William Hubbs Rehnquist
Sandra Day O'Connor
John Paul Stevens
David Hackett Souter
Ruth Bader Ginsburg
Stephen Gerald Breyer
Judith L. French, Assistant Attorney General of Ohio, argued the cause for petitioners in No. 00-1751. With her on the briefs were Betty D. Montgomery, Attorney General, David M. Gormley, State Solicitor, Karen L. Lazorishak, James G. Tassie, and Robert L. Strayer, Assistant Attorneys General, Kenneth W. Starr, and Robert R. Gasaway. David J. Young argued the cause for petitioners in No. 00-1777. With him on the briefs were Michael R. Reed and David J. Hessler. Clint Bolick, William H. Mellor, Richard D. Komer, Robert Freedman, David Tryon, and Charles Fried filed briefs for petitioners in No. 00-1779. Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Gregory G. Garre, Robert M. Loeb, and Lowell V. Sturgill, Jr. Robert H. Chanin argued the cause for respondents Simmons-Harris et al. in all cases. With him on the brief were Andrew D. Roth, Laurence Gold, Steven R. Shapiro, Raymond Vasvari, Elliot M. Mincberg, and Judith E. Schaeffer. Marvin E. Frankel argued the cause for respondents Gatton et al. in all cases. With him on the brief were David J. Strom, Donald J. Mooney, Jr., and Marc D. Stern. Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Thomas E. Warner, Solicitor General, and Matthew J. Conigliaro, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, M. Jane Brady of Delaware, Don Stenberg of Nebraska, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, and Randolph A. Beales of Virginia; for the State of Wisconsin by Stephen P. Hurley, Gordon P. Giampietro, and Donald A. Daugherty, Jr.; for Gary E. Johnson, Governor of New Mexico, by Jeffrey S. Bucholtz; for Mayor Rudolph W. Giuliani et al. by Michael D. Hess, Corporation Counsel of the City of New York, Leonard J. Koerner, and Edward F. X. Hart; for Councilwoman Fannie Lewis by Steffen N. Johnson, Stephen M. Shapiro, Robert M. Dow, Jr., and Richard P. Hutchison; for the American Education Reform Council by Louis R. Cohen, C. Boyden Gray, and Todd Zubler; for the American Civil Rights Union by Peter J. Ferrara; for the American Center for Law and Justice, Inc., et al. by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Vincent McCarthy, and Walter M. Weber; for the Association of Christian Schools International et al. by Edward McGlynn Gaffney, Jr., and Richard A. Epstein; for the Becket Fund for Religious Liberty by Kevin J. Hasson, Eric W. Treene, Roman P. Storzer, Anthony R. Picarello, Jr., and Richard Garnett; for the Black Alliance for Educational Options by Samuel Estreicher; for the Catholic League for Religious and Civil Rights by Robert P. George; for the Center for Education Reform et al. by Robert A. Destro and Joseph E. Schmitz; for the Center for Individual Freedom et al. by Erik S. Jaffe; for Children First America et al. by Harold J. (Tex) Lezar, Jr., and Stephen G. Gilles; for the Christian Legal Society et al. by Stuart J. Lark and Gregory S. Baylor; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Coalition for Local Sovereignty by Kenneth B. Clark; for the National Association of Independent Schools by Allen G. Siegel; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Dennis Rapps, Nathan Diament, and David Zwiebel; for the REACH Alliance by Philip J. Murren; for the Rutherford Institute by John W. Whitehead, Steven H. Aden, Robert R. Melnick, and James J. Knicely; for the Solidarity Center for Law and Justice, P. C., by James P. Kelly III; for the United States Conference of Catholic Bishops by Mark E. Chopko, John Liekweg, and Jeffrey Hunter Moon; and for Hugh Calkins, pro se. Briefs of amici curiae urging affirmance were filed for the American Jewish Committee et al. by Howard G. Kristol, Erwin Chemerinsky, Jeffrey P. Sinensky, Kara H. Stein, Arthur H. Bryant, and Victoria W. Ni; for the Anti-Defamation League by Martin E. Karlinsky, Daniel J. Beller, Steven M. Freeman, and Frederick M. Lawrence; for the Council on Religious Freedom et al. by Lee Boothby and Alan J. Reinach; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Norman J. Chachkin, Elaine R. Jones, Theodore M. Shaw, James L. Cott, Dennis D. Parker, and Dennis Courtland Hayes; for the National Committee for Public Education and Religious Liberty by Geoffrey F. Aronow and Stanley Geller; for the National School Boards Association et al. by Julie K. Underwood, Scott Bales, and James Martin; for the Ohio Association for Public Education and Religious Liberty by Patrick Farrell Timmins, Jr.; and for the Ohio School Boards Association et al. by Kimball H. Carey and Susan B. Greenberger. Briefs of amici curiae were filed for the California Alliance for Public Schools by Robin B. Johansen and Joseph Remcho; for Vermonters for Better Education by Michael D. Dean; for John E. Coons et al. by Mr. Coons, pro se, and Stephen D. Sugarman, pro se; for Jesse H. Choper et al. by Mr. Choper, pro se, William Bassett, Teresa Collett, David Forte, Richard Garnett, Lino Graglia, Michael Heise, Gail Heriot, Roderick Hills, Grant Nelson, Michael Perry, David Post, Charles Rice, Rosemary Salomone, Gregory Sisk, Steve Smith, and Harry Tepker; and for Ira J. Paul et al. by Sharon L. Browne.
