because textbooks are critical to the teaching
process, which in a religious school is employed to inculcate
religion. Id., at 245–248.
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 as-
sistance in support of the schools’ educational missions would
inevitably have the impermissible effect of advancing reli-
gion. For example, in Meek we explained:
“[I]t would simply ignore reality to attempt to separate
secular educational functions from the predominantly
religious role performed by many of Pennsylvania’s
church-related elementary and secondary schools and to
then characterize [the statute] as channeling aid to the
secular without providing direct aid to the sectarian.
Even though earmarked for secular purposes, ‘when it
flows to an institution in which religion is so pervasive
that a substantial portion of its functions are subsumed
in the religious mission,’ state aid has the impermissible
primary effect of advancing religion.” 421 U. S., at
365–366 (quoting Hunt v. McNair, 413 U. S. 734, 743
(1973)).

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Thus, we held that the aid program “necessarily results in
aid to the sectarian school enterprise as a whole,” and “ines-
capably 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).
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 reli-
gious 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). Ac-
cordingly, while the Court was willing to apply an irrebutta-
ble presumption that secular instructional materials and
equipment would be diverted to use for religious indoctrina-
tion, it required evidence that religious schools were divert-
ing secular textbooks to religious instruction.
The inconsistency between the two strands of the Court’s
jurisprudence did not go unnoticed, as Justices on both sides
of the Meek and Wolman decisions relied on the contradic-
tion to support their respective arguments. See, e. g., Meek,
421 U. S., at 384 (Brennan, J., concurring in part and dissent-
ing 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 dissent-
ing in part) (“The failure of the majority to justify the differ-
ing approaches to textbooks and instructional materials and

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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 mate-
rials 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).
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 lend-
ing 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 constitu-
tionality of a school aid program to turn on whether the aid
took the form of a computer rather than a book further re-
veals the inconsistency inherent in their logic.
Respondents insist that there is a reasoned basis under
the Establishment Clause for the distinction between text-
books 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 text-
books, are reasonably divertible to religious uses. For
example, no matter what secular criteria the government
employs in selecting a film projector to lend to a religious
school, school officials can always divert that projector to re-

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ligious 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 re-
spondents do. See post, at 885, 890–895.
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 con-
tent of textbooks is something that can be ascertained in
advance and cannot be diverted to sectarian uses.” Wol-
man, supra, at 251, n. 18. To the extent this simple descrip-
tion of Allen is even correct, it certainly does not constitute
an actual holding that the Establishment Clause prohibits
the government from lending any divertible aid to religious
schools. Rather, as explained above, the Wolman Court
based its holding invalidating the lending of instructional
materials and equipment to religious schools on the rationale
adopted in Meek—that the secular educational function of a
religious school is inseparable from its religious mission.
See Wolman, 433 U. S., at 250. Indeed, if anything, the Wol-
man footnote confirms the irrationality of the distinction be-
tween textbooks and instructional materials and equipment.
After the Wolman Court acknowledged that its holding with
respect to instructional materials and equipment was in ten-
sion with Allen, the Court explained the continuing validity
of Allen solely on the basis of stare decisis: “Board of Educa-
tion v. Allen has remained law, and we now follow as a mat-
ter of stare decisis the principle that restriction of textbooks
to those provided the public schools is sufficient to ensure

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that the books will not be used for religious purposes.”
Wolman, supra, 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.
Justice Souter’s attempt to defend the divertibility ra-
tionale as a viable distinction in our Establishment Clause
jurisprudence fares no better. For Justice Souter, secu-
lar school aid presents constitutional problems not only when
it is actually diverted to religious ends, but also when it sim-
ply has the capacity for, or presents the possibility of, such
diversion. See, e. g., post, at 893 (discussing “susceptibility
[of secular supplies] to the service of religious ends”). Thus,
he explains the Allen, Meek, and Wolman decisions as fol-
lows: “While the textbooks had a known and fixed secular
content not readily divertible to religious teaching purposes,
the adaptable materials did not.” Post, at 893–894. This
view would have come as a surprise to the Court in Meek,
which expressly conceded that “the material and equipment
that are the subjects of the loan . . . are ‘self-polic[ing], in
that starting as secular, nonideological and neutral, they will
not change in use.’ ” 421 U. S., at 365 (quoting Meek v. Pit-
tenger, 374 F. Supp. 639, 660 (ED Pa. 1974)). Indeed, given
the nature of the instructional materials considered in Meek
and Wolman, it is difficult to comprehend how a divertibility
rationale could have explained the decisions. The statutes
at issue in those cases authorized the lending of “periodicals,
photographs, maps, charts, sound recordings, [and] films,”
Meek, supra, at 355, and “maps and globes,” Wolman, supra,
at 249. There is no plausible basis for saying that these
items are somehow more divertible than a textbook given
that each of the above items, like a textbook, has a fixed and
ascertainable content.
In any event, even if Meek and Wolman had articulated
the divertibility rationale urged by respondents and Justice

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Souter, I would still reject it for a more fundamental rea-
son. Stated simply, the theory does not provide a logical
distinction between the lending of textbooks and the lending
of instructional materials and equipment. An educator can
use virtually any instructional tool, whether it has ascertain-
able content or not, to teach a religious message. 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.” Ante, at 823. In
today’s case, for example, we are asked to draw a constitu-
tional distinction between lending a textbook and lending
a library book. Justice Souter’s try at justifying that
distinction only demonstrates the absurdity on which such
a difference must rest. He states that “[a]lthough library
books, like textbooks, have fixed content, religious teachers
can assign secular library books for religious critique.”
Post, at 903. Regardless of whether that explanation is
even correct (for a student surely could be given a religious
assignment in connection with a textbook too), it is hardly a
distinction on which constitutional law should turn. More-
over, 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. See Brief
for Avi Chai Foundation as Amicus Curiae 18.
To the extent Justice Souter believes several related
Establishment Clause decisions require application of a di-
vertibility rule in the context of this case, I respectfully dis-
agree. Justice Souter is correct to note our continued
recognition of the special dangers associated with direct
money grants to religious institutions. See post, at 890–893.
It does not follow, however, that we should treat as constitu-

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tionally suspect any form of secular aid that might conceiv-
ably be diverted to a religious use. As the cases Justice
Souter cites demonstrate, our concern with direct monetary
aid is based on more than just diversion. In fact, the most
important reason for according special treatment to direct
money grants is that this form of aid falls precariously close
to the original object of the Establishment Clause’s prohibi-
tion. See, e. g., Walz v. Tax Comm’n of City of New York,
397 U. S. 664, 668 (1970) (“[F]or the men who wrote the Reli-
gion Clauses of the First Amendment the ‘establishment’ of
a religion connoted sponsorship, financial support, and active
involvement of the sovereign in religious activity”). State-
ments concerning the constitutionally suspect status of di-
rect cash aid, accordingly, provide no justification for apply-
ing an absolute rule against divertibility when the aid
consists instead of instructional materials and equipment.
Justice Souter also relies on our decisions in Wolman
(to the extent it concerned field-trip transportation for non-
public schools), Levitt v. Committee for Public Ed. & Reli-
gious Liberty, 413 U. S. 472 (1973), Tilton v. Richardson, 403
U. S. 672 (1971), and Bowen. See post, at 893–895. None
requires application of a divertibility rule in the context of
this case. Wolman and Levitt were both based on the same
presumption that government aid will be used in the inculca-
tion of religion that we have chosen not to apply to textbook
lending programs and that we have more generally rejected
in recent decisions. Compare Wolman, 433 U. S., at 254;
Levitt, supra, at 480, with supra, at 851–852; infra, at 859.
In Tilton, we considered a federal statute that authorized
grants to universities for the construction of buildings and
facilities to be used exclusively for secular educational pur-
poses. See 403 U. S., at 674–675. We held the statute un-
constitutional only to the extent that a university’s “obliga-
tion not to use the facility for sectarian instruction or
religious worship . . . appear[ed] to expire at the end of 20
years.” Id., at 683. To hold a statute unconstitutional be-
cause it lacks a secular content restriction is quite different

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from resting on a divertibility rationale. Indeed, the fact
that we held the statute constitutional in all other respects
is more probative on the divertibility question because it
demonstrates our willingness to presume that the university
would abide by the secular content restriction during the
years the requirement was in effect. In any event, Chapter
2 contains both a secular content restriction, 20 U. S. C.
§ 7372(a)(1), and a prohibition on the use of aid for religious
worship or instruction, § 8897, so Tilton provides no basis
for upholding respondents’ challenge. Finally, our decision
in Bowen proves only that actual diversion, as opposed to
mere divertibility, is constitutionally impermissible. See,
e. g., 487 U. S., at 621. Had we believed that the divertibility
of secular aid was sufficient to call the aid program into ques-
tion, there would have been no need for the remand we or-
dered and no basis for the reversal.
IV
Because divertibility fails to explain the distinction our
cases have drawn between textbooks and instructional mate-
rials and equipment, there remains the question of which of
the two irreconcilable strands of our Establishment Clause
jurisprudence we should now follow. Between the two,
I would adhere to the rule that we have applied in the con-
text of textbook lending programs: To establish a First
Amendment violation, plaintiffs must prove that the aid in
question actually is, or has been, used for religious purposes.
See Meek, 421 U. S., at 361–362; Allen, 392 U. S., at 248.
Just as we held in Agostini that our more recent cases had
undermined the assumptions underlying Ball and Aguilar,
I would now hold that Agostini and the cases on which it
relied have undermined the assumptions underlying Meek
and Wolman. To be sure, Agostini only addressed the spe-
cific presumption that public-school employees teaching on
the premises of religious schools would inevitably inculcate
religion. Nevertheless, I believe that our definitive rejec-
tion of that presumption also stood for—or at least strongly

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858 MITCHELL v. HELMS
O’Connor, J., concurring in judgment
pointed to—the broader proposition that such presumptions
of religious indoctrination are normally inappropriate when
evaluating neutral school aid programs under the Establish-
ment Clause. In Agostini, we repeatedly emphasized that
it would be inappropriate to presume inculcation of religion;
rather, plaintiffs raising an Establishment Clause challenge
must present evidence that the government aid in question
has resulted in religious indoctrination. See 521 U. S., at
223–224, 226–227. We specifically relied on our statement
in Zobrest that a presumption of indoctrination, because it
constitutes an absolute bar to the aid in question regardless
of the religious school’s ability to separate that aid from its
religious mission, constitutes a “flat rule, smacking of anti-
quated notions of ‘taint,’ [that] would indeed exalt form over
substance.” 509 U. S., at 13. That reasoning applies with
equal force to the presumption in Meek and Ball concerning
instructional materials and equipment. As we explained in
Agostini, “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.
Respondents contend that Agostini should be limited to
its facts, and point specifically to the following statement
from my separate opinion in Ball as the basis for retaining
a presumption of religious inculcation for instructional mate-
rials and equipment:
“When full-time parochial school teachers receive public
funds to teach secular courses to their parochial school
students under parochial school supervision, I agree that
the program has the perceived and actual effect of ad-
vancing the religious aims of the church-related schools.
This is particularly the case where, as here, religion per-
vades the curriculum and the teachers are accustomed
to bring religion to play in everything they teach.” 473
U. S., at 399–400 (concurring in judgment in part and
dissenting in part).

