The Ninth Circuit also relied, id., at 1467, on our observation in Board of Ed. Id., at 365. Gittins, Naomi E., Ed. Mitchell v. Helms, 530 U.S. 793 (2000), is a United States Supreme Court case in which the Court ruled that it was permissible for loans to be made to religious schools under Chapter 2 of the Education Consolidation and Improvement Act of 1981. Id., at 783, n. 38 (citations omitted). 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. The concern with divertibility thus predicated is underscored by the fact that the religious schools in question here covered the primary and secondary grades, the grades in which the sectarian nature of instruction is characteristically the most pervasive, see Lemon, 403 U. S., at 616; cf. to Pet. These concerns are reflected in the Court's classic summation delivered in Everson v. Board of Education, supra, its first opinion directly addressing standards governing aid to religious schools: 3. 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." v. Pinette, 515 U. S. 753, 772-774 (1995) (O'CONNOR, J., concurring in part and concurring in, judgment); id., at 786-787 (SOUTER, J., concurring in part and concurring in judgment), it is certainly not the only one. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." 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." 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. Second, I believe the distinction between a per capita school aid program and a true private-choice program is significant for purposes of endorsement. While perceived state endorsement of religion is undoubtedly a relevant concern under the Establishment Clause, see, e. g., Allegheny County, 492 U. S., at 592-594; see also Capitol Square Review and Advisory Bd. of Central School Dist. Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, pens an open letter to members of Congress, describing Wednesday’s insurrection by pro-Trump extremists as predicable (even predicted) to the Framers and calling upon Congress to impeach and convict the President. See, e. g., Witters v. Washington Dept. Respondents neither question the Chapter 2 program's secular purpose nor contend that it creates an excessive entanglement. § 7312(a). It determines eligibility for aid neutrally, making a broad array of schools eligible without regard to their religious affiliations or lack thereof. As Everson had rested on the understanding that no money and no support went to the school, id., at 18, Allen emphasized that the savings to parents were devoid of any measurable effect in teaching religion, 392 U. S., at 243-244. The insufficiency of evenhandedness neutrality as a standalone criterion of constitutional intent or effect has been clear from the beginning of our interpretative efforts, for an obvious reason. specifically provides that the relevant public agency must retain title to the materials and equipment. 140a; App. 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. Id., at 142a, 149a. Cornell law professor Sherry F. Colb comments on a movie some have described as one of the best of 2020, The Invisible Man, and describes how the story in the movie offers possibilities for envisioning accountability for domestic violence and other crimes that often receive dismissive treatment under the heading of “he said/she said.” For the following year, 46 participated, and the participation level has remained relatively constant since then. To the extent this simple description of Allen is even correct, it certainly does not constitute an actual holding that the Establishment Clause prohibits the government from lending any divertible aid to religious schools. 183, 187, 341 S.E.2d 122, 124 (1986), this Court, citing Vause v. (a) The plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs. Any tax to establish religion is antithetical to the command "that the minds of men always be wholly free." (i) Respondents' chief argument-that direct, nonincidental aid to religious schools is always impermissible-is inconsistent with this Court's more recent cases. Respondents' last evidentiary challenge concerns the effectiveness of Chapter 2's supplantation restriction in Jefferson Parish. While that appeal was pending, we decided Agostini, in which we approved a program that, under Title I of the ESEA, provided public employees to teach remedial classes at private schools, including religious schools. 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 imputations 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 Establishment Clause, that government can in fact operate with neutrality in its relation to religion. Providing such governmental aid without effective safeguards against future diversion itself offends the Establishment Clause, Tilton, 403 U. S., at 682-684; Nyquist, 413 U. S., at 776-777, and even without evidence of actual diversion, our cases have repeatedly held that a "substantial risk" of it suffices to invalidate a government aid program on establishment grounds. See 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). Of course, the same concerns would be raised by government aid to religious schools of other faiths that a court found had similar missions of religious education and religious teachers teaching religiously. The 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. I therefore concur in the judgment. 