Education — Higher Education Resources And Student Assistance — Student Assistance — Grants To Students In Attendance At Institutions Of Higher Education — Federal Pell Grants — Federal Pell Grants: Amount And Determinations; Applications
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- Held: The program does not offend the Establishment Clause. Pp. 648-663.
(a) Because the program was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system, the question is whether the program nonetheless has the forbidden effect of advancing or inhibiting religion. See Agostini v. Felton, 521 U.S. 203, 222-223. This Court's jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice. See, e.g., Mueller v. Allen, 463 U.S. 388. Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients not the government, whose role ends with the disbursement of benefits. Pp. 648-653.
(b) The instant program is one of true private choice, consistent with the Mueller line of cases , and thus constitutional. It is neutral in all respects toward religion, and is part of Ohio's general and multifaceted undertaking to provide educational opportunities to children in a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion and permits participation of all district schools — religious or nonreligious — and adjacent public schools. The only preference in the program is for low-income families, who receive greater assistance and have priority for admission. Rather than creating financial incentives that skew it toward religious schools, the program creates financial disincentives: Private schools receive only half the government assistance given to community schools and one-third that given to magnet schools, and adjacent public schools would receive two to three times that given to private schools. Families too have a financial disincentive, for they have to copay a portion of private school tuition, but pay nothing at a community, magnet, or traditional public school. No reasonable observer would think that such a neutral private choice program carries with it the imprimatur of government endorsement. Nor is there evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options: Their children may remain in public school as before, remain in public school with funded tutoring aid, obtain a scholarship and choose to attend a religious school, obtain a scholarship and choose to attend a nonreligious private school, enroll in a community school, or enroll in a magnet school. The Establishment Clause question whether Ohio is coercing parents into sending their children to religious schools must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a scholarship and then choose a religious school. Cleveland's preponderance of religiously affiliated schools did not result from the program, but is a phenomenon common to many American cities. Eighty-two percent of Cleveland's private schools are religious, as are 81% of Ohio's private schools. To attribute constitutional significance to the 82% figure would lead to the absurd result that a neutral school-choice program might be permissible in parts of Ohio where the percentage is lower, but not in Cleveland, where Ohio has deemed such programs most sorely needed. Likewise, an identical private choice program might be constitutional only in States with a lower percentage of religious private schools. Respondents' additional argument that constitutional significance should be attached to the fact that 96% of the scholarship recipients have enrolled in religious schools was flatly rejected in Mueller. The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school. Finally, contrary to respondents' argument, Committee for Public Ed. Religious Liberty v. Nyquist, 413 U.S. 756 — a case that expressly reserved judgment on the sort of program challenged here — does not govern neutral educational assistance programs that offer aid directly to a broad class of individuals defined without regard to religion. Pp. 653-663.234 F.3d 945, reversed.Go to