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Respondents note that in Agostini we did not overrule that
portion of Ball holding the Community Education program
unconstitutional. Under that program, the government paid
religious school teachers to operate as part-time public
teachers at their religious schools by teaching secular classes
at the conclusion of the regular schoolday. Ball, 473 U. S.,
at 376–377. Relying on both the majority opinion and my
separate opinion in Ball, respondents therefore contend that
we must presume that religious school teachers will incul-
cate religion in their students. If that is so, they argue, we
must also presume that religious school teachers will be un-
able to follow secular restrictions on the use of instructional
materials and equipment lent to their schools by the govern-
ment. See Brief for Respondents 26–29.
I disagree, however, that the latter proposition follows
from the former. First, as our holding in Allen and its reaf-
firmance in Meek and Wolman demonstrate, the Court’s will-
ingness to assume that religious school instructors will incul-
cate religion has not caused us to presume also that such
instructors will be unable to follow secular restrictions on
the use of textbooks. I would similarly reject any such pre-
sumption regarding the use of instructional materials and
equipment. When a religious school receives textbooks or
instructional materials and equipment lent with secular re-
strictions, the school’s teachers need not refrain from teach-
ing religion altogether. Rather, the instructors need only
ensure that any such religious teaching is done without the
instructional aids provided by the government. We have al-
ways been willing to assume that religious school instructors
can abide by such restrictions when the aid consists of text-
books, which Justice Brennan described as “surely the heart
tools of . . . education.” Meek, supra, at 384 (concurring in
part and dissenting in part). The same assumption should
extend to instructional materials and equipment.
For the same reason, my position in Ball is distinguishable.
There, the government paid for religious school instructors

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860 MITCHELL v. HELMS
O’Connor, J., concurring in judgment
to teach classes supplemental to those offered during the
normal schoolday. In that context, I was willing to presume
that the religious school teacher who works throughout the
day to advance the school’s religious mission would also do
so, at least to some extent, during the supplemental classes
provided at the end of the day. Because the government
financed the entirety of such classes, any religious indoctri-
nation taking place therein would be directly attributable to
the government. In the instant case, because the Chapter
2 aid concerns only teaching tools that must remain supple-
mentary, the aid constitutes only a portion of the teacher’s
educational efforts during any single class. In this context,
I find it easier to believe that a religious school teacher can
abide by the secular restrictions placed on the government
assistance. I therefore would not presume that the Chapter
2 aid will advance, or be perceived to advance, the school’s
religious mission.
V
Respondents do not rest, however, on their divertibility
argument alone. Rather, they also contend that the evi-
dence respecting the actual administration of Chapter 2 in
Jefferson Parish demonstrates that the program violated the
Establishment Clause. First, respondents claim that the
program’s safeguards are insufficient to uncover instances
of actual diversion. Brief for Respondents 37, 42–43, 45–
47. Second, they contend that the record shows that some
religious schools in Jefferson Parish may have used their
Chapter 2 aid to support religious education (i. e., that
they diverted the aid). Id., at 36–37. Third, respondents
highlight violations of Chapter 2’s secular content restric-
tions. Id., at 39–41. And, finally, they note isolated exam-
ples of potential violations of Chapter 2’s supplantation re-
striction. Id., at 43–44. Based on the evidence underlying
the first and second claims, the plurality appears to contend
that the Chapter 2 program can be upheld only if actual
diversion of government aid to the advancement of religion

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O’Connor, J., concurring in judgment
is permissible under the Establishment Clause. See ante,
at 832–834. Relying on the evidence underlying all but the
last of the above claims, Justice Souter concludes that the
Chapter 2 program, as applied in Jefferson Parish, violated
the Establishment Clause. See post, at 902–910. I dis-
agree with both the plurality and Justice Souter. 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 con-
stitutional inquiry.
The plurality and Justice Souter direct the primary
thrust of their arguments at the alleged inadequacy of the
program’s safeguards. Respondents, the plurality, and Jus-
tice Souter all appear to proceed from the premise that, so
long as actual diversion presents a constitutional problem,
the government must have a failsafe mechanism capable of
detecting any instance of diversion. We rejected that very
assumption, however, in Agostini. There, we explained that
because we had “abandoned the assumption that properly
instructed public employees will fail to discharge their duties
faithfully, we must also discard the assumption that perva-
sive monitoring of Title I teachers is required.” 521 U. S.,
at 234 (emphasis in original). Because I believe that the
Court should abandon the presumption adopted in Meek and
Wolman respecting the use of instructional materials and
equipment by religious school teachers, I see no constitu-
tional need for pervasive monitoring under the Chapter 2
program.
The safeguards employed by the program are constitution-
ally sufficient. At the federal level, the statute limits aid to
“secular, neutral, and nonideological services, materials, and
equipment,” 20 U. S. C. § 7372(a)(1); requires that the aid only
supplement and not supplant funds from non-Federal
sources, § 7371(b); and prohibits “any payment . . . for reli-
gious worship or instruction,” § 8897. At the state level, the
Louisiana Department of Education (the relevant SEA for

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862 MITCHELL v. HELMS
O’Connor, J., concurring in judgment
Louisiana) requires all nonpublic schools to submit signed
assurances that they will use Chapter 2 aid only to supple-
ment and not to supplant non-Federal funds, and that the
instructional materials and equipment “will only be used for
secular, neutral and nonideological purposes.” App. 260a–
261a; see also id., at 120a. Although there is some dispute
concerning the mandatory nature of these assurances, Dan
Lewis, the director of Louisiana’s Chapter 2 program, testi-
fied that all of the State’s nonpublic schools had thus far been
willing to sign the assurances, and that the State retained
the power to cut off aid to any school that breached an assur-
ance. Id., at 122a–123a. The Louisiana SEA also conducts
monitoring visits to each of the State’s LEA’s—and one or
two of the nonpublic schools covered by the relevant LEA—
once every three years. Id., at 95a–96a. In addition to
other tasks performed on such visits, SEA representatives
conduct a random review of a school’s library books for reli-
gious content. Id., at 99a.
At the local level, the Jefferson Parish Public School Sys-
tem (JPPSS) requires nonpublic schools seeking Chapter 2
aid to submit applications, complete with specific project
plans, for approval. Id., at 127a; id., at 194a–203a (sample
application). The JPPSS then conducts annual monitoring
visits to each of the nonpublic schools receiving Chapter 2
aid. Id., at 141a–142a. On each visit, a JPPSS representa-
tive meets with a contact person from the nonpublic school
and reviews with that person the school’s project plan and
the manner in which the school has used the Chapter 2 mate-
rials and equipment to support its plan. Id., at 142a, 149a.
The JPPSS representative also reminds the contact person
of the prohibition on the use of Chapter 2 aid for religious
purposes, id., at 149a, and conducts a random sample of the
school’s Chapter 2 materials and equipment to ensure that
they are appropriately labeled and that the school has main-
tained a record of their usage, id., at 142a–144a. (Although
the plurality and Justice Souter claim that compliance

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with the labeling requirement was haphazard, both cite only
a statewide monitoring report that includes no specific find-
ings with respect to Jefferson Parish. Ante, at 832–833 (cit-
ing App. 113a); post, at 906 (same).) Finally, the JPPSS
representative randomly selects library books the nonpublic
school has acquired through Chapter 2 and reviews their
content to ensure that they comply with the program’s sec-
ular content restriction. App. 210a. If the monitoring does
not satisfy the JPPSS representative, another visit is sched-
uled. Id., at 151a–152a. Apart from conducting monitoring
visits, the JPPSS reviews Chapter 2 requests filed by partici-
pating nonpublic schools. As part of this process, a JPPSS
employee examines the titles of requested library books and
rejects any book whose title reveals (or suggests) a religious
subject matter. Id., at 135a, 137a–138a. As the above de-
scription 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. See post, at 906 (quot-
ing App. 111a).
Respondents, the plurality, and Justice Souter all fault
the above-described safeguards primarily because they de-
pend on the good faith of participating religious school offi-
cials. For example, both the plurality and Justice Souter
repeatedly cite testimony by state and parish officials ac-
knowledging that the safeguards depend to a certain extent
on the religious schools’ self-reporting and that, therefore,
there is no way for the State or Jefferson Parish to say de-
finitively that no Chapter 2 aid is diverted to religious pur-
poses. See, e. g., ante, at 832–833, n. 15; post, at 906–907.
These admissions, however, do not prove that the safeguards
are inadequate. To find that actual diversion will flourish,
one must presume bad faith on the part of the religious
school officials who report to the JPPSS monitors regarding
the use of Chapter 2 aid. I disagree with the plurality and
Justice Souter on this point and believe that it is entirely

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864 MITCHELL v. HELMS
O’Connor, J., concurring in judgment
proper to presume that these school officials will act in good
faith. That presumption is especially appropriate in this
case, since there is no proof that religious school officials
have breached their schools’ assurances or failed to tell gov-
ernment officials the truth. Cf. Tilton, 403 U. S., at 679
(“A possibility always exists, of course, that the legitimate
objectives of any law or legislative program may be sub-
verted by conscious design or lax enforcement. . . . But judi-
cial concern about these possibilities cannot, standing alone,
warrant striking down a statute as unconstitutional”).
The evidence proffered by respondents, and relied on by
the plurality and Justice Souter, concerning actual diver-
sion of Chapter 2 aid in Jefferson Parish is de minimis. Re-
spondents first cite the following statement from a Jefferson
Parish religious school teacher: “Audio-visual materials are a
very necessary and enjoyable tool used when teaching young
children. As a second grade teacher I use them in all sub-
jects and see a very positive result.” App. 108a. Respond-
ents’ only other evidence consists of a chart concerning one
Jefferson Parish religious school, which shows that the
school’s theology department was a significant user of audio-
visual equipment. See id., at 206a–208a. Although an ac-
companying letter indicates that much of the school’s equip-
ment was purchased with federal funds, id., at 205a, the
chart does not provide a breakdown identifying specific
Chapter 2 usage. Indeed, unless we are to relieve respond-
ents of their evidentiary burden and presume a violation
of Chapter 2, we should assume that the school used its
own equipment in the theology department and the Chapter
2 equipment elsewhere. The more basic point, however,
is that neither piece of evidence demonstrates that Chapter
2 aid actually was diverted to religious education. At most,
it proves the possibility that, out of the more than 40 nonpub-
lic schools in Jefferson Parish participating in Chapter 2, aid
may have been diverted in one school’s second-grade class
and another school’s theology department.

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O’Connor, J., concurring in judgment
The plurality’s insistence that this evidence is somehow
substantial flatly contradicts its willingness to disregard sim-
ilarly insignificant evidence of violations of Chapter 2’s sup-
plantation and secular content restrictions. See ante, at
815, n. 7 (finding no “material statutory violation” of the sup-
plantation restriction); ante, at 835 (characterizing violations
of secular content restriction as “scattered” and “de mini-
mis”). As I shall explain below, I believe the evidence on
all three points is equally insignificant and, therefore, should
be treated the same.
Justice Souter also relies on testimony by one religious
school principal indicating that a computer lent to her school
under Chapter 2 was connected through a network to non-
Chapter 2 computers. See post, at 910 (citing App. 77a).
The principal testified that the Chapter 2 computer would
take over the network if another non-Chapter 2 computer
were to break down. Ibid. To the extent the principal’s
testimony even proves that Chapter 2 funds were diverted
to the school’s religious mission, the evidence is hardly
compelling.
Justice Souter contends that any evidence of actual di-
version requires the Court to declare the Chapter 2 program
unconstitutional as applied in Jefferson Parish. Post, at 909,
n. 27. For support, he quotes my concurring opinion in
Bowen and the statement therein that “any use of public
funds to promote religious doctrines violates the Establish-
ment Clause.” 487 U. S., at 623 (emphasis in original).
That principle of course remains good law, but the next sen-
tence in my opinion is more relevant to the case at hand:
“[E]xtensive violations—if they can be proved in this case—
will be highly relevant in shaping an appropriate remedy
that ends such abuses.” Ibid. (emphasis in original). I
know of no case in which we have declared an entire aid
program unconstitutional on Establishment Clause grounds
solely because of violations on the minuscule scale of those
at issue here. Yet that is precisely the remedy respondents

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866 MITCHELL v. HELMS
O’Connor, J., concurring in judgment
requested from the District Court and that they were
granted by the Court of Appeals. See App. 51a; Helms v.
Picard, 151 F. 3d 347, 377 (CA5 1998), amended, 165 F. 3d
311, 312 (CA5 1999). While extensive violations might re-
quire a remedy along the lines asked for by respondents, no
such evidence has been presented here. To the contrary, the
presence of so few examples over a period of at least 4 years
(15 years ago) tends to show not that the “no-diversion” rules
have failed, but that they have worked. Accordingly, I see
no reason to affirm the judgment below and thereby declare
a properly functioning aid program unconstitutional.
Respondents’ next evidentiary argument concerns an ad-
mitted violation of Chapter 2’s secular content restriction.
Over three years, Jefferson Parish religious schools ordered
approximately 191 religious library books through Chapter
2. App. 129a–133a. Dan Lewis, the director of Louisiana’s
Chapter 2 program, testified that he discovered some of the
religious books while performing a random check during a
state monitoring visit to a Jefferson Parish religious school.
Id., at 99a–100a. The discovery prompted the State to no-
tify the JPPSS, which then reexamined book requests dating
back to 1982, discovered the 191 books in question, and re-
called them. Id., at 130a–133a. This series of events dem-
onstrates not that the Chapter 2 safeguards are inadequate,
but rather that the program’s monitoring system succeeded.
Even if I were instead willing to find this incident to be evi-
dence of a likelihood of future violations, the evidence is in-
significant. The 191 books constituted less than one percent
of the total allocation of Chapter 2 aid in Jefferson Parish
during the relevant years. Id., at 132a. Justice Souter
understandably concedes that the book incident constitutes
“only limited evidence.” Post, at 909. I agree with the
plurality that, like the above evidence of actual diversion,
the borrowing of the religious library books constitutes only
de minimis evidence. See ante, at 835.

