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Mitchell v. Helms

June 28, 2000

GUY MITCHELL, ET AL., PETITIONERS V. MARY L. HELMS ET AL.


Court Below: 151 F. 3d 347

SYLLABUS BY THE COURT

OCTOBER TERM, 1999

MITCHELL v. HELMS

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

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 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, On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit

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 determining the amount of aid that it receives. The question is whether Chapter 2, as applied in Jefferson Parish, Louisiana, is a law respecting an establishment of religion, because many of the private schools receiving Chapter 2 aid in that parish are religiously affiliated. We hold that Chapter 2 is not such a law.

I.

A

Chapter 2 of the Education Consolidation and Improvement Act of 1981, Pub. L. 97-35, 95 Stat. 469, as amended, 20 U. S. C. §§7301-7373,*fn1 has its origins in the Elementary and Secondary Education Act of 1965 (ESEA), Pub. L. 89-10, 79 Stat. 27, 55, and is a close cousin of the provision of the ESEA that we recently considered in Agostini v. Felton, 521 U. S. 203 (1997). Like the provision at issue in Agostini, Chapter 2 channels federal funds to local educational agencies (LEA's), which are usually public school districts, via state educational agencies (SEA's), to implement programs to assist children in elementary and secondary schools. Among other things, Chapter 2 provides aid

"for the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials." 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 nonprofit). §§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 private 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" provided to private schools must be "secular, neutral, and nonideological." §7372(a)(1). In addition, private schools may not acquire control of Chapter 2 funds or title to Chapter 2 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 detailing which items the school seeks and how it will use them; the LEA, if it approves the application, purchases those items from the school's allocation of funds, and then lends them to that school.

In Jefferson Parish (the Louisiana governmental unit at issue in this case), as in Louisiana as a whole, private schools have primarily used their allocations for nonrecurring expenses, usually materials and equipment. 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 instructional equipment. Among the materials and equipment provided have been library books, computers, and computer software, and also slide and movie projectors, overhead projectors, television sets, tape recorders, VCR's, projection screens, laboratory equipment, maps, globes, filmstrips, slides, and cassette recordings.*fn2

It appears that, in an average year, about 30% of Chapter 2 funds spent in Jefferson Parish are allocated for private schools. For the 1985-1986 fiscal year, 41 private schools participated in Chapter 2. For the following year, 46 participated, and the participation level has remained relatively constant since then. 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, 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 recent 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 religion. 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 equipment as does Chapter 2. In 1994, after having resolved the numerous other issues in the case, he issued an order permanently 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 postjudgment motions, he reversed the decision of former Chief Judge Heebe and upheld Chapter 2, pointing to several significant 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 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 indistinguishable." 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 subsequent 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,*fn3 that "state benefits provided to all citizens without regard to religion are constitutional." 46 F. 3d, at 1465. The Ninth Circuit 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 challenges," id., at 704. The Ninth Circuit purported to distinguish 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 observed that Meek also upheld "the massive provision of textbooks 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 require a public university to exclude a student-run religious publication from assistance available to numerous other student-run publications.

Following Judge Livaudais's ruling, respondents appealed to the Court of Appeals for the Fifth Circuit. 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. In so holding, we overruled Aguilar v. Felton, 473 U. S. 402 (1985), and partially overruled 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 effort 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 educational function of religious schools is invalid," id., at 225, had rejected a premise of Meek, but that court nevertheless concluded that Agostini had neither directly overruled Meek and Wolman nor rejected their distinction between textbooks and other in-kind aid. The Fifth Circuit therefore 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 dictates that "Congress shall make no law respecting an establishment of religion." In the over 50 years since Everson, we have consistently struggled to apply these simple words in the context of governmental aid to religious schools.*fn4 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." Id., at 678 (plurality opinion); see id., 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 entanglement 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 second factors, see 521 U. S., at 222-223. We acknowledged that our cases discussing excessive entanglement had applied many of the same considerations as had our cases discussing primary effect, and we therefore recast Lemon's entanglement inquiry as simply one criterion relevant to determining a statute's effect. Agostini, supra, at 232-233. We also acknowledged 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 determining 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 currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental 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 criteria, since neither respondents nor the Fifth Circuit has questioned the District Court's holding, App. to Pet. for Cert. 108a, that Chapter 2 does not create an excessive entanglement. Considering Chapter 2 in light of our more recent case law, we conclude that it neither results in religious indoctrination by the government nor defines its recipients by reference to religion. We therefore hold that Chapter 2 is not a "law respecting an establishment of religion." In so holding, we acknowledge what both the Ninth and Fifth Circuits saw was inescapable -- Meek and Wolman are anomalies in our case law. We therefore conclude that they are no longer good law.