- Nor does today's decision signal a major departure from this Court's prior Establishment Clause jurisprudence. A central tool in our analysis of cases in this area has been the Lemon test. As originally formulated, a statute passed this test only if it had "a secular legislative purpose," if its "principal or primary effect" was one that "neither advance[d] nor inhibit[ed] religion," and if it did "not foster an excessive government entanglement with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) (internal quotation marks omitted). In Agostini v. Felton, 521 U.S. 203, 218, 232-233 (1997), we folded the entanglement inquiry into the primary effect inquiry. This made sense because both inquiries rely on the same evidence, see ibid., and the degree of entanglement has implications for whether a statute advances or inhibits religion, see Lynch v. Donnelly, 465 U.S. 668, 688 (1984) ( O'Connor, J., concurring). The test today is basically the same as that set forth in School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222 (1963) (citing Eversonv. Board of Ed. of Ewing, 330 U.S. 1 (1947); McGowan v. Maryland, 366 U.S. 420, 442 (1961)), over 40 years ago.Go to
- Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits. As a plurality of this Court recently observed:Go to
- Respondents suggest that even without a financial incentive for parents to choose a religious school, the program creates a "public perception that the State is endorsing religious practices and beliefs." Brief for Respondents Simmons-Harris et al. 37-38. But we have repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. Mueller, 463 U.S., at 399; Witters, supra, at 488-489; Zobrest, supra, at 10-11; e.g., Mitchell, supra, at 842-843 ( O'Connor, J., concurring in judgment) ("In terms of public perception, a government program of direct aid to religious schools . . . differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools"). The argument is particularly misplaced here since "the reasonable observer in the endorsement inquiry must be deemed aware" of the "history and context" underlying a challenged program. Good News Club v. Milford Central School, 533 U.S. 98, 119 (2001) (internal quotation marks omitted). See also Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) ( O'Connor, J., concurring in part and concurring in judgment). Any objective observer familiar with the full history and context of the Ohio program would reasonably view it as one aspect of a broader undertaking to assist poor children in failed schools, not as an endorsement of religious schooling in general.Go to
- The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the "purpose" or "effect" of advancing or inhibiting religion. Agostini v. Felton, 521 U.S. 203, 222-223 (1997) ("[W]e continue to 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" (citations omitted)). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion.Go to
- The Fourteenth Amendment fundamentally restructured the relationship between individuals and the States and ensured that States would not deprive citizens of liberty without due process of law. It guarantees citizenship to all individuals born or naturalized in the United States and provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As Justice Harlan noted, the Fourteenth Amendment "added greatly to the dignity and glory of American citizenship, and to the security of personal liberty." Plessy v. Ferguson, 163 U.S. 537, 555 (1896) (dissenting opinion). When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty.Go to
- In July 1999, respondents filed this action in United States District Court, seeking to enjoin the reenacted program on the ground that it violated the Establishment Clause of the United States Constitution. In August 1999, the District Court issued a preliminary injunction barring further implementation of the program, 54 F. Supp.2d 725 (N.D.Ohio.), which we stayed pending review by the Court of Appeals, 528 U.S. 983 (1999). In December 1999, the District Court granted summary judgment for respondents. 72 F. Supp.2d 834. In December 2000, a divided panel of the Court of Appeals affirmed the judgment of the District Court, finding that the program had the "primary effect" of advancing religion in violation of the Establishment Clause. 234 F.3d 945 (CA6). The Court of Appeals stayed its mandate pending disposition in this Court. App. to Pet. for Cert. in No. 00-1779, p. 151. We granted certiorari, 533 U.S. 976 (2001), and now reverse the Court of Appeals.Go to
- The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion." On its face, this provision places no limit on the States with regard to religion. The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government. Whether and how this Clause should constrain state action under the Fourteenth Amendment is a more difficult question.Go to
- To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, Mitchell v. Helms, 530 U.S. 793, 810-814 (2000) (plurality opinion); id., at 841-844 ( O'Connor, J., concurring in judgment); Agostini, supra, at 225-227; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 842 (1995) (collecting cases), and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993). While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, Agostini, supra, at 236, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.Go to