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Souter, J., dissenting
Respondents’ last evidentiary challenge concerns the ef-
fectiveness of Chapter 2’s supplantation restriction in Jef-
ferson Parish. Although Justice Souter does not rest his
decision on this point, he does “not[e] the likelihood that un-
constitutional supplantation occurred as well.” Post, at 910,
n. 28. I disagree. The evidence cited by respondents and
Justice Souter is too ambiguous to rest any sound conclu-
sions on and, at best, shows some scattered violations of the
statutory supplantation restriction that are too insignificant
in aggregate to affect the constitutional inquiry. Indeed,
even Justice Souter concedes in this respect that “[t]he
record is sparse.” Post, at 911, n. 28.
* * *
Given the important similarities between the Chapter 2
program here and the Title I program at issue in Agostini,
respondents’ Establishment Clause challenge must fail. As
in Agostini, the Chapter 2 aid is allocated on the basis of
neutral, secular criteria; the aid must be supplementary and
cannot supplant non-Federal funds; no Chapter 2 funds ever
reach the coffers of religious schools; the aid must be secular;
any evidence of actual diversion is de minimis; and the pro-
gram includes adequate safeguards. Regardless of whether
these factors are constitutional requirements, they are surely
sufficient to find that the program at issue here does not
have the impermissible effect of advancing religion. For the
same reasons, “this carefully constrained program also can-
not reasonably be viewed as an endorsement of religion.”
Agostini, 521 U. S., at 235. Accordingly, I concur in the
judgment.
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

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868 MITCHELL v. HELMS
Souter, J., dissenting
held to prohibit not only the institution of an official church,
but any government act favoring religion, a particular reli-
gion, or for that matter irreligion. Thus, it bars the use of
public funds for religious aid.
The establishment prohibition of government religious
funding serves more than one end. It is meant to guarantee
the right of individual conscience against compulsion, to pro-
tect the integrity of religion against the corrosion of secular
support, and to preserve the unity of political society against
the implied exclusion of the less favored and the antagonism
of controversy over public support for religious causes.
These objectives are always in some jeopardy since the
substantive principle of no aid to religion is not the only limi-
tation on government action toward religion. Because the
First Amendment also bars any prohibition of individual free
exercise of religion, and because religious organizations can-
not be isolated from the basic government functions that cre-
ate the civil environment, it is as much necessary as it is
difficult to draw lines between forbidden aid and lawful bene-
fit. For more than 50 years, this Court has been attempting
to draw these lines. Owing to the variety of factual circum-
stances 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 nonethe-
less 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 circum-
stances. 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,

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Souter, J., dissenting
its divertibility to religious nurture, its potential for reduc-
ing 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, and the question in
every case addresses the substantive principle of no aid:
what reasons are there to characterize this benefit as aid
to the sectarian school in discharging its religious mission?
Particular factual circumstances control, and the answer is a
matter of judgment.
In what follows I will flesh out this summary, for this case
comes at a time when our judgment requires perspective on
how the Establishment Clause has come to be understood
and applied. It is not just that a majority today mistakes
the significance of facts that have led to conclusions of uncon-
stitutionality in earlier cases, though I believe the Court
commits error in failing to recognize the divertibility of
funds to the service of religious objectives. What is more
important is the view revealed in the plurality opinion, which
espouses a new conception of neutrality as a practically suf-
ficient test of constitutionality that would, if adopted by the
Court, eliminate enquiry into a law’s effects. The plurality
position breaks fundamentally with Establishment Clause
principle, and with the methodology painstakingly worked
out in support of it. I mean to revisit that principle and
describe the methodology at some length, lest there be any
question about the rupture that the plurality view would
cause. From that new view of the law, and from a majority’s
mistaken application of the old, I respectfully dissent.
I
The prohibition that “Congress shall make no law respect-
ing an establishment of religion,” U. S. Const., Amdt. 1,
eludes elegant conceptualization simply because the prohibi-
tion applies to such distinct phenomena as state churches
and aid to religious schools, and as applied to school aid has

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870 MITCHELL v. HELMS
Souter, J., dissenting
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 establish-
ment prohibition, but must respect the succeeding Clause of
the First Amendment guaranteeing religion’s free exercise.
Ibid. It is no wonder that the complementary constitutional
provisions and the inexhaustably various circumstances of
their applicability have defied any simple test and have in-
stead produced a combination of general rules often in ten-
sion 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.
A
At least three concerns have been expressed since the
founding and run throughout our First Amendment jurispru-
dence. 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,1 and this means that the
government can compel no aid to fund it. Madison put it
simply: “[T]he same authority which can force a citizen to
1 Jefferson’s Virginia Bill for Establishing Religious Freedom provided
“[t]hat no man shall be compelled to frequent or support any religious
worship, place, or ministry whatsoever . . . .” Jefferson, A Bill for Estab-
lishing Religious Freedom, in 5 The Founder’s Constitution 84 (P. Kur-
land & R. Lerner eds. 1987); see also Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U. S. 819, 870–872 (1995) (Souter, J., dissenting). We
have “previously recognized that the provisions of the First Amendment,
in the drafting and adoption of which Madison and Jefferson played such
leading roles, had the same objective and were intended to provide the
same protection against governmental intrusion on religious liberty as
the Virginia statute.” Everson v. Board of Ed. of Ewing, 330 U. S. 1,
13 (1947).

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contribute three pence only of his property for the support
of any one establishment, may force him to conform to any
other establishment.” Memorial and Remonstrance ¶ 3, re-
printed in Everson v. Board of Ed. of Ewing, 330 U. S. 1, 64,
65–66 (1947). Any tax to establish religion is antithetical to
the command “that the minds of men always be wholly free.”
Id., at 12 (discussing Madison’s Memorial and Remonstrance);
id., at 13 (noting Jefferson’s belief that “compel[ling] a man
to furnish contributions of money for the propagation of opin-
ions which he disbelieves, is sinful and tyrannical; . . . even
the forcing him to support this or that teacher of his own
religious persuasion, is depriving him of the comfortable
liberty of giving his contributions to the particular pastor,
whose morals he would make his pattern” (internal quota-
tion marks omitted)); see also Rosenberger v. Rector and Vis-
itors of Univ. of Va., 515 U. S. 819, 868–874 (1995) (Souter,
J., dissenting).
Second, government aid corrupts religion. See Engel
v. Vitale, 370 U. S. 421, 431 (1962) (“[The Establishment
Clause’s] first and most immediate purpose rested on the be-
lief that a union of government and religion tends to destroy
government and to degrade religion”); Everson, supra, at 53
(Rutledge, J., dissenting). Madison argued that establish-
ment of religion weakened the beliefs of adherents so fa-
vored, strengthened their opponents, and generated “pride
and indolence in the Clergy; ignorance and servility in the
laity; [and] in both, superstition, bigotry and persecution.”
Memorial and Remonstrance ¶ 7, quoted in Everson, 330
U. S., at 67. “[E]xperience witnesseth that ecclesiastical es-
tablishments, instead of maintaining the purity and efficacy
of Religion, have had a contrary operation.” Ibid. In a
variant of Madison’s concern, we have repeatedly noted that
a government’s favor to a particular religion or sect threat-
ens to taint it with “corrosive secularism.” Lee v. Weisman,
505 U. S. 577, 608 (1992) (internal quotation marks and cita-
tions omitted); see also Illinois ex rel. McCollum v. Board

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872 MITCHELL v. HELMS
Souter, J., dissenting
of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203,
228 (1948).
“[G]overnment and religion have discrete interests
which are mutually best served when each avoids too
close a proximity to the other. It is not only the nonbe-
liever who fears the injection of sectarian doctrines and
controversies into the civil polity, but in as high degree
it is the devout believer who fears the secularization of
a creed which becomes too deeply involved with and de-
pendent upon the government.” School Dist. of Abing-
ton Township v. Schempp, 374 U. S. 203, 259 (1963)
(Brennan, J., concurring).
See also Rosenberger, supra, at 890– 891 (Souter, J.,
dissenting).
Third, government establishment of religion is inextrica-
bly linked with conflict. Everson, supra, at 8–11 (relating
colonists’ understanding of recent history of religious perse-
cution in countries with established religion); Engel, supra,
at 429 (discussing struggle among religions for government
approval); Lemon v. Kurtzman, 403 U. S. 602, 623 (1971). In
our own history, the turmoil thus produced has led to a rejec-
tion of the idea that government should subsidize religious
education, id., at 645–649 (opinion of Brennan, J.) (discussing
history of rejection of support for religious schools); McCol-
lum, supra, at 214–217 (opinion of Frankfurter, J.), a position
that illustrates the Court’s understanding that any implicit
endorsement of religion is unconstitutional, see County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 592–594 (1989).2
2 The plurality mistakes my recognition of this fundamental concern.
Ante, at 825–826. The Court may well have moved away from consider-
ing the political divisiveness threatened by particular instances of aid as
a practical criterion for applying the Establishment Clause case by case,
but we have never questioned its importance as a motivating concern be-
hind the Establishment Clause, nor could we change history to find that
sectarian conflict did not influence the Framers who wrote it.

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B
These concerns are reflected in the Court’s classic summa-
tion delivered in Everson v. Board of Education, supra, its
first opinion directly addressing standards governing aid to
religious schools: 3
“The ‘establishment of religion’ clause of the First
Amendment means at least this: Neither a state nor the
Federal Government can set up a church. Neither can
pass laws which aid one religion, aid all religions, or pre-
fer one religion over another. Neither can force nor in-
fluence a person to go to or to remain away from church
against his will or force him to profess a belief or disbe-
lief in any religion. No person can be punished for en-
tertaining or professing religious beliefs or disbeliefs,
for church attendance or non-attendance. No tax in any
amount, large or small, can be levied to support any reli-
gious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or
practice religion. Neither a state nor the Federal Gov-
ernment can, openly or secretly, participate in the affairs
of any religious organizations or groups and vice versa.
In the words of Jefferson, the clause against establish-
ment of religion by law was intended to erect ‘a wall of
separation between church and State.’ ” 330 U. S., at
15–16 (quoting Reynolds v. United States, 98 U. S. 145,
164 (1879)).
The most directly pertinent doctrinal statements here are
these: no government “can pass laws which aid one religion
3 The Court upheld payments by Indian tribes to apparently Roman
Catholic schools in Quick Bear v. Leupp, 210 U. S. 50 (1908), suggesting in
dicta that there was no Establishment Clause problem, but it did not
squarely face the question. Nor did the Court address a First Amend-
ment challenge to a state program providing textbooks to children in
Cochran v. Louisiana Bd. of Ed., 281 U. S. 370 (1930); it simply concluded
that the program had an adequate public purpose. The Court first
squarely faced the issue in Everson.

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[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.” 330
U. S., at 16. Thus, the principle of “no aid,” with which no
one in Everson disagreed.4
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] com-
mands that [government] cannot hamper its citizens in the
free exercise of their own religion,” ibid., with the conse-
quence that government must “be a neutral in its relations
with groups of religious believers and non-believers,” id., at
18. Since withholding some public benefits from religious
groups could be said to “hamper” religious exercise in-
directly, and extending other benefits said to aid it, an
argument-proof formulation of the no-aid principle was im-
possible, and the Court wisely chose not to attempt any such
thing. Instead it gave definitive examples of public benefits
provided pervasively throughout society that would be of
some value to organized religion but not in a way or to a
degree that could sensibly be described as giving it aid or
violating the neutrality requirement: there was no Establish-
ment Clause concern with “such general government serv-
ices as ordinary police and fire protection, connections for
sewage disposal, public highways and sidewalks.” Id., at
17–18. These “benefits of public welfare legislation,” id., at
16, extended in modern times to virtually every member of
the population and valuable to every person and association,
were the paradigms of advantages that religious organiza-
4 While Everson’s dissenters parted company with the majority over the
specific question of school buses, the Court stood as one behind the princi-
ple of no aid for religious teaching. 330 U. S., at 15–16; id., at 25–26 (Jack-
son, J., dissenting); id., at 28–29, 31–32 (Rutledge, J., dissenting).

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tions could enjoy consistently with the prohibition against
aid, and that governments could extend without deserting
their required position of neutrality.
But paradigms are not perfect fits very often, and govern-
ment spending resists easy classification as between univer-
sal general service or subsidy of favoritism. The 5-to-4 divi-
sion of the Everson Court turned on the inevitable question
whether reimbursing all parents for the cost of transporting
their children to school was close enough to police protection
to tolerate its indirect benefit in some degree to religious
schools, with the majority in Everson thinking the reim-
bursement statute fell on the lawful side of the line. Al-
though the state scheme reimbursed parents for transport-
ing children to sectarian schools, among others, it gave “no
money to the schools. It [did] not support them. Its legis-
lation [did] no more than provide a general program to help
parents get their children, regardless of their religion, safely
and expeditiously to and from accredited schools.” Id., at
18. The dissenters countered with factual analyses showing
the limitation of the law’s benefits in fact to private school
pupils who were Roman Catholics, id., at 20 (Jackson, J., dis-
senting), and indicating the inseparability of transporting pu-
pils to school from support for the religious instruction that
was the school’s raison d’eˆtre, id., at 45–46 (Rutledge, J.,
dissenting).
Everson is usefully understood in the light of a successor
case two decades later, Board of Ed. of Central School Dist.
No. 1 v. Allen, 392 U. S. 236 (1968), in which the challenged
government practice was lending textbooks to pupils of
schools both public and private, including religious ones (as
to which there was no evidence that they had previously sup-
plied books to their classes and some evidence that they had
not, id., at 244, n. 6). By the time of Allen, the problem of
classifying the state benefit, as between aid to religion and
general public service consistent with government neutral-

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ity, had led to the formulation of a “test” that required secu-
lar, primary intent and effect as necessary conditions of any
permissible scheme. Id., at 243. Again the Court split, up-
holding the state law in issue, but with Everson’s majority
author, Justice Black, now in dissent. What is remarkable
about Allen today, however, is not so much its division as its
methodology, for the consistency in the way the Justices
went about deciding the case transcended their different con-
clusions. Neither side rested on any facile application of the
“test” or any simplistic reliance on the generality or even-
handedness of the state law. Disagreement concentrated on
the true intent inferrable behind the law, the feasibility of
distinguishing in fact between religious and secular teaching
in church schools, and the reality or sham of lending books
to pupils instead of supplying books to schools. The major-
ity, to be sure, cited the provision for books to all school-
children, regardless of religion, 392 U. S., at 243, just as the
Everson majority had spoken of the transportation reim-
bursement as going to all, 330 U. S., at 16, in each case for
the sake of analogy to the provision of police and fire serv-
ices.5 But the stress was on the practical significance of the
actual benefits received by the schools. As Everson had
rested on the understanding that no money and no support
went to the school, id., at 18, Allen emphasized that the sav-
ings to parents were devoid of any measurable effect in
teaching religion, 392 U. S., at 243–244. Justice Harlan, con-
curring, summed up the approach with his observations that
the required government “[n]eutrality is . . . a coat of many
colors,” and quoted Justice Goldberg’s conclusion, that there
was “ ‘no simple and clear measure’ . . . by which this or any
[religious school aid] case may readily be decided,” id., at 249
(quoting Schempp, 374 U. S., at 306).
5 Indeed, two of the dissenters in Allen agreed with the majority on this
method of analysis, asking whether the books at issue were similar enough
to fire and police protection. See 392 U. S., at 252 (Black, J., dissenting);
id., at 272 (Fortas, J., dissenting).

