530 U.S. 793 (2000), 98-1648, Mitchell v. Helms

Docket Nº:Case No. 98-1648
Citation:530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660, 68 U.S.L.W. 4668
Party Name:MITCHELL et al. v. HELMS et al.
Case Date:June 28, 2000
Court:United States Supreme Court

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530 U.S. 793 (2000)

120 S.Ct. 2530, 147 L.Ed.2d 660, 68 U.S.L.W. 4668



HELMS et al.

Case No. 98-1648

United States Supreme Court

June 28, 2000

Argued December 1, 1999



Chapter 2 of the Education Consolidation and Improvement Act of 1981 channels federal funds via state educational agencies (SEA's) to local educational agencies (LEA's), which in turn lend educational materials and equipment, such as library and media materials and computer software and hardware, to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs. The enrollment of each participating school determines the amount of Chapter 2 aid that it receives. In an average year, about 30% of Chapter 2 funds spent in Jefferson Parish, Louisiana, are allocated for private schools, most of which are Catholic or otherwise religiously affiliated. Respondents filed suit alleging, among other things, that Chapter 2, as applied in the parish, violated the First Amendment's Establishment Clause. Agreeing, the Chief Judge of the District Court held, under Lemon v. Kurtzman, 403 U.S. 602, 612-613, that Chapter 2 had the primary effect of advancing religion because the materials and equipment loaned to the Catholic schools were direct aid and the schools were pervasively sectarian. He relied primarily on Meek v. Pittenger, 421 U.S. 349, and Wolman v. Walter, 433 U.S. 229, in which programs providing many of the same sorts of materials and equipment as does Chapter 2 were struck down, even though programs providing for the loan of public school textbooks to religious schools were upheld. After the judge issued an order permanently excluding pervasively sectarian schools in the parish from receiving any Chapter 2 materials or equipment, he retired. Another judge then reversed that order, upholding Chapter 2 under, inter alia, Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, in which a public school district was allowed to provide a sign-language interpreter to a deaf student at a Catholic high school as part of a federal program for the disabled. While respondents' appeal was pending, this Court decided Agostini v. Felton, 521 U.S. 203, approving a program under Title I of the Elementary and Secondary Education Act of 1965 that provided public employees to teach remedial classes at religious and other private schools. Concluding that Agostini had neither directly overruled Meek and Wolman nor rejected their distinction between textbooks and other in-kind aid, the Fifth Circuit relied on those two cases to invalidate Chapter 2.

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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 Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated. Pp. 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 entanglement inquiry as simply one criterion relevant to determining a statute's effect, id., at 232-233. The Court also acknowledged that its cases had pared somewhat the factors that could justify a finding of excessive entanglement. Id., at 233-234. It then set out three primary criteria for determining a statute's effect: Government aid has the effect of advancing religion if it (1) results in governmental indoctrination, (2) defines its recipients by reference to religion, or (3) creates an excessive entanglement. Ibid. In this case, the inquiry under Agostini 's purpose and effect test is a narrow one. Because the District Court's holding that Chapter 2 has a secular purpose is not challenged, only Chapter 2's effect need be considered. Further, in determining that effect, only the first two Agostini criteria need be considered, because the District Court's holding that Chapter 2 does not create an excessive entanglement is not challenged. Pp. 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 indoctrination question will resolve the question whether an educational aid program "subsidizes" religion. See id., at 230-231. In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, the Court has consistently turned to the neutrality principle, upholding aid that is offered to a broad range of groups or persons without regard to their religion. As a way of assuring neutrality, the Court has repeatedly considered whether any governmental aid to a religious institution results from the genuinely independent and private choices of individual parents, e. g., id., at 226. Agostini 's second primary criterion—whether an aid program defines its recipients by reference to religion, 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 criteria for allocating the aid create a financial incentive to undertake religious indoctrination, id., at 231. Such an incentive is not present where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Ibid. Pp. 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 distinction 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 indoctrination could be attributed to the government). If aid to schools, even "direct aid," is neutrally available and, before reaching or benefiting any religious school, first passes through the hands (literally or figuratively) of numerous private citizens who are free to direct the aid elsewhere, the government has not provided any "support of religion." Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 489. Although the presence of private choice is easier to see when aid literally passes through individuals' hands, there is no reason why the Establishment Clause requires such a form. Indeed, Agostini expressly rejected respondents' absolute line. 521 U.S., at 225. To the extent respondents intend their direct/indirect distinction to require that any aid be literally placed in schoolchildren's hands rather than given directly to their schools, Meek and Wolman, the cases on which they rely, demonstrate the irrelevance of such formalism. Further, respondents' formalistic line breaks down in the application to real-world programs. Whether a program is labeled "direct" or "indirect" is a rather arbitrary choice that does not further the constitutional analysis. See 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 Visitors 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 impermissible—is also inconsistent with the Court's more recent cases, particularly Zobrest, supra, at 18-23, and Witters, and is also unworkable. Meek and Wolman, on which respondents appear to rely for their divertibility rule, offer little, if any, support for their rule. The issue is not divertibility

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but whether the aid itself has an impermissible content. Where the aid would be suitable for use in a public school, it is also suitable for use in any private school. Similarly, the prohibition against the government providing impermissible content resolves the Establishment Clause concerns that exist if aid is actually diverted to religious uses. See, e. g., Agostini, supra, at 224-226. A concern for divertibility, as opposed to improper content, is also misplaced because it is boundless— enveloping all aid, no matter how trivial—and thus has only the most attenuated (if any) link to any realistic concern for preventing an establishment of religion. Finally, any aid, with or without content, is "divertible" in the sense that it allows schools to "divert" resources. Yet the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends. E. g., Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 658. Pp. 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 factor that has been disregarded in recent cases, e. g.,...

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