Mitchell v. Helms, 530 U.S. 793, 2 (2000)

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

Syllabus

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 diverti-

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