Zelman v. Simmons-Harris, 536 U.S. 639, 24 (2002)

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Opinion of the Court

then in Witters, 474 U. S., at 487 ("Washington's program is 'made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited' " (quoting Nyquist, supra, at 782-783, n. 38)), and again in Zobrest, 509 U. S., at 12-13 ("[T]he function of the [program] is hardly 'to provide desired financial support for nonpublic, sectarian institutions' " (quoting Nyquist, supra, at 782-783, n. 38)). To the extent the scope of Nyquist has remained an open question in light of these later decisions, we now hold that Nyquist does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion.7

In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of

7 Justice Breyer would raise the invisible specters of "divisiveness" and "religious strife" to find the program unconstitutional. Post, at 719, 725-728 (dissenting opinion). It is unclear exactly what sort of principle Justice Breyer has in mind, considering that the program has ignited no "divisiveness" or "strife" other than this litigation. Nor is it clear where Justice Breyer would locate this presumed authority to deprive Cleveland residents of a program that they have chosen but that we subjectively find "divisive." We quite rightly have rejected the claim that some speculative potential for divisiveness bears on the constitutionality of educational aid programs. Mitchell v. Helms, 530 U. S., at 825 (plurality opinion) ("The dissent resurrects the concern for political divisiveness that once occupied the Court but that post-Aguilar cases have rightly disregarded") (citing cases); id., at 825-826 (" 'It is curious indeed to base our interpretation of the Constitution on speculation as to the likelihood of a phenomenon which the parties may create merely by prosecuting a lawsuit' " (quoting Aguilar v. Felton, 473 U. S. 402, 429 (1985) (O'Connor, J., dissenting))).

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