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 question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action. See Agostini, supra, at 226 (quoting Zobrest, 509 U. S., at 10 (presence of sign-language interpreter in Catholic school " `cannot be attributed to state decisionmaking' ") (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 Rosenberger, 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&nbhyph;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 government 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 attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts 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 indoctrination, the government itself is not thought responsible for any particular indoctrination. To put the point differently, if 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, 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 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.

As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so "only as a result of the genuinely independent and private choices of individuals." Agostini, supra, at 226 (internal quotation marks omitted). We have viewed as significant whether the "private choices of individual parents," as opposed to the "unmediated" will of government, Ball, 473 U. S., at 395, n. 13 (internal quotation marks omitted), determine what schools ultimately benefit from the governmental aid, and how much. For if numerous private choices, rather than the single choice of a government, determine the distribution of aid pursuant to neutral eligibility criteria, then a government cannot, or at least cannot easily, grant special favors that might lead to a religious establishment. Private choice also helps guarantee neutrality by mitigating the preference for pre-existing recipients that is arguably inherent in any governmental aid program, 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 non-religious ones.

The principles of neutrality and private choice, and their relationship to each other, were prominent not only in Agostini, supra, at 225-226, 228, 230-232, but also in Zobrest, Witters, and Mueller.*fn5 The heart of our reasoning in Zobrest, upholding governmental provision of a sign-language interpreter to a deaf student at his Catholic high school, was as follows:

"The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as `disabled' under the [statute], without regard to the `sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends. 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 parents. In other words, because the [statute] creates no financial incentive for parents to choose a sectarian school, an interpreter's presence there cannot be attributed to state decisionmaking." 509 U. S., at 10.

As this passage indicates, the private choices helped to ensure neutrality, and neutrality and private choices together eliminated any possible attribution to the government even when the interpreter translated classes on Catholic doctrine.

Witters and Mueller employed similar reasoning. In Witters, we held that the Establishment Clause did not bar a State from including within a neutral program providing tuition payments for vocational rehabilitation a blind person studying at a Christian college to become a pastor, missionary, or youth director. We explained:

"Any aid ... that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients. Washington's 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 education... . [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 ultimately flowing to the Inland Empire School of the Bible as resulting from a state action sponsoring or subsidizing religion." 474 U. S., at 487-488 (footnote, citations, and internal quotation marks omitted).*fn6

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 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, determined 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 generally." 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 neutrality, 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 Agostini 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 nondiscriminatory basis. Under such circumstances, the aid is less likely to have the effect of advancing religion." Ibid.