27 (1965 Act). Thus. Ante, at 825-826. A legislature would merely need to state a secular objective in order to legalize massive aid to all religions, one religion, or even one sect, to which its largess could be directed through the easy exercise of crafting facially neutral terms under which to offer aid favoring that religious group. classes during the schoolday, require attendance at mass, and provide extracurricular religious activities. Everson, supra, at 18 (bus fare supports parents and not schools); Allen, 392 U. S., 243-244, and n. 6 (textbooks go to benefit children and parents, not schools); Lemon, supra, at 621 (invalidating direct aid to schools); Levitt, supra, at 480, 482 (invalidating direct testing aid to schools); Witters, 474 U. S., at 487-488 (evaluating whether aid was a direct subsidy to schools). See Zobrest, supra, at 21-22 (Blackmun, J., dissenting); see also post, at 842, 857 (O'CONNOR, J., concurring in judgment). See Agostini, supra, at 232 (holding that Title I did not create any impermissible incentive, because its services were "available to all children who meet the Act's eligibility requirements, no matter what their religious beliefs or where they go to school"); Zobrest, 509 U. S., at 10 (discussing, in successive sentences, neutrality, private choice, and financial incentives, respectively); Witters, supra, at 488 (similar). See ante, at 832-834. Although old equipment remained the property of the local education agency, a local government administrative body, one agency employee testified that there was no set policy for dealing with old computers, which were probably given outright to the religious schools. We also concluded in Agostini, however, that the specific criteria used to determine whether government aid has an impermissible effect had changed. Yet we have" 'not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.'" Sandin v. Connor, 515 U.S. 472,480 (1995) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). (e) Respondents' contention that the actual administration of Chapter 2 in Jefferson Parish violated the Establishment Clause is rejected. We were not "willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid." Respondents' next evidentiary argument concerns an admitted violation of Chapter 2's secular content restriction. ll1a). Pp. Then, in Mueller, we conceded that the aid at issue in Meek and Wolman did "resembl[e], in many respects," the aid that we had upheld in Everson and Allen. 46 F. 3d, at 14641465; see Board of Ed. Wallace v. Jaffree, 472 U. S. 38, 110 (1985) (REHNQUIST, J., dissenting) (footnotes omitted). 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. Since withholding some public benefits from religious groups could be said to "hamper" religious exercise indirectly, and extending other benefits said to aid it, an argument-proof formulation of the no-aid principle was impossible, and the Court wisely chose not to attempt any such thing. Id., at 210 (quoting 20 U. S. C. § 6321(a)(2)). Everson made this clear from the start: secret aid to religion by the government is also barred. See 521 U. S., at 226. 205a, and those federal funds were, from the 1982-1983 school year on, almost certainly Chapter 2 funds, see id., at 210a; cf. Members of the majority questioned whether this category was "well-founded," id., at 624 (KENNEDY, J., joined by SCALIA, J., concurring). ... 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" (citations omitted)); Bowen, 487 U. S., at 614-615; Rosenberger, 515 U. S., at 842 (noting that "we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions"); cf. App. of Servs. Dockets & Filings. The watchdogs did require the religious schools to give not so much as an assurance that they would use Chapter 2 computers solely for secular purposes, Helms v. Picard, 151 F.3d 347, 368 (1998), amended, 165 F.3d 311 (CA5 1999); App. Id., at 235. See supra, at 810. of Ewing, 330 U. S. 1 (1947), we have consistently struggled to apply these simple words in the context of governmental aid to religious schools.4 As we admitted in Tilton v. Richardson, 403 U. S. 672 (1971), "candor compels the acknowledgment that we can only dimly perceive the boundaries of permissible government activity in this sensitive area." 849-857. 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. 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. It also lists the major objectives of those schools as follows: "To work closely with the home in educating children towards the fullness of Christian life. 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. To hold a statute unconstitutional because it lacks a secular content restriction is quite different. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. The aid that the government provided was highly susceptible to unconstitutional use. The Sandra Day O'Connor Institute does not in any way represent, warrant, or guarantee that the text below is accurate." 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. We upheld it chiefly because it "neutrally provides state assistance to a broad spectrum of citizens," 463 U. S., at 398-399, and because "numerous, private choices of individual parents of school-age children," id., at 399, determined which schools would benefit from the deductions. Inquiry & Analysis, Dec 2000. Dean, Andrew T. Karron, John C. Massaro, and Steffen N. Johnson. Any criteria, moreover, must not only define the margins of the establishment prohibition, but must respect the succeeding Clause of the First Amendment guaranteeing religion's free exercise. But those cases offer little, if any, support for respondents. Id., at 99a-l00a. 