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After Everson and Allen, the state of the law applying the
Establishment Clause to public expenditures producing some
benefit to religious schools was this:
1. Government aid to religion is forbidden, and tax reve-
nue may not be used to support a religious school or
religious teaching.
2. Government provision of such paradigms of univer-
sally general welfare benefits as police and fire protec-
tion does not count as aid to religion.
3. Whether a law’s benefit is sufficiently close to univer-
sally general welfare paradigms to be classified with
them, as distinct from religious aid, is a function of the
purpose and effect of the challenged law in all its partic-
ularity. The judgment is not reducible to the applica-
tion of any formula. Evenhandedness of distribution as
between religious and secular beneficiaries is a relevant
factor, but not a sufficiency test of constitutionality.
There is no rule of religious equal protection to the ef-
fect that any expenditure for the benefit of religious
school students is necessarily constitutional so long as
public school pupils are favored on ostensibly identical
terms.
4. Government must maintain neutrality as to religion,
“neutrality” being a conclusory label for the required
position of government as neither aiding religion nor
impeding religious exercise by believers. “Neutrality”
was not the name of any test to identify permissible ac-
tion, and in particular, was not synonymous with even-
handedness in conferring benefit on the secular as well
as the religious.
Today, the substantive principle of no aid to religious mis-
sion remains the governing understanding of the Establish-
ment Clause as applied to public benefits inuring to religious
schools. The governing opinions on the subject in the 35
years since Allen have never challenged this principle. The

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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 ef-
fects 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 re-
peated attempts to isolate considerations relevant in classify-
ing particular benefits as between those that do not discern-
ibly support or threaten support of a school’s religious
mission, and those that cross or threaten to cross the line
into support for religion.
II
A
The most deceptively familiar of those considerations is
“neutrality,” the presence or absence of which, in some sense,
we have addressed from the moment of Everson itself. I
say “some sense,” for we have used the term in at least three
ways in our cases, and an understanding of the term’s evolu-
tion will help to explain the concept as it is understood today,
as well as the limits of its significance in Establishment
Clause analysis. “Neutrality” has been employed as a term
to describe the requisite state of government equipoise be-
tween the forbidden encouragement and discouragement of
religion; to characterize a benefit or aid as secular; and to
indicate evenhandedness in distributing it.
As already mentioned, the Court first referred to neutral-
ity in Everson, simply stating that government is required
“to be a neutral” among religions and between religion and
nonreligion. 330 U. S., at 18. Although “neutral” may have
carried a hint of inaction when we indicated that the First
Amendment “does not require the state to be [the] adver-
sary” of religious believers, ibid., or to cut off general gov-
ernment services from religious organizations, Everson pro-
vided no explicit definition of the term or further indication
of what the government was required to do or not do to be

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“neutral” toward religion. In practical terms, “neutral” in
Everson was simply a term for government in its required
median position between aiding and handicapping religion.
The second major case on aid to religious schools, Allen, used
“neutrality” to describe an adequate state of balance be-
tween government as ally and as adversary to religion, see
392 U. S., at 242 (discussing line between “state neutrality to
religion and state support of religion”). The term was not
further defined, and a few subsequent school cases used
“neutrality” simply to designate the required relationship to
religion, without explaining how to attain it. See, e. g., Til-
ton v. Richardson, 403 U. S. 672, 677 (1971) (describing cases
that “see[k] to define the boundaries of the neutral area be-
tween [the Religion Clauses] within which the legislature
may legitimately act”); Roemer v. Board of Public Works of
Md., 426 U. S. 736, 747 (1976) (plurality opinion of Blackmun,
J.) (“Neutrality is what is required. The State must confine
itself to secular objectives, and neither advance nor impede
religious activity. Of course, that principle is more easily
stated than applied”); see also Committee for Public Ed. &
Religious Liberty v. Nyquist, 413 U. S. 756, 782 (1973) (de-
scribing “neutral posture” toward religion); Roemer, supra,
at 745–746 (opinion of Blackmun, J.) (“The Court has enforced
a scrupulous neutrality by the State, as among religions, and
also as between religious and other activities”); cf. Wolman
v. Walter, 433 U. S. 229, 254 (1977) (quoting Lemon and not-
ing difficulty of religious teachers’ remaining “ ‘religiously
neutral’ ”).
The Court began to employ “neutrality” in a sense dif-
ferent from equipoise, however, as it explicated the distinc-
tion between “religious” and “secular” benefits to religious
schools, the latter being in some circumstances permissible.
See infra, at 884–899 (discussing considerations). Even
though both Everson and Allen had anticipated some such
distinction, neither case had used the term “neutral” in this
way. In Everson, Justice Black indicated that providing

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police, fire, and similar government services to religious in-
stitutions was permissible, in part because they were “so
separate and so indisputably marked off from the religious
function.” 330 U. S., at 18. 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 in-
struction as “in fact [to be] instrumental in the teaching of
religion,” id., at 248. Such was the Court’s premise in
Lemon for shifting the use of the word “neutral” from label-
ing the required position of the government to describing a
benefit that was nonreligious. We spoke of “[o]ur decisions
from Everson to Allen [as] permitt[ing] the States to provide
church-related schools with secular, neutral, or nonideologi-
cal services, facilities, or materials,” 403 U. S., at 616, and
thereafter, we regularly used “neutral” in this second sense
of “secular” or “nonreligious.” See, e. g., Tilton, supra, at
687–688 (characterizing subsidized teachers in Lemon as “not
necessarily religiously neutral,” but buildings as “religiously
neutral”); Meek v. Pittenger, 421 U. S. 349, 365–366 (1975)
(describing instructional materials as “ ‘secular, nonideologi-
cal and neutral’ ” and “wholly neutral”); id., at 372 (describ-
ing auxiliary services as “religiously neutral”); Roemer,
supra, at 751 (opinion of Blackmun, J.) (describing Tilton’s
approved buildings as “neutral or nonideological in nature”);
426 U. S., at 754 (describing Meek’s speech and hearing serv-
ices as “neutral and nonideological”); Zobrest v. Catalina
Foothills School Dist., 509 U. S. 1, 10 (1993) (discussing
translator as “neutral service”); Agostini v. Felton, 521 U. S.
203, 232 (1997) (discussing need to assess whether nature of
aid was “neutral and nonideological”); cf. Levitt v. Committee
for Public Ed. & Religious Liberty, 413 U. S. 472, 478 (1973)
(noting that District Court approved testing cost reimburse-
ment as payment for services that were “ ‘secular, neutral,
or nonideological’ ” in character, citing Lemon, 403 U. S., at

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616); Wolman, supra, at 242 (quoting Lemon, supra, at 616
(describing permitted services aid as “secular, neutral, or
nonideological”)).
The shift from equipoise to secular was not, however, our
last redefinition, for the Court again transformed the sense
of “neutrality” in the 1980’s. Reexamining and reinterpret-
ing Everson and Allen, we began to use the word “neutral”
to mean “evenhanded,” in the sense of allocating aid on some
common basis to religious and secular recipients. Again,
neither Everson nor Allen explicitly used “neutral” in this
manner, but just as the label for equipoise had lent itself to
referring to the secular characteristic of what a government
might provide, it was readily adaptable to referring to the
generality of government services, as in Everson’s para-
digms, to which permissible benefits were compared.
The increased attention to a notion of evenhanded distri-
bution was evident in Nyquist, where the Court distin-
guished the program under consideration from the govern-
ment services approved in Allen and Everson, in part
because “the class of beneficiaries [in Everson and Allen]
included all schoolchildren, those in public as well as those
in private schools.” 413 U. S., at 782, n. 38. Nyquist then
reserved the question whether “some form of public
assistance . . . made available generally without regard to
the sectarian-nonsectarian, or public-nonpublic nature of the
institution benefitted” would be permissible. Id., at 783,
n. 38 (citations omitted). Subsequent cases continued the
focus on the “generality” of the approved government serv-
ices as an important characteristic. Meek, for example,
characterized Everson and Allen as approving “a general
program” to pay bus fares and to lend school books, respec-
tively, 421 U. S., at 360; id., at 360, n. 8 (approving two similar
“general program[s]” in New York and Pennsylvania), and
Wolman upheld diagnostic services described as “ ‘general
welfare services for children,’ ” 433 U. S., at 243 (quoting
Meek, supra, at 371, n. 21).

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Souter, J., dissenting
Justice Blackmun, writing in Roemer, first called such a
“general” or evenhanded program “neutral,” in speaking of
“facial neutrality” as a relevant consideration in determin-
ing whether there was an Establishment Clause violation.
“[R]eligious institutions need not be quarantined from public
benefits that are neutrally available to all.” 426 U. S., at
746–747; see also id., at 746 (discussing buses in Everson and
school books in Allen as examples of “neutrally available”
aid). In Mueller v. Allen, 463 U. S. 388 (1983), the Court
adopted the redefinition of neutrality as evenhandedness, cit-
ing Nyquist, 413 U. S., at 782, n. 38, and alluding to our dis-
cussion of equal access in Widmar v. Vincent, 454 U. S. 263
(1981). The Court upheld a system of tax deductions for
sectarian educational expenses, in part because such a “fa-
cially neutral law,” 463 U. S., at 401, made the deduction
available for “all parents, including those whose children
attend public schools and those whose children attend non-
sectarian private schools or sectarian private schools,” id.,
at 397. Subsequent cases carried the point forward. See,
e. g., Witters v. Washington Dept. of Servs. for Blind, 474
U. S. 481, 487 (1986) (quoting Nyquist and characterizing pro-
gram as making aid “available generally”); Zobrest, supra,
at 8–9 (discussing “government programs that neutrally pro-
vide benefits to a broad class of citizens defined without
reference to religion” and citing Mueller and Witters); Agos-
tini, supra, at 231 (discussing aid allocated on the basis of
“neutral, secular criteria that neither favor nor disfavor
religion, . . . made available to both religious and secular
beneficiaries on a nondiscriminatory basis”); see also Rosen-
berger, 515 U. S., at 839 (“[T]he guarantee of neutrality is
respected, not offended, when the government, following
neutral criteria and evenhanded policies, extends benefits
to recipients whose ideologies and viewpoints, including
religious ones, are broad and diverse”).
In sum, “neutrality” originally entered this field of juris-
prudence as a conclusory term, a label for the required rela-

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tionship between the government and religion as a state of
equipoise between government as ally and government as
adversary. Reexamining Everson’s paradigm cases to de-
rive a prescriptive guideline, we first determined that “neu-
tral” aid was secular, nonideological, or unrelated to religious
education. Our subsequent reexamination of Everson and
Allen, beginning in Nyquist and culminating in Mueller and
most recently in Agostini, recast neutrality as a concept of
“evenhandedness.”
There is, of course, good reason for considering the gener-
ality of aid and the evenhandedness of its distribution in
making close calls between benefits that in purpose or effect
support a school’s religious mission and those that do not.
This is just what Everson did. Even when the disputed
practice falls short of Everson’s paradigms, the breadth of
evenhanded distribution is one pointer toward the law’s pur-
pose, 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 ben-
efit can reasonably be seen to aid religion in fact; we do not
regard the postal system as aiding religion, even though pa-
rochial schools get mail. Given the legitimacy of consider-
ing evenhandedness, then, there is no reason to avoid the
term “neutrality” to refer to it. But one crucial point must
be borne in mind.
In the days when “neutral” was used in Everson’s sense
of equipoise, neutrality was tantamount to constitutionality;
the term was conclusory, but when it applied it meant that
the government’s position was constitutional under the Es-
tablishment 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 character-
ized should be seen as aiding a sectarian school’s religious

