Cite as: 530 U. S. 793 (2000)
O'Connor, J., concurring in judgment
from resting on a divertibility rationale. Indeed, the fact that we held the statute constitutional in all other respects is more probative on the divertibility question because it demonstrates our willingness to presume that the university would abide by the secular content restriction during the years the requirement was in effect. In any event, Chapter 2 contains both a secular content restriction, 20 U. S. C. § 7372(a)(1), and a prohibition on the use of aid for religious worship or instruction, § 8897, so Tilton provides no basis for upholding respondents' challenge. Finally, our decision in Bowen proves only that actual diversion, as opposed to mere divertibility, is constitutionally impermissible. See, e. g., 487 U. S., at 621. Had we believed that the divertibility of secular aid was sufficient to call the aid program into question, there would have been no need for the remand we ordered and no basis for the reversal.
IV
Because divertibility fails to explain the distinction our cases have drawn between textbooks and instructional materials and equipment, there remains the question of which of the two irreconcilable strands of our Establishment Clause jurisprudence we should now follow. Between the two, I would adhere to the rule that we have applied in the context of textbook lending programs: To establish a First Amendment violation, plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes. See Meek, 421 U. S., at 361-362; Allen, 392 U. S., at 248. Just as we held in Agostini that our more recent cases had undermined the assumptions underlying Ball and Aguilar, I would now hold that Agostini and the cases on which it relied have undermined the assumptions underlying Meek and Wolman. To be sure, Agostini only addressed the specific presumption that public-school employees teaching on the premises of religious schools would inevitably inculcate religion. Nevertheless, I believe that our definitive rejection of that presumption also stood for—or at least strongly
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