Mitchell v. Helms, 530 U.S. 793, 96 (2000)

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

Souter, J., dissenting

Second, we have distinguished between indirect aid that reaches religious schools only incidentally as a result of numerous individual choices and aid that is in reality directed to religious schools by the government or in practical terms selected by religious schools themselves. Mueller, 463 U. S., at 399; Witters, supra, at 488; Zobrest, supra, at 10. In these cases, we have declared the constitutionality of programs providing aid directly to parents or students as tax deductions or scholarship money, where such aid may pay for education at some sectarian institutions, Mueller, supra, at 399; Witters, 474 U. S., at 488, but only as the result of "genuinely independent and private choices of aid recipients," id., at 487. We distinguished this path of aid from the route in Ball and Wolman, where the opinions indicated that "[w]here . . . no meaningful distinction can be made between aid to the student and aid to the school, the concept of a loan to individuals is a transparent fiction." 474 U. S., at 487, n. 4 (citations and internal quotation marks omitted).9

3

In addition to the character of the school to which the benefit accrues, and its path from government to school, a number of features of the aid itself have figured in the classificaif it was a "direct subsidy" to a school, 474 U. S., at 487, and distinguishing the aid at issue from impermissible aid in Ball and Wolman precisely because the designation of the student as recipient in those cases was only nominal. 474 U. S., at 487, n. 4. Our subsequent cases have continued to ask whether government aid programs constituted impermissible "direct subsidies" to religious schools even where they are directed by individual choice. Zobrest, supra, at 11-13; Mueller v. Allen, 463 U. S. 388, 399 (1983); Agostini, supra, at 226.

9 We have also permitted the government to supply students with public-employee translators, Zobrest, supra, at 10, and public-employee special education teachers, Agostini, supra, at 226, 228, who directly provided them with government services in whatever schools those specific students attended, public or nonpublic. I have already noted Agostini's limitations. See n. 8, supra.

889

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