The cases on which Agostini relied for this rule, and Agostini itself, make clear the close relationship between this rule, incentives, and private choice. For to say that a program does not create an incentive to choose religious schools is to say that the private choice is truly "independent," Witters, 474 U. S., at 487. 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). 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 Chapter 2 under the Agostini test. Instead, dismissing Agostini as factually distinguishable, they offer two rules that they contend should govern our determination of whether Chapter 2 has the effect of advancing religion. They argue first, and chiefly, that "direct, nonincidental" aid to the primary educational mission of religious schools is always impermissible. Second, they argue that provision to religious schools of aid that is divertible to religious use is similarly impermissible.*fn7 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 direct and indirect aid, the purpose of this distinction was merely to prevent "subsidization" of religion, see id., at 394. As even the dissent all but admits, see post, at 22 (opinion of Souter, J.), our more recent cases address this purpose not through the direct/indirect distinction but rather through the principle of private choice, as incorporated in the first Agostini criterion (i.e., whether any indoctrination could be attributed to the government). If aid to schools, even "direct aid," is neutrally available and, before reaching or 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 10-11. Although the presence of private choice is easier to see when aid literally passes through the hands of individuals -- which is why we have mentioned directness in the same breath with private choice, see, e.g., Agostini, supra, 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 religious 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." 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 interpreter 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 interpreter 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 participate directly in religious indoctrination." See id., at 18 (Blackmun, J., dissenting). 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 public employees did not impermissibly finance religious indoctrination. 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 instruction 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, demonstrate the irrelevance of such formalism. In Meek, we justified our rejection of a program that loaned instructional materials and equipment by, among other things, pointing out that the aid was loaned to the schools, and thus was "direct 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 difference between the two programs: "[I]t would exalt form over substance if this distinction were found to justify a result different from that in Meek." 433 U. S., at 250. Wolman 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 programs 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 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).*fn8 But 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 governmental 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 permissible manner, any use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional 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 consideration 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 (Blackmun, J., dissenting) ("Until now, the Court never has authorized a public employee to participate directly in religious indoctrination"); id., at 22 ("[G]overnment crosses the boundary 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 "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 indoctrination 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 divertibility 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 strikingly 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 Zobrest and Witters approved programs that involved actual diversion. See post, at 6 (opinion concurring in judgment). The dissent likewise does not deny that Witters involved actual diversion. See post, at 30, n. 16. The dissent does claim that the aid in Zobrest "was not considered divertible," post, at 30, n. 16, but the dissent in Zobrest, which the author of today's dissent joined, understood the case otherwise. See supra, at 22. As that dissent 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 6, 23 (O'Connor, J., concurring in judgment). By that definition, the government-provided interpreter in Zobrest was not only divertible, but actually diverted.

Respondents appear to rely on Meek and Wolman to establish 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 instructional 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.*fn9 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 herself not inculcating any religious messages, no government indoctrination took place." 521 U. S., at 224 (second emphasis added). Agostini also acknowledged that what the dissenters 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 fulfilled her assigned duties, see id., at 224-225, had "no inherent religious significance," Allen, 392 U. S., at 244 (discussing 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 government computer or overhead projector does not itself inculcate a religious message, even when it is conveying one.

In Agostini itself, we approved the provision of public employees to teach secular remedial classes in private schools partly because we concluded that there was no reason to suspect that indoctrinating content would be part of such governmental aid. 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 because 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 involved in ensuring the truly secular content of the textbooks" (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 message.*fn10 Post, at 20 (O'Connor, J., concurring in judgment) (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 divertible to religious teaching purposes" because they "had a known and fixed secular content." Post, at 28.

A concern for divertibility, as opposed to improper content, is misplaced not only because it fails to explain why the sort of aid that we have allowed is permissible, but also because it is boundless -- enveloping all aid, no matter how trivial -- and thus has only the most attenuated (if any) link to any realistic concern for preventing an "establishment of religion." Presumably, for example, government-provided lecterns, chalk, crayons, pens, paper, and paintbrushes would have to be excluded from religious schools under respondents' proposed rule. But we fail to see how indoctrination by means of (i.e., diversion of) such aid could be attributed to the government. In fact, the risk of improper attribution is less when the aid lacks content, for there is no risk (as there is with books), of the government inadvertently providing improper content. See Allen, supra, at 255-262 (Douglas, J., dissenting). Finally, any aid, with or without content, is "divertible" in the sense that it allows schools to "divert" resources. 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.' " Regan, 444 U. S., at 658 (quoting Hunt v. McNair, 413 U. S. 734, 743 (1973)).

It is perhaps conceivable that courts could take upon themselves the task of distinguishing among the myriad kinds of possible aid based on the ease of diverting each kind. But it escapes us how a court might coherently draw any such line. 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 ...


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