- Ohio's Pilot Project Scholarship Program gives educational choices to families in any Ohio school district that is under state control pursuant to a federal-court order. The program provides tuition aid for certain students in the Cleveland City School District, the only covered district, to attend participating public or private schools of their parent's choosing and tutorial aid for students who choose to remain enrolled in public school. Both religious and nonreligious schools in the district may participate, as may public schools in adjacent school districts. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. The number of tutorial assistance grants provided to students remaining in public school must equal the number of tuition aid scholarships. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation, none of the adjacent public schools participated, and 96% of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. Cleveland schoolchildren also have the option of enrolling in community schools, which are funded under state law but run by their own school boards and receive twice the per-student funding as participating private schools, or magnet schools, which are public schools emphasizing a particular subject area, teaching method, or service, and for which the school district receives the same amount per student as it does for a student enrolled at a traditional public school. Respondents, Ohio taxpayers, sought to enjoin the program on the ground that it violated the Establishment Clause. The Federal District Court granted them summary judgment, and the Sixth Circuit affirmed.Go to
- There are no "financial incentive[s]" that "ske[w]" the program toward religious schools. Witters, supra, at 487-488. Such incentives "[are] 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." Agostini, supra, at 231. The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school's tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. Although such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program "creates . . . financial incentive[s] for parents to choose a sectarian school." Zobrest, 509 U.S., at 10.Go to
- There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.Go to
- The First Amendment begins with a prohibition, that "Congress shall make no law respecting an establishment of religion," and a guarantee, that the government shall not prohibit "the free exercise thereof." These Clauses embody an understanding, reached in the 17th century after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens, permits those citizens to "worship God in their own way," and allows all families to "teach their children and to form their characters" as they wish. C. Radcliffe, The Law Its Compass 71 (1960). The Clauses reflect the Framers' vision of an American Nation free of the religious strife that had long plagued the nations of Europe. See, e.g., Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969) (religious strife was "one of the principal evils that the first amendment sought to forestall"); B. Kosmin S. Lachman, One Nation Under God: Religion in Contemporary American Society 24 (1993) ( First Amendment designed in "part to prevent the religious wars of Europe from entering the United States"). Whatever the Framers might have thought about particular 18th-century school funding practices, they undeniably intended an interpretation of the Religion Clauses that would implement this basic First Amendment objective.Go to
- JUSTICE SOUTER speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. Post, at 19-22 (dissenting opinion). But Cleveland's preponderance of religiously affiliated private schools certainly did not arise as a result of the program; it is a phenomenon common to many American cities. See U.S. Dept. of Ed., National Center for Education Statistics, Private School Universe Survey: 1999-2000, pp. 2-4 (NCES 2001-330, 2001) (hereinafter Private School Universe Survey) (cited in Brief for United States as Amicus Curiae 24). Indeed, by all accounts the program has captured a remarkable cross-section of private schools, religious and nonreligious. It is true that 82% of Cleveland's participating private schools are religious schools, but it is also true that 81% of private schools in Ohio are religious schools. See Brief for State of Florida et al. as Amici Curiae 16 (citing Private School Universe Survey). To attribute constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school-choice program might be permissible in some parts of Ohio, such as Columbus, where a lower percentage of private schools are religious schools, see Ohio Educational Directory (Lodging of Respondents Gatton et al., available in Clerk of Court's case file), and Reply Brief for Petitioners in No. 00-1751, p. 12, n. 1, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens to be greater. Cf. Brief for State of Florida et al. as Amici Curiae 17 ("[T]he percentages of sectarian to nonsectarian private schools within Florida's 67 school districts . . . vary from zero to 100 percent"). Likewise, an identical private choice program might be constitutional in some States, such as Maine or Utah, where less than 45% of private schools are religious schools, but not in other States, such as Nebraska or Kansas, where over 90% of private schools are religious schools. Id., at 15-16 (citing Private School Universe Survey).Go to