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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, its administration, its recipi-
ents, or its potential that have been emphasized over the
years as indicators of just how religious the intent and effect
of a given aid scheme really is. See, e. g., Tilton, 403 U. S.,
at 677–678 (opinion of Burger, C. J.) (acknowledging “no sin-
gle constitutional caliper”); Meek, 421 U. S., at 358–359 (not-
ing considerations as guidelines only and discussing them as
a matter of degree); School Dist. of Grand Rapids v. Ball,
473 U. S. 373, 383 (1985) (quoting Meek), overruled in part
by Agostini, 521 U. S., at 203; Board of Ed. of Kiryas Joel
Village School Dist. v. Grumet, 512 U. S. 687, 720 (1994)
(opinion of O’Connor, J.) (“Experience proves that the Es-
tablishment Clause, like the Free Speech Clause, cannot eas-
ily be reduced to a single test”); Rosenberger, 515 U. S., at
847–849 (O’Connor, J., concurring) (discussing need for line-
drawing); id., at 852 (noting lack of a single “Grand Unified
Theory” for Establishment Clause and citing Kiryas Joel);
cf. Agostini, supra, at 232–233 (examining a variety of fac-
tors). Thus, the basic principle of establishment scrutiny of
aid remains the principle as stated in Everson, that there
may be no public aid to religion or support for the religious
mission of any institution.
B
The insufficiency of evenhandedness neutrality as a stand-
alone criterion of constitutional intent or effect has been
clear from the beginning of our interpretative efforts, for an
obvious reason. Evenhandedness in distributing a benefit
approaches the equivalence of constitutionality in this area
only when the term refers to such universality of distribution
that it makes no sense to think of the benefit as going to any
discrete group. Conversely, when evenhandedness refers to
distribution to limited groups within society, like groups of
schools or schoolchildren, it does make sense to regard the
benefit as aid to the recipients. See, e. g., Everson, 330 U. S.,

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at 16 (discussing aid that approaches the “verge” of forbidden
territory); Lemon, 403 U. S., at 612 (“[W]e can only dimly
perceive the lines of demarcation in this extraordinarily sen-
sitive area of constitutional law”); Nyquist, 413 U. S., at 760–
761 (noting the “most perplexing questions” presented in this
area and acknowledging “ ‘entangl[ing] precedents’ ”); Muel-
ler, 463 U. S., at 393 (quoting Lemon); Witters, 474 U. S., at
485 (quoting Lemon).
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 govern-
ment funding as massive as expenditures made for the bene-
fit of their public school counterparts, and religious missions
would thrive on public money. This is why the consider-
ation of less than universal neutrality has never been recog-
nized as dispositive and has always been teamed with atten-
tion to other facts bearing on the substantive prohibition of
support for a school’s religious objective.
At least three main lines of enquiry addressed particu-
larly to school aid have emerged to complement evenhanded-
ness neutrality. First, we have noted that two types of aid
recipients heighten Establishment Clause concern: perva-
sively religious schools and primary and secondary religious
schools. Second, we have identified two important charac-
teristics of the method of distributing aid: directness or indi-
rectness of distribution and distribution by genuinely inde-
pendent choice. Third, we have found relevance in at least
five characteristics of the aid itself: its religious content; its
cash form; its divertibility or actually diversion to religious
support; its supplantation of traditional items of religious
school expense; and its substantiality.
1
Two types of school aid recipients have raised special con-
cern. First, we have recognized the fact that the overriding
religious mission of certain schools, those sometimes called

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“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 per-
meates 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 instruc-
tion. Parochial schools, in large measure, do not accept the
assumption that secular subjects should be unrelated to reli-
gious teaching”); see also Bowen v. Kendrick, 487 U. S. 589,
621–622 (1988) (discussing pervasively sectarian private
schools). Based on record evidence and long experience, we
have concluded that religious teaching in such schools is at
the core of the instructors’ individual and personal obliga-
tions, cf. Canon 803, § 2, Text & Commentary 568 (“It is nec-
essary that the formation and education given in a Catholic
school be based upon the principles of Catholic doctrine;
teachers are to be outstanding for their correct doctrine and
integrity of life”), and that individual religious teachers will
teach religiously.7 Lemon, 403 U. S., at 615–620; id., at 635–
6 In fact, religious education in Roman Catholic schools is defined as part
of required religious practice; aiding it is thus akin to aiding a church
service. See 1983 Code of Canon Law, Canon 798, reprinted in The Code
of Canon Law: A Text and Commentary 566 (1985) (hereinafter Text &
Commentary) (directing parents to entrust children to Roman Catholic
schools or otherwise provide for Roman Catholic education); Canon 800,
§ 2, Text & Commentary 567 (requiring the faithful to support establish-
ment and maintenance of Roman Catholic schools); Canons 802, 804,
Text & Commentary 567, 568 (requiring diocesan bishop to establish and
regulate schools “imparting an education imbued with the Christian
spirit”).
7 Although the Court no longer assumes that public school teachers as-
signed to religious schools for limited purposes will teach religiously, see
Agostini v. Felton, 521 U. S. 203, 223–228 (1997), we have never abandoned
the presumption that religious teachers will teach just that way. Lemon
v. Kurtzman, 403 U. S. 602, 615–620 (1971); id., at 635–641 (Douglas, J.,
concurring); Levitt v. Committee for Public Ed. & Religious Liberty, 413
U. S. 472, 480 (1973); Meek v. Pittenger, 421 U. S. 349, 369–371 (1975); Wol-

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Souter, J., dissenting
641 (Douglas, J., concurring); Levitt, 413 U. S., at 480; Meek,
421 U. S., at 369–371; Wolman, 433 U. S., at 249–250 (dis-
cussing nonseverability of religious and secular education);
Ball, 473 U. S., at 399–400 (O’Connor, J., concurring in judg-
ment in part and dissenting in part), overruled in part by
Agostini, 521 U. S., at 236. 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 in-
evitably and impermissibly support religious indoctrination.
Zobrest, 509 U. S., at 12 (discussing Meek and Ball).
Second, we have expressed special concern about aid to
primary and secondary religious schools. Tilton, 403 U. S.,
at 685–686. On the one hand, we have understood how the
youth of the students in such schools makes them highly sus-
ceptible to religious indoctrination. Lemon, supra, at 616
(“This process of inculcating religious doctrine is, of course,
enhanced by the impressionable age of the pupils, in primary
schools particularly”). On the other, we have recognized
that the religious element in the education offered in most
sectarian primary and secondary schools is far more inter-
twined with the secular than in university teaching, where
the natural and academic skepticism of most older students
may separate the two, see Tilton, supra, at 686–689; Roe-
mer, 426 U. S., at 750. Thus, government benefits accruing
to these pervasively religious primary and secondary schools
raise special dangers of diversion into support for the reli-
gious indoctrination of children and the involvement of gov-
ernment in religious training and practice.
man v. Walter, 433 U. S. 229, 249–250 (1977); School Dist. of Grand Rapids
v. Ball, 473 U. S. 373, 399–400 (1985) (O’Connor, J., concurring in judg-
ment in part and dissenting in part), overruled in part by Agostini, supra,
at 236. Cf. 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”).

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2
We have also evaluated the portent of support to an orga-
nization’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 be-
tween government schemes with individual beneficiaries and
those whose beneficiaries in the first instance might be reli-
gious schools. Everson, supra, at 18 (bus fare supports par-
ents and not schools); Allen, 392 U. S., 243–244, and n. 6
(textbooks go to benefit children and parents, not schools);
Lemon, supra, at 621 (invalidating direct aid to schools); Lev-
itt, supra, at 480, 482 (invalidating direct testing aid to
schools); Witters, 474 U. S., at 487–488 (evaluating whether
aid was a direct subsidy to schools). Direct aid obviously
raises greater risks, although recent cases have discounted
this risk factor, looking to other features of the distribution
mechanism. Agostini, supra, at 225–226.8
8 In Agostini, the Court indicated that “we have departed from the rule
relied on in Ball that all government aid that directly assists the educa-
tional function of religious schools is invalid,” 521 U. S., at 225, and cited
Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), and
Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993). However,
Agostini did not rely on this dictum, instead clearly stating that “[w]hile
it is true that individual students may not directly apply for Title I serv-
ices, it does not follow from this premise that those services are distrib-
uted ‘directly to the religious schools.’ In fact, they are not. No Title I
funds ever reach the coffers of religious schools, and Title I services may
not be provided to religious schools on a schoolwide basis.” 521 U. S., at
228–229 (citations omitted). Until today, this Court has never permitted
aid to go directly to schools on a schoolwide basis.
The plurality misreads our precedent in suggesting that we have aban-
doned directness of distribution as a relevant consideration. See ante, at
815–818. In Wolman, we stated that nominally describing aid as to stu-
dents would not bar a court from finding that it actually provided a sub-
sidy to a school, 433 U. S., at 250, but we did not establish that a program
giving “direct” aid to schools was therefore permissible. In Witters, we
made the focus of Wolman clear, continuing to examine aid to determine

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Second, we have distinguished between indirect aid that
reaches religious schools only incidentally as a result of nu-
merous individual choices and aid that is in reality directed
to religious schools by the government or in practical terms
selected by religious schools themselves. Mueller, 463
U. S., at 399; Witters, supra, at 488; Zobrest, supra, at 10.
In these cases, we have declared the constitutionality of pro-
grams providing aid directly to parents or students as tax
deductions or scholarship money, where such aid may pay for
education at some sectarian institutions, Mueller, supra, at
399; Witters, 474 U. S., at 488, but only as the result of “genu-
inely independent and private choices of aid recipients,” id.,
at 487. We distinguished this path of aid from the route
in Ball and Wolman, where the opinions indicated that
“[w]here . . . no meaningful distinction can be made between
aid to the student and aid to the school, the concept of a loan
to individuals is a transparent fiction.” 474 U. S., at 487, n. 4
(citations and internal quotation marks omitted).9
3
In addition to the character of the school to which the ben-
efit accrues, and its path from government to school, a num-
ber of features of the aid itself have figured in the classifica-
if it was a “direct subsidy” to a school, 474 U. S., at 487, and distinguishing
the aid at issue from impermissible aid in Ball and Wolman precisely
because the designation of the student as recipient in those cases was only
nominal. 474 U. S., at 487, n. 4. 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. Zobrest, supra, at 11–13; Mueller v. Allen, 463 U. S. 388, 399
(1983); Agostini, supra, at 226.
9 We have also permitted the government to supply students with
public-employee translators, Zobrest, supra, at 10, and public-employee
special education teachers, Agostini, supra, at 226, 228, who directly pro-
vided them with government services in whatever schools those specific
students attended, public or nonpublic. I have already noted Agostini’s
limitations. See n. 8, supra.

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tions 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, Everson, 330
U. S., at 16; Walz, 397 U. S., at 668; cf. Lemon, 403 U. S., at
617 (discussing variable ideological and religious character of
religious teachers compared to fixed content of books). In
cases where we have permitted aid, we have regularly char-
acterized it as “neutral” in the sense (noted supra, at 879–
881) of being without religious content. See, e. g., Tilton,
403 U. S., at 688 (characterizing buildings as “religiously neu-
tral”); Zobrest, 509 U. S., at 10 (describing translator as “neu-
tral service”); Agostini, 521 U. S., at 232 (discussing need to
assess whether nature of aid was “neutral and nonideologi-
cal”). See also ante, at 820 (plurality opinion) (barring aid
with religious content).10
Second, we have long held government aid invalid when
circumstances would allow its diversion to religious educa-
tion. 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 under-
stood the Constitution to bar outright money grants of aid
to religion.11 See Everson, 330 U. S., at 16 (“[The State]
10 I agree with the plurality that the Establishment Clause absolutely
prohibits the government from providing aid with clear religious content
to religious, or for that matter nonreligious, schools. Ante, at 822–825.
The plurality, however, misreads our precedent as focusing only on af-
firmatively religious content. At the very least, a building, for example,
has no such content, but we have squarely required the government to
ensure that no publicly financed building be diverted to religious use.
Tilton v. Richardson, 403 U. S. 672, 681–684 (1971). See also Bowen v.
Kendrick, 487 U. S. 589, 623 (1988) (O’Connor, J., concurring) (“[A]ny use
of public funds to promote religious doctrines violates the Establishment
Clause”).
11 We have similarly noted that paying salaries of parochial school teach-
ers creates too much of a risk that such support will aid the teaching of
religion, striking down such programs because of the need for pervasive
monitoring that would be required. See Lemon, 403 U. S., at 619 (“We do
not assume, however, that parochial school teachers will be unsuccessful

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Souter, J., dissenting
cannot consistently with the ‘establishment of religion’ clause
of the First Amendment contribute tax-raised funds to the
support of an institution which teaches the tenets and faith
of any church”); id., at 18 (“The State contributes no money
to the schools. It does not support them”); Allen, 392 U. S.,
at 243–244 (“[N]o funds or books are furnished to parochial
schools, and the financial benefit is to parents and children,
not schools”); Walz, supra, at 675 (“Obviously a direct money
subsidy would be a relationship pregnant with involvement
and, as with most governmental grant programs, could en-
compass sustained and detailed administrative relationships
for enforcement of statutory or administrative standards”);
Lemon, supra, at 612 (identifying “three main evils” against
which Establishment Clause was to protect as “sponsorship,
financial support, and active involvement of the sovereign in
religious activity,” citing Walz); 403 U. S., at 621 (distinguish-
ing direct financial aid program from Everson and Allen and
noting problems with required future surveillance); Nyquist,
413 U. S., at 762, 774 (striking down “direct money grants”
for maintaining buildings because there was no attempt to
restrict payments to those expenditures related exclusively
to secular purposes); Levitt, 413 U. S., at 480, 482 (striking
down “direct money grant” for testing expenses); 12 Hunt v.
in their attempts to segregate their religious beliefs from their secular
educational responsibilities. But the potential for impermissible fostering
of religion is present. The [state legislature] has not, and could not, pro-
vide state aid on the basis of a mere assumption that secular teachers
under religious discipline can avoid conflicts. The State must be certain,
given the Religion Clauses, that subsidized teachers do not inculcate
religion . . . . A comprehensive, discriminating, and continuing state sur-
veillance will inevitably be required to ensure that these restrictions are
obeyed and the First Amendment otherwise respected”).
12 It is true that we called the importance of the cash payment consider-
ation into question in Committee for Public Ed. and Religious Liberty v.
Regan, 444 U. S. 646, 657–659 (1980) (approving program providing reli-
gious school with “direct cash reimbursement” for expenses of standard-
ized testing). In that case, we found the other safeguards against the
diversion of such funds to religious uses sufficient to allow such aid: “A