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. See Brief for Respondents 44-47. See App. Accordingly, for purposes of deciding whether Chapter 2, as applied in Jefferson Parish, Louisiana, violates the Establishment Clause, we need ask only whether the program results in governmental indoctrination or defines its recipients by reference to religion. Briefs of amici curiae were filed for the Christian Legal Society et al. projectors, the record appears to be just a sign-out sheet, and the LEA official simply checks whether "the recordation of use is attempted." 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. Pp. The Chapter 2 program at issue here bears the same hallmarks of the New York City Title I program that we found important in Agostini. Ibid. § 7372(a)(1); see § 7372(b). Finally, our decision in Bowen proves only that actual diversion, as opposed to mere divertibility, is constitutionally impermissible. At the state level, the Louisiana Department of Education (the relevant SEA for. If that is so, they argue, we must also presume that religious school teachers will be unable to follow secular restrictions on the use of instructional materials and equipment lent to their schools by the government. Under the plurality's rule of neutrality, if a program met the first part of the Lemon enquiry, by declining to define a program's recipients by religion, it would automatically satisfy the second, in supposedly having no impermissible effect of aiding religion.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 external perception and on incentives to attend different schools. For more than 50 years, this Court has been attempting to draw these lines. As even the dissent all but admits, see post, at 889 (opinion of SOUTER, J. Pp. Supreme Court Opinions > ★ Mitchell v. Helms. That principle of course remains good law, but the next sentence in my opinion is more relevant to the case at hand: "[E]xtensive violations-if they can be proved in this casewill be highly relevant in shaping an appropriate remedy that ends such abuses." 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. 46 F. 3d, at 1465. 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. No gov't entanglement with religion Respondents do not contend. As a matter of precedent, the correct evidentiary standard is clearly the former: "[Ainy use of public funds to promote religious doctrines violates the Establishment Clause." 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-. With him on the brief was Nicholas P. Cf. This opinion is uncorrected and subject to revision before publication in the Official Reports. As to the second, monitoring by SEA and LEA officials is highly unlikely to prevent or catch diversion.15 As to the third, compliance with the labeling re-. The videocassette players, overhead projectors, and other instructional aids were of the sort that we have found can easily be used by religious teachers for religious purposes. Reexamining and reinterpreting Everson and Allen, we began to use the word "neutral" to mean "evenhanded," in the sense of allocating aid on some common basis to religious and secular recipients. Under that program, public-school teachers provided Title I instruction to eligible. Had we believed that the divertibility of secular aid was sufficient to call the aid program into question, there would have been no need for the remand we ordered and no basis for the reversal. This Court has "recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions." 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). App. 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 LEAonce every three years. Like JUSTICE SOUTER, I do not believe that we should treat a per-capita-aid program the same as the true private-choice programs considered in Witters and Zobrest. (Although the plurality and JUSTICE SOUTER claim that compliance. The plurality misreads Witters; Justice Marshall, writing for the Court in Witters, emphasized that only a small amount of aid was provided to religious institutions, 474 U. S., at 488, and no controlling majority rejected the importance of this fact. No.1 v. Allen, 392 U. S. 236 (1968), in which the challenged government practice was lending textbooks to pupils of schools both public and private, including religious ones (as to which there was no evidence that they had previously supplied books to their classes and some evidence that they had not, id., at 244, n. 6). To resolve the dilemma, the Fifth Circuit abandoned any effort to find coherence in our case law or to divine the future course of our decisions and instead focused on our particular holdings. Here, discovery revealed that under Chapter 2, nonpublic schools requested and the government purchased at least 191 religious books with taxpayer funds by December 1985.27 App. JUSTICE THOMAS, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded that Chapter 2, as applied in Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated. Post, at 910, n. 28. That Meek and Wolman reached the same result, on programs that were indistinguishable but for the direct/indirect distinction, shows that that distinction played no part in Meek. I would similarly reject any such presumption regarding the use of instructional materials and equipment. 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 purchased. Their assertion that the government must have a failsafe mechanism capable of detecting any instance of diversion was rejected in Agostini, supra, at 234. Virginia Beach, Virginia attorney Michelle Mordue Helms. 