- Respondents finally claim that we should look to Committee for Public Ed. Religious Liberty v. Nyquist, 413 U.S. 756 (1973), to decide these cases. We disagree for two reasons. First, the program in Nyquist was quite different from the program challenged here. Nyquist involved a New York program that gave a package of benefits exclusively to private schools and the parents of private school enrollees. Although the program was enacted for ostensibly secular purposes, id., at 773-774, we found that its "function" was " unmistakably to provide desired financial support for nonpublic, sectarian institutions," id., at 783 (emphasis added). Its genesis, we said, was that private religious schools faced "increasingly grave fiscal problems." Id., at 795. The program thus provided direct money grants to religious schools. Id., at 762-764. It provided tax benefits "unrelated to the amount of money actually expended by any parent on tuition," ensuring a windfall to parents of children in religious schools. Id., at 790. It similarly provided tuition reimbursements designed explicitly to "offe[r] . . . an incentive to parents to send their children to sectarian schools." Id., at 786. Indeed, the program flatly prohibited the participation of any public school, or parent of any public school enrollee. Id., at 763-765. Ohio's program shares none of these features.Go to
- The Court's opinion in these cases focuses on a narrow question related to the Lemon test: how to apply theprimary effects prong in indirect aid cases? Specifically, it clarifies the basic inquiry when trying to determine whether a program that distributes aid to beneficiaries, rather than directly to service providers, has the primary effect of advancing or inhibiting religion, Lemon v. Kurtzman, supra, at 613-614, or, as I have put it, of "endors[ing] or disapprov[ing] . . . religion," Lynch v. Donnelly, supra, at 691-692 (concurring opinion); see also Wallace v. Jaffree, 472 U.S. 38, 69-70 (1985) ( O'Connor, J., concurring in judgment). See also ante, at 10. Courts are instructed to consider two factors: first, whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services; second, and more importantly, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. If the answer to either query is "no," the program should be struck down under the Establishment Clause. See ante, at 10-11.Go to
- Allen recognized the reality that "religious schools pursue two goals, religious instruction and secular education," 392 U.S., at 245; if state aid could be restricted to serve the second, it might be permissible under the Establishment Clause. But in the retrenchment that followed, the Court saw that the two educational functions were so intertwined in religious primary and secondary schools that aid to secular education could not readily be segregated, and the intrusive monitoring required to enforce the line itself raised Establishment Clause concerns about the entanglement of church and state. See Lemon v. Kurtzman, 403 U.S. 602, 620 (1971) (striking down program supplementing salaries for teachers of secular subjects in private schools). To avoid the entanglement, the Court's focus in the post- Allen cases was on the principle of divertibility, on discerning when ostensibly secular government aid to religious schools was susceptible to religious uses. The greater the risk of diversion to religion (and the monitoring necessary to avoid it), the less legitimate the aid scheme was under the no-aid principle. On the one hand, the Court tried to be practical, and when the aid recipients were not so "pervasively sectarian" that their secular and religious functions were inextricably intertwined, the Court generally upheld aid earmarked for secular use. See, e.g., Roemer v. Board of Public Works of Md., 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S. 734 (1973); Tilton v. Richardson, 403 U.S. 672 (1971). But otherwise the principle of nondivertibility was enforced strictly, with its violation being presumed in most cases, even when state aid seemed secular on its face. Compare, e.g., Levitt v. Committee for Public Ed. Religious Liberty, 413 U.S. 472, 480 (1973) (striking down state program reimbursing private schools' administrative costsfor teacher-prepared tests in compulsory secular subjects), with Wolman v. Walter, 433 U.S. 229, 255 (1977) (upholding similar program using standardized tests); and Meek v. Pittenger, 421 U.S. 349, 369-372 (1975) (no public funding for staff and materials for "auxiliary services" like guidance counseling and speech and hearing services), with Wolman, supra, at 244 (permitting state aid for diagnostic speech, hearing, and psychological testing).Go to