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892 MITCHELL v. HELMS
Souter, J., dissenting
McNair, 413 U. S. 734, 745, n. 7 (1973) (noting approved aid
is “no expenditure of public funds, either by grant or loan”);
Wolman, 433 U. S., at 239, and n. 7 (noting that “statute does
not authorize any payment to nonpublic school personnel for
the costs of administering the tests”); Agostini, 521 U. S., at
228–229 (emphasizing that approved services are not “dis-
tributed ‘directly to the religious schools.’ . . . No Title I
funds ever reach the coffers of religious schools, and Title I
services may not be provided to religious schools on a school-
wide basis” (citations omitted)); Bowen, 487 U. S., at 614–615;
Rosenberger, 515 U. S., at 842 (noting that “we have rec-
ognized special Establishment Clause dangers where the
government makes direct money payments to sectarian in-
stitutions”); cf. Lemon, 403 U. S., at 619–620 (noting that
safeguards and accounting inspections required to prevent
government funds from supporting religious education will
cause impermissible entanglement); Roemer, 426 U. S., at
753–757 (approving segregated funds after finding recipients
not pervasively religious); Ball, 473 U. S., at 392–393 (noting
that “[w]ith but one exception, our subsequent cases have
struck down attempts by States to make payments out of
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 grad-
ing function is the same regardless of who performs it and would not have
the primary effect of aiding religion whether or not performed by nonpub-
lic school personnel.” Id., at 658. Aside from this isolated circumstance,
where we found ironclad guarantees of nondiversion, we have never re-
laxed our prohibition on direct cash aid to pervasively religious schools,
and have in fact continued to acknowledge the concern. See Agostini,
521 U. S., at 228–229; cf. Rosenberger, 515 U. S., at 842.
The plurality concedes this basic point. See ante, at 818–819. Given
this, I find any suggestion that this prohibition has been undermined
by Mueller or Witters without foundation. See ante, at 819–820, n. 8.
Those cases involved entirely different types of aid, namely, tax deductions
and individual scholarship aid for university education, see also n. 16,
infra, and were followed by Rosenberger and Agostini, which continued
to support this absolute restriction.

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Souter, J., dissenting
public tax dollars directly to primary or secondary religious
educational institutions”), overruled in part by Agostini,
supra, at 236; Witters, 474 U. S., at 487 (“It is equally
well-settled . . . that the State may not grant aid to a reli-
gious school, whether cash or in kind, where the effect of the
aid is that of a direct subsidy to the religious school” (inter-
nal quotation marks and citations omitted)); Rosenberger,
supra, at 851–852 (O’Connor, J., concurring) (noting that
student fee was not a tax).
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 serv-
ice of religious ends.13 In upholding a scheme to provide
students with secular textbooks, we emphasized that “each
book loaned must be approved by the public school authori-
ties; only secular books may receive approval.” Allen, 392
U. S., at 244–245; see also Meek, 421 U. S., at 361–362 (opinion
of Stewart, J.); Wolman, supra, at 237–238. By the same
token, we could not sustain provisions for instructional mate-
rials adaptable to teaching a variety of subjects.14 Meek,
supra, at 363; Wolman, supra, at 249–250. While the text-
books had a known and fixed secular content not readily di-
13 I reject the plurality’s argument that divertibility is a boundless prin-
ciple. Ante, at 824–825. Our long experience of evaluating this consider-
ation demonstrates its practical limits. See infra this page and 894–895.
Moreover, the Establishment Clause charges us with making such enqui-
ries, regardless of their difficulty. See supra, at 875–878, 884–885. Fi-
nally, the First Amendment’s rule permitting only aid with fixed secular
content seems no more difficult to apply than the plurality’s rule prohibit-
ing only aid with fixed religious content.
14 Contrary to the plurality’s apparent belief, Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508 U. S. 384 (1993), sheds no light on
the question of divertibility and school aid. Ante, at 822, n. 9. The Court
in that case clearly distinguished the question of afterschool access to pub-
lic facilities from anything resembling the school aid cases: “The showing
of this film series would not have been during school hours, would not have
been sponsored by the school, and would have been open to the public, not
just to church members.” 508 U. S., at 395.

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Souter, J., dissenting
vertible to religious teaching purposes, the adaptable mate-
rials 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. 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 by-
product” (citation omitted)). We likewise were able to up-
hold underwriting the expenses of standard state testing in
religious schools while being forced to strike down aid for
testing designed by the school officials, because the latter
tests could be used to reinforce religious teaching. Com-
pare id., at 240 (“[T]he State provides both the schools and
the school district with the means of ensuring that the mini-
mum standards are met. The nonpublic school does not con-
trol the content of the test or its result. This serves to pre-
vent the use of the test as part of religious teaching, and
thus avoids that kind of direct aid to religion found present
in Levitt”); Committee for Public Ed. and Religious Liberty
v. Regan, 444 U. S. 646, 661–662 (1980) (same), with Levitt,
413 U. S., at 480 (“We cannot ignore the substantial risk that
these examinations, prepared by teachers under the author-
ity of religious institutions, will be drafted with an eye, un-
consciously or otherwise, to inculcate students in the reli-
gious precepts of the sponsoring church”).
15 In Lemon, we also specifically examined the risk that a government
program that paid religious teachers would support religious education;
the teachers posed the risk of being unable to separate secular from reli-
gious education. Although we invalidated the program on entanglement
grounds, we suggested that the monitoring the State had established in
that case was actually required to eliminate the risk of diversion. See
403 U. S., at 619; see also n. 11, supra.

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Souter, J., dissenting
With the same point in mind, we held that buildings
constructed with government grants to universities with
religious affiliation must be barred from religious use
indefinitely to prevent the diversion of government funds
to religious objectives. Tilton, 403 U. S., at 683 (plurality
opinion) (“If, at the end of 20 years, the building is, for exam-
ple, converted into a chapel or otherwise used to promote
religious interests, the original federal grant will in part
have the effect of advancing religion. To this extent the Act
therefore trespasses on the Religion Clauses”); see also
Hunt, 413 U. S., at 743–744. We were accordingly con-
strained to strike down aid for repairing buildings of nonpub-
lic schools because they could be used for religious education.
Nyquist, 413 U. S., at 776–777.
Divertibility was, again, the issue in an order remanding
an as-applied challenge to a grant supporting counseling on
teenage sexuality for findings that the aid had not been used
to support religious education. Bowen, 487 U. S., at 621; see
also id., at 623 (O’Connor, J., concurring). And the most
recent example of attention to the significance of divertibility
occurred in our explanation that public school teachers could
be assigned to provide limited instruction in religious schools
in Agostini, 521 U. S., at 223–227, a majority of the Court
rejecting the factual assumption that public school teachers
could be readily lured into providing religious instruction.16
16 The plurality is mistaken in its reading of Zobrest. See ante, at 820–
821. Zobrest does not reject the principle of divertibility. There the
government provided only a translator who was not considered divertible
because he did not add to or subtract from the religious message. The
Court approved the translator as it would approve a hearing aid, health
services, diagnostics, and tests. See Zobrest, 509 U. S., at 13, and n. 10.
Cf. Bradfield v. Roberts, 175 U. S. 291, 299–300 (1899); Wolman, 433 U. S.,
at 244. Zobrest thus can be thought of as akin to our approval of diagnos-
tic services in Wolman, supra, at 244, which we considered to have “little
or no educational content[,] not [to be] closely associated with the educa-
tional mission of the nonpublic school,” and not to pose “an impermissible

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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. Al-
though 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 indoc-
trination, Hunt, supra, at 743, 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. See,
e. g., Cochran v. Louisiana Bd. of Ed., 281 U. S. 370, 375
(1930) (noting that religious schools “are not the beneficiaries
of these appropriations. They obtain nothing from them,
nor are they relieved of a single obligation because of them”
(internal quotation marks omitted)); Everson, 330 U. S., at
18 (specifically noting that bus fare program did not support
or fund religious schools); Allen, 392 U. S., at 244 (stating
that “the financial benefit [of providing the textbooks] is to
parents and children, not to schools” (footnote omitted)); id.,
risk of the fostering of ideological views.” The fact that the dissent saw
things otherwise (as the plurality points out, ante, at 821) is beside the
point here.
Similarly, the plurality is mistaken in reading our holdings in Mueller
and Witters, see ante, at 821, to undermine divertibility as a relevant prin-
ciple. 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. 5, 6 (citing Walz v. Tax Comm’n
of City of New York, 397 U. S. 664 (1970)), and Witters involving scholar-
ship money distributed to a university, not a primary or secondary school,
see Tilton, 403 U. S., at 685–686, that was not significant enough as a
whole to support that institution, Witters, 474 U. S., at 488. Second, in
neither case did the program at issue provide direct aid on a schoolwide
basis (as Chapter 2 does here); in both we found a distinction based on the
genuinely independent, private choices which allocated such very different
types of aid (tax deductions and university scholarship money that did not
amount to substantial support of the university). See Mueller, supra, at
399; Witters, supra, at 488.

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at 244, n. 6 (explicitly recognizing that “the record contains
no evidence that any of the private schools in appellants’ dis-
tricts previously provided textbooks for their students”);
Lemon, 403 U. S., at 656 (opinion of Brennan, J.) (noting no
aid to schools was involved in Allen). We ignored this pro-
hibition 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 aid.17 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 other-
wise would have borne in educating their students.” In
Agostini, the Court made a point of noting that the objects
of the aid were “by law supplemental to the regular curric-
ula” and, citing Zobrest, explained that the remedial educa-
tion services did not relieve the religious schools of costs
they would otherwise have borne. 521 U. S., at 228 (citing
Zobrest, supra, at 12). The Court explicitly stated that the
17 Our departure from this principle in Regan is not easily explained, but
it is an isolated holding surrounded by otherwise unbroken adherence to
the no-supplanting principle. Long after Regan we have continued to find
the supplement/supplant distinction, like the bar to substantial aid, to be
an important consideration. See Zobrest, supra, at 12; Agostini, 521 U. S.,
at 228; cf. Witters, supra, at 487–488 (discussing rule against “direct sub-
sidy”). The weight that the plurality places on Regan is thus too much
for it to bear. See ante, at 815, n. 7. Moreover, the apparent object of
the Regan Court’s concern was vindicating the principle that aid with fixed
secular content was permissible, distinguishing it from the divertible test-
ing aid in Levitt. Regan, 444 U. S., at 661–662 (citing Wolman, supra, at
263); cf. Levitt, 413 U. S., at 480. The plurality provides no explanation
for our continued reference to the principle of no-supplanting aid in subse-
quent cases, such as Zobrest and Agostini, which it finds trustworthy
guides elsewhere in its discussion of the First Amendment. See ante, at
822–823, 825, 827, 829–832. Nor does the plurality explain why it places
so much weight on Regan’s apparent departure from the no-supplanting
rule while it ignores Regan’s core reasoning that the testing aid there was
permissible because, in direct contrast to Levitt, the aid was not divertible.

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898 MITCHELL v. HELMS
Souter, J., dissenting
services in question did not “supplant the remedial instruc-
tion and guidance counseling already provided in New York
City’s sectarian schools.” 521 U. S., at 229.
Finally, we have recognized what is obvious (however im-
precise), in holding “substantial” amounts of aid to be uncon-
stitutional whether or not a plaintiff can show that it sup-
plants 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 author-
ized by [the program], it would simply ignore reality to
attempt to separate secular educational functions from the
predominantly religious role performed by many of Pennsyl-
vania’s church-related elementary and secondary schools and
then characterize [the program] as channeling aid to the sec-
ular without providing direct aid to the sectarian.” Id., at
365. See id., at 366 (“Substantial aid to the educational
function of such schools . . . necessarily results in aid to the
sectarian school enterprise as a whole”); see also Nyquist,
413 U. S., at 783; Wolman, 433 U. S., at 250–251. In Witters,
474 U. S., at 488, the Court asked whether the aid in question
was a direct subsidy to religious schools and addressed the
substantiality of the aid obliquely in noting that “nothing in
the record indicates that . . . any significant portion of the
18 I do not read the plurality to question the prohibition on substantial
aid. The plurality challenges any rule based on the proportion of aid that
a program provides to religious recipients, citing Witters and Agostini.
See ante, at 812, n. 6. I reject the plurality’s reasoning. The plurality
misreads Witters; Justice Marshall, writing for the Court in Witters, em-
phasized that only a small amount of aid was provided to religious institu-
tions, 474 U. S., at 488, and no controlling majority rejected the impor-
tance of this fact. The plurality also overreads Agostini, supra, at 229,
which simply declined to adopt a rule based on proportionality. More-
over, regardless of whether the proportion of aid actually provided to reli-
gious schools is relevant, we have never questioned our holding in Meek
that substantial aid to religious schools is prohibited.

