Mitchell v. Helms, 530 U.S. 793, 100 (2000)

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Cite as: 530 U. S. 793 (2000)

Souter, J., dissenting

public tax dollars directly to primary or secondary religious educational institutions"), overruled in part by Agostini, supra, at 236; Witters, 474 U. S., at 487 ("It is equally well-settled . . . that the State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is that of a direct subsidy to the religious school" (internal quotation marks and citations omitted)); Rosenberger, supra, at 851-852 (O'Connor, J., concurring) (noting that student fee was not a tax).

Divertibility is not, of course, a characteristic of cash alone, and when examining provisions for ostensibly secular supplies we have considered their susceptibility to the service of religious ends.13 In upholding a scheme to provide students with secular textbooks, we emphasized that "each book loaned must be approved by the public school authorities; only secular books may receive approval." Allen, 392 U. S., at 244-245; see also Meek, 421 U. S., at 361-362 (opinion of Stewart, J.); Wolman, supra, at 237-238. By the same token, we could not sustain provisions for instructional materials adaptable to teaching a variety of subjects.14 Meek, supra, at 363; Wolman, supra, at 249-250. While the textbooks had a known and fixed secular content not readily di-13 I reject the plurality's argument that divertibility is a boundless principle. Ante, at 824-825. Our long experience of evaluating this consideration demonstrates its practical limits. See infra this page and 894-895. Moreover, the Establishment Clause charges us with making such enquiries, regardless of their difficulty. See supra, at 875-878, 884-885. Finally, the First Amendment's rule permitting only aid with fixed secular content seems no more difficult to apply than the plurality's rule prohibiting only aid with fixed religious content.

14 Contrary to the plurality's apparent belief, Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993), sheds no light on the question of divertibility and school aid. Ante, at 822, n. 9. The Court in that case clearly distinguished the question of afterschool access to public facilities from anything resembling the school aid cases: "The showing of this film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members." 508 U. S., at 395.

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