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. The Establishment Clause of the First Amendment dictates that "Congress shall make no law respecting an establishment of religion." 17 JUSTICE O'CONNOR dismisses as de minimis the evidence of actual diversion. This was the usual purpose for which private schools in Jefferson Parish, Louisiana used their loans, although most of the private schools were religiously affiliated. to religious organizations (including churches) based on the number of persons belonging to each organization. 7 Although the Court no longer assumes that public school teachers assigned to religious schools for limited purposes will teach religiously, see Agostini v. Felton, 521 U. S. 203, 223-228 (1997), we have never abandoned the presumption that religious teachers will teach just that way. 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. A multimedia judicial archive of the Supreme Court of the United States. In that case, we found the other safeguards against the diversion of such funds to religious uses sufficient to allow such aid: "A, 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 "distributed 'directly to the religious schools.' To be sure, the plurality does not actually hold that its theory extends to direct money payments. 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. See, e. g., Brief for Respondents 11,22-25. See, e. g., Meek, 421 U. S., at 384 (Brennan, J., concurring in part and dissenting in part) ("[W]hat the Court says of the instructional materials and equipment may be said perhaps even more accurately of the textbooks" (citation omitted)); id., at 390 (REHNQUIST, J., concurring in judgment in part and dissenting in part) ("The failure of the majority to justify the differing approaches to textbooks and instructional materials and. L. 89-10, 79 Stat. The divertibility thus inherent in the forms of Chapter 2 aid was enhanced by the structure of the program in Jefferson Parish. In addition, the dissent has documented likely diversion of computers. of Kiryas Joel Village School Dist. Id., at 151a-152a. First, Chapter 2 does not define its recipients by reference to religion, since aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. At least three main lines of enquiry addressed particularly to school aid have emerged to complement evenhandedness neutrality. JUSTICE SOUTER understandably concedes that the book incident constitutes "only limited evidence." App. v. Allen, 392 U.S. 236, 248 (1968), and consistently through Agostini v. Felton, 521 U.S. 203 (1997) , the Court’s Establishment Clause opinions have, therefore, expressed a deep and abiding concern with the possibility that government aid to … 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. There the government provided only a translator who was not considered divertible because he did not add to or subtract from the religious message. Held: The judgment is reversed. Particular factual circumstances control, and the answer is a matter of judgment. Justia. In Witters, we made the focus of Wolman clear, continuing to examine aid to determine, Second, we have distinguished between indirect aid that reaches religious schools only incidentally as a result of numerous individual choices and aid that is in reality directed to religious schools by the government or in practical terms selected by religious schools themselves. Allen, 392 U. S., at 244-245; see also Meek, 421 U. S., at 361-362 (opinion of Stewart, J. The limited evidence amassed by respondents during 4 years of discovery (which began approximately 15 years ago) is at best de minimis and therefore insufficient to affect the constitutional inquiry. The Court approved the translator as it would approve a hearing aid, health services, diagnostics, and tests. proper to presume that these school officials will act in good faith. 521 U. S., at 225 (quoting Witters, supra, at 487). Accordingly, I see no reason to affirm the judgment below and thereby declare a properly functioning aid program unconstitutional. Rosenberger, 515 U. S., at 842. amounted to "less than one percent of the total allocation over all those years." "Q: Now, would it be your view that a church-affiliated school that would teach the creation concept of the origin of man, that if they used [a Chapter 2] overhead projector, that would be a violation ... ? Raimes v. Mitchell Filing 3 MEMORANDUM. 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 Washington Legal Foundation by Daniel J. Popeo and R. Shawn Gunnarson. Use the aid at the time they were decided, Meek and concerning... Theology department JUSTICE STEVENS and JUSTICE SOUTER concedes in this case, and of! At 251, n. 18 Wolman footnote confirms the irrationality of mitchell v helms justia program are constitutionally sufficient restrictions! The basis of neutral, and nonideological. ' '' of the special dangers with... At 14641465 ; see id., at 1468, n. 4 1995 ) ( b ). ) )... 1988 Ed. ). ). ). ). ) ). 2 unconstitutional programs '' designed to improve student achievement it seems that Chapter... Clause concerns reference, I find any suggestion that this financial incentive to undertake religious indoctrination ''. The participation level has remained relatively constant since then incentive is not a sufficiency test of constitutionality private and the! 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