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Souter, J., dissenting
aid expended under the Washington program as a whole will
end up flowing to religious education.” In Zobrest, supra,
at 12, the Court spoke of the substantiality test in Meek,
noting that “[d]isabled children, not sectarian schools, are
the primary beneficiaries of the [Individuals with Disabilities
Act (IDEA)]; to the extent sectarian schools benefit at all
from the IDEA, they are only incidental beneficiaries.”
C
This stretch of doctrinal history leaves one point clear be-
yond peradventure: together with James Madison we have
consistently understood the Establishment Clause to impose
a substantive prohibition against public aid to religion and,
hence, to the religious mission of sectarian schools. Even-
handedness neutrality is one, nondispositive pointer toward
an intent and (to a lesser degree) probable effect on the per-
missible side of the line between forbidden aid and general
public welfare benefit. Other pointers are facts about the
religious mission and education level of benefited schools and
their pupils, the pathway by which a benefit travels from
public treasury to educational effect, the form and content of
the aid, its adaptability to religious ends, and its effects on
school budgets. The object of all enquiries into such mat-
ters is the same whatever the particular circumstances: is
the benefit intended to aid in providing the religious element
of the education and is it likely to do so?
The substance of the law has thus not changed since Ever-
son. Emphasis on one sort of fact or another has varied
depending on the perceived utility of the enquiry, but all that
has been added is repeated explanation of relevant considera-
tions, 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.

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900 MITCHELL v. HELMS
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III
A
The nub of the plurality’s new position is this:
“[I]f the government, seeking to further some legitimate
secular purpose, offers aid on the same terms, without
regard to religion, to all who adequately further that
purpose, then it is fair to say that any aid going to a
religious recipient only has the effect of furthering that
secular purpose. The government, in crafting such an
aid program, has had to conclude that a given level of
aid is necessary to further that purpose among secular
recipients and has provided no more than that same
level to religious recipients.” Ante, at 810 (citation
omitted).
As a break with consistent doctrine the plurality’s new crite-
rion is unequaled in the history of Establishment Clause in-
terpretation. Simple on its face, it appears to take even-
handedness neutrality and in practical terms promote it to a
single and sufficient test for the establishment constitutional-
ity of school aid. Even on its own terms, its errors are mani-
fold, and attention to at least three of its mistaken assump-
tions will show the degree to which the plurality’s proposal
would replace the principle of no aid with a formula for gen-
erous religious support.
First, the plurality treats an external observer’s attribu-
tion of religious support to the government as the sole im-
permissible effect of a government aid scheme. See, e. g.,
ante, at 809 (“[N]o one would conclude that any indoctri-
nation that any particular recipient conducts has been done
at the behest of the government”). While perceived state
endorsement of religion is undoubtedly a relevant concern
under the Establishment Clause, see, e. g., Allegheny
County, 492 U. S., at 592–594; see also Capitol Square Re-
view and Advisory Bd. v. Pinette, 515 U. S. 753, 772–774
(1995) (O’Connor, J., concurring in part and concurring in

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Souter, J., dissenting
judgment); id., at 786–787 (Souter, J., concurring in part
and concurring in judgment), it is certainly not the only one.
Everson made this clear from the start: secret aid to religion
by the government is also barred. 330 U. S., at 16. 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. 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 establish-
ment constitutionality and eliminate the effects enquiry di-
rected by Allen, Lemon, and other cases. Under the plural-
ity’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 sup-
posedly having no impermissible effect of aiding religion.19
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 exter-
nal perception and on incentives to attend different schools.
See ante, at 809–810, 813–814. But there is no reason to
believe that this will be the case; the effects of same-terms
aid may not be confined to the secular sphere at all. This is
the reason that we have long recognized that unrestricted
aid to religious schools will support religious teaching in ad-
19 Adopting the plurality’s rule would permit practically any government
aid to religion so long as it could be supplied on terms ostensibly compara-
ble to the terms under which aid was provided to nonreligious recipients.
As a principle of constitutional sufficiency, the manipulability of this rule
is breathtaking. A legislature would merely need to state a secular objec-
tive in order to legalize massive aid to all religions, one religion, or even
one sect, to which its largess could be directed through the easy exercise
of crafting facially neutral terms under which to offer aid favoring that
religious group. Short of formally replacing the Establishment Clause, a
more dependable key to the public fisc or a cleaner break with prior law
would be difficult to imagine.

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902 MITCHELL v. HELMS
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dition to secular education, a fact that would be true no mat-
ter what the supposedly secular purpose of the law might be.
Third, the plurality assumes that per capita distribution
rules safeguard the same principles as independent, private
choices. But that is clearly not so. We approved university
scholarships in Witters because we found them close to giv-
ing a government employee a paycheck and allowing him to
spend it as he chose, but a per capita aid program is a far
cry from awarding scholarships to individuals, one of whom
makes an independent private choice. Not the least of the
significant differences between per capita aid and aid individ-
ually determined and directed is the right and genuine op-
portunity 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.
The plurality’s mistaken assumptions explain and under-
score 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 reli-
gion; the more massive the aid the more potent would be the
influence of the government on the teaching mission; the
more generous the support, the more divisive would be the
resentments of those resisting religious support, and those
religions without school systems ready to claim their fair
share.
B
The plurality’s conception of evenhandedness does not,
however, control the case, whose disposition turns on the
misapplication of accepted categories of school aid analysis.
The facts most obviously relevant to the Chapter 2 scheme
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. See Brief for Respondents 1, and n. 1.

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in Jefferson Parish are those showing divertibility and actual
diversion in the circumstance of pervasively sectarian reli-
gious schools. The type of aid, the structure of the pro-
gram, and the lack of effective safeguards clearly demon-
strate 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 sus-
ceptible to unconstitutional use. Much of the equipment
provided under Chapter 2 was not of the type provided for
individual students, App. to Pet. for Cert. 140a; App. 262a–
278a, but included “slide projectors, movie projectors, over-
head projectors, television sets, tape recorders, projec-
tion screens, maps, globes, filmstrips, cassettes, computers,”
and computer software and peripherals, Helms v. Cody,
No. 85–5533, 1990 WL 36124 (ED La., Mar. 27, 1990); App.
to Pet. for Cert. 140a; App. 90a, 262a–278a, as well as library
books and materials, id., at 56a, 126a, 280a–284a. The video-
cassette players, overhead projectors, and other instruc-
tional aids were of the sort that we have found can easily be
used by religious teachers for religious purposes. Meek, 421
U. S., at 363; Wolman, 433 U. S., at 249–250. The same was
true of the computers, which were as readily employable for
religious teaching as the other equipment, and presumably
as immune to any countervailing safeguard, App. 90a, 118a,
164a–165a. Although library books, like textbooks, have
fixed content, religious teachers can assign secular library
books for religious critique, and books for libraries may be
religious, as any divinity school library would demonstrate.
The sheer number and variety of 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 Jeffer-
son Parish. Requests for specific items under Chapter 2
came not from secular officials, cf. Allen, 392 U. S., at 244–

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245, but from officials of the religious schools (and even par-
ents of religious school pupils), see ante, at 803 (noting that
private religious schools submitted their orders to the gov-
ernment for specific requested items); App. 156a–158a. The
sectarian schools decided what they wanted and often or-
dered the supplies, id., at 156a–159a, 171a–172a, to be for-
warded directly to themselves, id., at 156a–159a. It was
easy to select whatever instructional materials and library
books the schools wanted, just as it was easy to employ com-
puters for the support of the religious content of the curricu-
lum infused with religious instruction.
The concern with divertibility thus predicated is under-
scored 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 characteris-
tically the most pervasive, see Lemon, 403 U. S., at 616;
cf. Tilton, 403 U. S., at 686–689, and in which pupils are
the least critical of the schools’ religious objectives, see
Lemon, supra, at 616. No one, indeed, disputes the trial
judge’s findings, based on a detailed record, that the Roman
Catholic schools,21 which made up the majority of the private
schools participating,22 were pervasively sectarian,23 that
21 Litigation, discovery, and the opinions below focused almost exclu-
sively on the aid to the 34 Roman Catholic schools. Consequently, I will
confine my discussion to that information. Of course, the same concerns
would be raised by government aid to religious schools of other faiths that
a court found had similar missions of religious education and religious
teachers teaching religiously.
22 The Jefferson Parish Chapter 2 program included 46 nonpublic schools,
of which 41 were religiously affiliated. Thirty-four of these were Roman
Catholic, seven others were religiously affiliated, and five were not reli-
giously affiliated. App. to Pet. for Cert. 143a–144a.
23 The trial judge found that the Roman Catholic schools in question
operate under the general supervision and authority of the Archbishop of
New Orleans and their parish pastors, and are located next to parish
churches and sometimes a rectory or convent. Id., at 144a. The schools
include religious symbols in their classrooms, App. 75a, require attendance
at daily religion classes, id., at 76a, conduct sacramental preparation

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their common objective and mission was to engage in reli-
gious education,24 and that their teachers taught reli-
giously,25 making them precisely the kind of primary and
classes during the schoolday, require attendance at mass, and provide ex-
tracurricular religious activities. At least some exercise a religious pref-
erence in accepting students and in charging tuition. App. to Pet. for
Cert. 145a.
24 The District Court found that the mission of the Roman Catholic
schools is religious education based on the Archdiocese’s and the individual
schools’ published statements of philosophy. For example, the St. An-
thony School Handbook, cited by the District Court, reads:
“Catholic education is intended to make men’s faith become living, con-
scious and active through the light of instruction. The Catholic school is
the unique setting within which this ideal can be realized in the lives of
the Catholic children and young people.
“Only in such a school can they experience learning and living fully inte-
grated in the light of faith. . . . Here, too, instruction in religious truth and
values is an integral part of the school program. It is not one more sub-
ject along side the rest, but instead it is perceived and functions as the
underlying reality in which the student’s experiences of learning and liv-
ing achieve their coherence and their deepest meaning.” Ibid.
The Handbook of Policies and Regulations for Elementary Schools of
the Archdiocese of New Orleans indicates that the operation of the Roman
Catholic schools is governed by canon law. It also lists the major objec-
tives of those schools as follows:
“To work closely with the home in educating children towards the full-
ness of Christian life.
“To specifically teach Catholic principles and Christian values.” Id., at
146a.
The mission statements and objectives outlined by the other Roman Cath-
olic schools also support the conclusion that these institutions’ primary
objective is religious instruction. See also App. 65a, 71a.
25 The Archdiocese’s official policy calls for religious preferences in hir-
ing and the contracts of principals and teachers in its schools contain a
provision allowing for termination for lifestyle contrary to the teachings
of the Roman Catholic church. App. to Pet. for Cert. 145a. One of the
objectives of the handbook is “[t]o encourage teachers to become com-
mitted Christians and to develop professional competence.” Id., at 146a.
Other record evidence supports the conclusion that these religious school-
teachers teach religiously. See, e. g., App. 125a (deposition of president of
sectarian high school) (“Our teachers, whether they are religion teachers

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secondary religious schools that raise the most serious
Establishment Clause concerns. See Walz, 397 U. S., at 671;
Hunt, 413 U. S., at 743; Lemon, supra, at 636–637. The
threat to Establishment Clause values was accordingly at its
highest in the circumstances of this case. Such precaution-
ary 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 admoni-
tions against diversion, see, e. g., 20 U. S. C. §§ 7332, 8897,
and was supposedly subject to a variety of safeguards, see
ante, at 802–803, 832–834. But the provisions for onsite
monitoring visits, labeling of government property, and
government oversight cannot be accepted as sufficient in
the face of record evidence that the safeguard provisions
proved to be empty phrases in Jefferson Parish. Cf. Agos-
tini, 521 U. S., at 228–229; Zobrest, 509 U. S., at 13 (accept-
ing precautionary provisions in absence of evidence of their
uselessness).
The plurality has already noted at length the ineffective-
ness of the government’s monitoring program. Ante, at
832–834; see also App. 111a (“A system to monitor nonpublic
schools was often not in operation and therefore the [local
educational agency] did not always know: (a) what was pur-
chased or (b) how it was utilized”). Monitors visited a non-
public school only sporadically, discussed the program with a
single contact person, observed nothing more than attempts
at recordkeeping, and failed to inform the teachers of the
restrictions involved. Id., at 154a–155a. Although Chapter
2 required labeling of government property, it occurred hap-
hazardly at best, id., at 113a, and the government’s sole mon-
itoring system for computer use amounted to nothing more
or not, are certainly instructed that when issues come up in the classroom
that have a religious, moral, or value concept, that their answers be con-
sistent with the teachings of the Catholic Church and that they respond
in that way to the students, so that there can be opportunities in other
classes other than religion where discussion of religio[n] could take place,
yes, sir”); id., at 73a, 74a.

