Mitchell v. Helms, 530 U.S. 793, 25 (2000)

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818

MITCHELL v. HELMS

Opinion of Thomas, J.

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

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