Zelman v. Simmons-Harris, 536 U.S. 639, 11 (2002)

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Cite as: 536 U. S. 639 (2002)

Opinion of the Court

or "effect" of advancing or inhibiting religion. Agostini v. Felton, 521 U. S. 203, 222-223 (1997) ("[W]e continue to ask whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the 'effect' of advancing or inhibiting religion" (citations omitted)). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden "effect" of advancing or inhibiting religion.

To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools, Mitchell v. Helms, 530 U. S. 793, 810-814 (2000) (plurality opinion); id., at 841-844 (O'Connor, J., concurring in judgment); Agostini, supra, at 225-227; Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 842 (1995) (collecting cases), and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals, Mueller v. Allen, 463 U. S. 388 (1983); Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993). While our jurisprudence with respect to the constitutionality of direct aid programs has "changed significantly" over the past two decades, Agostini, supra, at 236, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.

In Mueller, we rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tu-

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