- My own course as a judge on the Court cannot, however, simply be to hope that the political branches will save us from the consequences of the majority's decision. Everson's statement is still the touchstone of sound law, even though the reality is that in the matter of educational aid the Establishment Clause has largely been read away. True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today's dramatic departure from basic Establishment Clause principle.Go to
- In part for this reason, the Court's 20th-century Establishment Clause cases — both those limiting the practice of religion in public schools and those limiting the public funding of private religious education — focused directly upon social conflict, potentially created when government becomes involved in religious education. In Engel v. Vitale, 370 U.S. 421 (1962), the Court held that the Establishment Clause forbids prayer in public elementary and secondary schools. It did so in part because it recognized the "anguish, hardship and bitter strife that could come when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval. . . ." Id., at 429. And it added:Go to
- That the program was one of true private choice, with no evidence that the State deliberately skewed incentives toward religious schools, was sufficient for the program to survive scrutiny under the Establishment Clause.Go to
"[I]f 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." Mitchell, 530 U.S., at 810.Go to
- See also id., at 843 ( O'Connor, J., concurring in judgment) ("[W]hen government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, `no reasonable observer is likely to draw from the facts . . . an inference that the State itself is endorsing a religious practice or belief'" (quoting Witters, 474 U.S., at 493 ( O'Connor, J., concurring in part and concurring in judgment ))). It is precisely for these reasons that we have never found a program of true private choice to offend the Establishment Clause.Go to
- Respondents and Justice Souter claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools. Indeed, we have recently found it irrelevant even to the constitutionality of a direct aid program that a vast majority of program benefits went to religious schools. See Agostini, 521 U.S., at 229 ("Nor are we 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" (citing Mueller, 463 U.S., at 401)); see also Mitchell, 530 U.S., at 812, n. 6 (plurality opinion) ("[ Agostini] held that the proportion of aid benefiting students at religious schools pursuant to a neutral program involving private choices was irrelevant to the constitutional inquiry"); id., at 848 ( O'Connor, J., concurring in judgment) (same) (quoting Agostini, supra, at 229). The constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school. As we said in Mueller, "[s]uch an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated." 463 U.S., at 401. Go to
- Second, were there any doubt that the program challenged in Nyquist is far removed from the program challenged here, we expressly reserved judgment with respect to "a case involving some form of public assistance ( e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited." Id., at 782-783, n. 38. That, of course, is the very question now before us, and it has since been answered, first in Mueller, 463 U.S., at 398-399 ("[A] program . . . that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause" (citing Nyquist, supra, at 782-783, n. 38)), then in Witters, 474 U.S., at 487 ("Washington's program is `made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited'" (quoting Nyquist, supra, at 782-783, n. 38)), and again in Zobrest, 509 U.S., at 12-13 ("[T]he function of the [program] is hardly `to provide desired financial support for nonpublic, sectarian institutions'" (quoting Nyquist, supra, at 782-783, n. 38)). To the extent the scope of Nyquist has remained an open question in light of these later decisions, we now hold that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.Go to
- In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.Go to
- These tax exemptions, which have "much the same effect as [cash grants] . . . of the amount of tax [avoided]," Regan v. Taxation With Representation of Wash., 461U.S. 540, 544 (1983); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 859-860, esp. n. 4 (1995) ( Thomas, J., concurring), are just part of the picture. Federal dollars also reach religiously affiliated organizations through public health programs such as Medicare, 42 U.S.C. § 1395-1395ggg and Medicaid, § 1396 et seq., through educational programs such as the Pell Grant program,