Mitchell v. Helms, 530 U.S. 793, 95 (2000)

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888

MITCHELL v. HELMS

Souter, J., dissenting

2

We have also evaluated the portent of support to an organization's religious mission that may be inherent in the method by which aid is granted, finding pertinence in at least two characteristics of distribution. First, we have asked whether aid is direct or indirect, observing distinctions between government schemes with individual beneficiaries and those whose beneficiaries in the first instance might be religious schools. Everson, supra, at 18 (bus fare supports parents and not schools); Allen, 392 U. S., 243-244, and n. 6 (textbooks go to benefit children and parents, not schools); Lemon, supra, at 621 (invalidating direct aid to schools); Levitt, supra, at 480, 482 (invalidating direct testing aid to schools); Witters, 474 U. S., at 487-488 (evaluating whether aid was a direct subsidy to schools). Direct aid obviously raises greater risks, although recent cases have discounted this risk factor, looking to other features of the distribution mechanism. Agostini, supra, at 225-226.8

8 In Agostini, the Court indicated that "we have departed from the rule relied on in Ball that all government aid that directly assists the educational function of religious schools is invalid," 521 U. S., at 225, and cited Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), and Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993). However, Agostini did not rely on this dictum, instead clearly stating that "[w]hile it is true that individual students may not directly apply for Title I services, it does not follow from this premise that those services are distributed 'directly to the religious schools.' In fact, they are not. No Title I funds ever reach the coffers of religious schools, and Title I services may not be provided to religious schools on a schoolwide basis." 521 U. S., at 228-229 (citations omitted). Until today, this Court has never permitted aid to go directly to schools on a schoolwide basis.

The plurality misreads our precedent in suggesting that we have abandoned directness of distribution as a relevant consideration. See ante, at 815-818. In Wolman, we stated that nominally describing aid as to students would not bar a court from finding that it actually provided a subsidy to a school, 433 U. S., at 250, but we did not establish that a program giving "direct" aid to schools was therefore permissible. In Witters, we made the focus of Wolman clear, continuing to examine aid to determine

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