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than questioning school officials and examining the location
of computers at the schools, id., at 118a. No records of soft-
ware and computer use were kept, and no such recordkeep-
ing was even planned. Id., at 118a, 164a–166a. State and
local officials in Jefferson Parish admitted that nothing pre-
vented the Chapter 2 computers from being used for reli-
gious instruction, id., at 102a, 118a, 164a–166a, and although
they knew of methods of monitoring computer usage, such
as locking the computer functions, id., at 165a–166a, they
implemented no particular policies, instituted no systems,
and employed no technologies to minimize the likelihood of
diversion to religious uses,26 id., at 118a, 165a–166a. The
watchdogs did require the religious schools to give not so
much as an assurance that they would use Chapter 2 comput-
ers solely for secular purposes, Helms v. Picard, 151 F. 3d
347, 368 (1998), amended, 165 F. 3d 311 (CA5 1999); App.
94a–95a. Government officials themselves admitted that
there was no way to tell whether instructional materials had
been diverted, id., at 118a, 139a, 144a–145a, and, as the plu-
rality notes, the only screening mechanism in the library
book scheme was a review of titles by a single government
official, ante, at 832–833, n. 15; see App. 137a. The govern-
ment did not even have a policy on the consequences of non-
compliance. Id., at 145a.
The risk of immediate diversion of Chapter 2 benefits had
its complement in the risk of future diversion, against which
the Jefferson Parish program had absolutely no protection.
By statute all purchases with Chapter 2 aid were to remain
the property of the United States, 20 U. S. C. § 7372(c)(1),
merely being “lent” to the recipient nonpublic schools. In
actuality, however, the record indicates that nothing in the
26 The Government’s reliance on U. S. Department of Education Guid-
ance for Title VI of the Elementary and Secondary Education Act (Feb.
1999) is misplaced. See App. to Brief for Secretary of Education 1a. It
was not in place when discovery closed in this matter, and merely high-
lights the reasons for a lack of evidence on diversion or compliance.

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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 prop-
erty of the local education agency, a local government admin-
istrative 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. App. 161a–
162a. The witness said that government-funded instruc-
tional 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.
Ibid.
Providing such governmental aid without effective safe-
guards against future diversion itself offends the Establish-
ment Clause, Tilton, 403 U. S., at 682–684; Nyquist, 413
U. S., at 776–777, and even without evidence of actual diver-
sion, our cases have repeatedly held that a “substantial risk”
of it suffices to invalidate a government aid program on es-
tablishment grounds. See, e. g., Wolman, 433 U. S., at 254
(invalidating aid for transportation on teacher-accompanied
field trips because an “unacceptable risk of fostering of reli-
gion” was “an inevitable byproduct”); Meek, 421 U. S., at 372
(striking down program because of a “potential for impermis-
sible fostering of religion”); Levitt, 413 U. S., at 480 (invali-
dating aid for tests designed by religious teachers because
of “the substantial risk that . . . examinations, prepared by
teachers under the authority of religious institutions, will be
drafted with an eye, unconsciously or otherwise, to inculcate
students in the religious precepts of the sponsoring church”);
Lemon, 403 U. S., at 619 (finding invalid aid with a “potential
for impermissible fostering of religion”); cf. Bowen, 487 U. S.,
at 621 (noting that where diversion risk is less clearly made
out, a case may be remanded for findings on actual diversion
of aid to religious indoctrination); Regan, 444 U. S., at 656
(characterizing as “minimal” the chance that state-drafted
tests with “complete” safeguards would be adopted to reli-

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gious testing). A substantial risk of diversion in this case
was more than clear, as the plurality has conceded. The
First Amendment was violated.
But the record here goes beyond risk, to instances of
actual diversion. What one would expect from such paltry
efforts at monitoring and enforcement naturally resulted,
and the record strongly suggests that other, undocumented
diversions probably occurred as well. First, the record
shows actual diversion in the library book program. App.
132a–133a. Although only limited evidence exists, it con-
trasts starkly with the records of the numerous textbook
programs that we have repeatedly upheld, where there was
no evidence of any actual diversion. See Allen, 392 U. S., at
244–245; Meek, supra, at 361–362; Wolman, supra, at 237–
238. Here, discovery revealed that under Chapter 2, non-
public schools requested and the government purchased at
least 191 religious books with taxpayer funds by December
1985.27 App. 133a. Books such as A Child’s Book of Pray-
ers, id., at 84a, and The Illustrated Life of Jesus, id., at 132a,
27 The plurality applies inconsistent standards to the evidence. Al-
though the plurality finds more limited evidence of actual diversion suf-
ficient to support a general finding of diversion in the computer and in-
structional materials context, even in the face of Justice O’Connor’s
objections, it fails to find a violation of the prohibition against providing
aid with religious content based on the more stark, undisputed evidence
of religious books. Compare ante, at 832–834, and nn. 14–17, with ante,
at 834–835. As a matter of precedent, the correct evidentiary standard
is clearly the former: “[A]ny use of public funds to promote religious
doctrines violates the Establishment Clause.” Bowen, 487 U. S., at 623
(O’Connor, J., concurring). We have never before found any actual diver-
sion or allowed a risk of it; we have struck down policies that might permit
it, e. g., Tilton, 403 U. S., at 682–684, or have remanded for specific factual
findings about whether diversion occurred, Bowen, supra, at 621. See
supra, at 890–895. As a matter of principle, this low threshold is required
to safeguard the values of the First Amendment. Madison’s words make
clear that even a small infringement of the prohibition on compelled aid
to religion is odious to the freedom of conscience. No less does it open
the door to the threat of corruption or to a return to religious conflict.

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were discovered among others that had been ordered under
the program. See also id., at 59a–62a.
The evidence persuasively suggests that other aid was ac-
tually diverted as well. The principal of one religious school
testified, for example, that computers lent with Chapter 2
funds were joined in a network with other non-Chapter 2
computers in some schools, and that religious officials and
teachers were allowed to develop their own unregulated
software for use on this network. Id., at 77a. She ad-
mitted that the Chapter 2 computer took over the support of
the computing system whenever there was a breakdown of
the master computer purchased with the religious school’s
own funds. Ibid. Moreover, as the plurality observes,
ante, at 833–834, n. 17, comparing the records of considerable
federal funding of audiovisual equipment in religious schools
with records of the schools’ use of unidentified audiovisual
equipment in religion classes strongly suggests that film pro-
jectors and videotape machines purchased with public funds
were used in religious indoctrination over a period of at least
seven years. App. 205a, 210a, 206a–207a; see also id., at
108a (statement of second-grade teacher indicating that she
used audiovisual materials in all classes).
Indeed, the plurality readily recognizes that the aid in
question here was divertible and that substantial evidence
of actual diversion exists. Ante, at 832–834, and nn. 14–17.
Although Justice O’Connor attributes limited significance
to the evidence of divertibility and actual diversion, she also
recognizes that it exists. Ante, at 864–865 (opinion concur-
ring in judgment). The Court has no choice but to hold that
the program as applied violated the Establishment Clause.28
28 Since the divertibility and diversion require a finding of unconstitu-
tionality, I will not explore other grounds, beyond noting the likelihood
that unconstitutional supplantation occurred as well. The record demon-
strates that Chapter 2 aid impermissibly relieved religious schools of some
costs that they otherwise would have borne, and so unconstitutionally sup-

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Souter, J., dissenting
IV
The plurality would break with the law. The majority
misapplies it. That misapplication is, however, the only con-
solation in the case, which reaches an erroneous result but
does not stage a doctrinal coup. But there is no mistaking
the abandonment of doctrine that would occur if the plurality
were to become a majority. It is beyond question that the
plurality’s notion of evenhandedness neutrality as a practical
guarantee of the validity of aid to sectarian schools would be
the end of the principle of no aid to the schools’ religious
mission. And if that were not so obvious it would become
so after reflecting on the plurality’s thoughts about diversion
planted support in some budgetary categories. The record of affidavits
and evaluation forms by religious schoolteachers and officials indicates
that Chapter 2 aid was significant in the development of teaching cur-
riculums, the introduction of new programs, and the support of old ones.
App. 105a–108a, 184a–185a. The evidence shows that the concept of
supplementing instead of supplanting was poorly understood by the sole
government official administering the program, who apparently believed
that the bar on supplanting was nothing more than a prohibition on paying
for replacements of equipment that religious schools had previously pur-
chased. Id., at 167a. Government officials admitted that there was no
way to determine whether payments for materials, equipment, books, or
other assistance provided under the program reduced the amount of
money budgeted for library and educational equipment, id., at 145a–146a,
and the 1985 Monitoring Report shows that the officials of at least one
religious school admitted that the government aid was used to create the
library, with the school’s regular funds, when occasionally available, used
merely to supplement the government money, Fine Deposition, id., at 63a.
The use records for audiovisual materials at one religious high school re-
vealed that Chapter 2 funds were essential to the school’s educational
process, id., at 187a, and a different school, as already noted, used a Chap-
ter 2 computer to support its computer network when its own computers
failed, id., at 77a. The record is sparse, but these incidents suggest that
the constitutional and statutory prohibition on supplanting expenses may
have been largely aspirational. It seems that the program in Jefferson
Parish violated the statute and ran afoul of the Constitution. Cf. Nyquist,
413 U. S., at 783; Zobrest, 509 U. S., at 12.

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912 MITCHELL v. HELMS
Souter, J., dissenting
and about giving attention to the pervasiveness of a school’s
sectarian teaching.
The plurality is candid in pointing out the extent of actual
diversion of Chapter 2 aid to religious use in the case before
us, ante, at 832–834, and n. 17, and equally candid in saying it
does not matter, ante, at 820–825, 833–834. To the plurality
there is nothing wrong with aiding a school’s religious mis-
sion; the only question is whether religious teaching obtains
its tax support under a formally evenhanded criterion of dis-
tribution. The principle of no aid to religious teaching has
no independent significance.
And if this were not enough to prove that no aid in reli-
gious school aid is dead under the plurality’s First Amend-
ment, the point is nailed down in the plurality’s attack on
the legitimacy of considering a school’s pervasively sectarian
character when judging whether aid to the school is likely to
aid its religious mission. Ante, at 826–829. The relevance
of this consideration is simply a matter of common sense:
where religious indoctrination pervades school activities of
children and adolescents, it takes great care to be able to aid
the school without supporting the doctrinal effort. This is
obvious. The plurality nonetheless condemns any enquiry
into the pervasiveness of doctrinal content as a remnant of
anti-Catholic bigotry (as if evangelical Protestant schools and
Orthodox Jewish yeshivas were never pervasively sectar-
ian 29 ), and it equates a refusal to aid religious schools with
hostility to religion (as if aid to religious teaching were not
29 Indeed, one group of amici curiae, which consists of “religious and
educational leaders from a broad range of both Eastern and Western reli-
gious traditions, and Methodist, Jewish and Seventh-day Adventist indi-
viduals” including “church administrators, administrators of religious ele-
mentary and secondary school systems; elementary and secondary school
teachers at religious schools; and pastors and laity who serve on church
school boards,” identifies its members as having “broad experience teach-
ing in and administering pervasively sectarian schools.” Brief for Inter-
faith Religious Liberty Foundation et al. as Amici Curiae 1.

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913 Cite as: 530 U. S. 793 (2000)
Souter, J., dissenting
opposed in this very case by at least one religious respond-
ent 30 and numerous religious amici curiae 31 in a tradition
claiming descent from Roger Williams). My concern with
these arguments goes not so much to their details 32 as it
does to the fact that the plurality’s choice to employ imputa-
tions of bigotry and irreligion as terms in the Court’s debate
makes one point clear: that in rejecting the principle of no
aid to a school’s religious mission the plurality is attacking
the most fundamental assumption underlying the Establish-
ment Clause, that government can in fact operate with neu-
trality in its relation to religion. I believe that it can, and
so respectfully dissent.
30 One of the respondents describes herself as a “life-long, committed
member of the Roman Catholic Church” who “objects to the government
providing benefits to her parish school” because “[s]he has seen the chilling
effect such entangling government aid has on the religious mission of
schools run by her church.” Brief for Respondents 1. She has been a
member of the church for about 36 years, and six of her children attended
different Jefferson Parish Catholic run schools. Id., at 1, n. 1.
31 E. g., Brief for Baptist Joint Committee on Public Affairs as Amicus
Curiae; Brief for Interfaith Religious Liberty Foundation et al. as Amici
Curiae; Brief for National Committee for Public Education and Religious
Liberty et al. as Amici Curiae.
32 I do not think it worthwhile to comment at length, for example, on
the plurality’s clear misunderstanding of our access-to-public-forum cases,
such as Lamb’s Chapel and Widmar v. Vincent, 454 U. S. 263 (1981), as
“decisions that have prohibited governments from discriminating in the
distribution of public benefits based on religious status or sincerity,” ante,
at 828, when they were decided on completely different and narrowly lim-
ited free-speech grounds. Nor would it be worthwhile here to engage in
extended discussion of why the goal of preventing courts from having to
“trol[l] through a person’s or institution’s religious beliefs,” ibid., calls for
less aid and commingling of government with religion, not for tolerance of
their effects.