Cite as: 536 U. S. 639 (2002)
Souter, J., dissenting
id., at 787-788, which could presumably be matched to a secular 15% of a child's education at the school. And it rejected the idea that the path of state aid to religious schools might be dispositive: "far from providing a per se immunity from examination of the substance of the State's program, the fact that aid is disbursed to parents rather than to the schools is only one among many factors to be considered." Id., at 781. The point was that "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions." Id., at 783.5 Nyquist thus held that aid to parents through tax deductions was no different from forbidden direct aid to religious schools for religious uses. The focus remained on what the public money bought when it reached the end point of its disbursement.
C
Like all criteria requiring judicial assessment of risk, divertibility is an invitation to argument, but the object of the arguments provoked has always been a realistic assessment of facts aimed at respecting the principle of no aid. In Mueller v. Allen, 463 U. S. 388 (1983), however, that object began to fade, for Mueller started down the road from realism to formalism.
5 The Court similarly rejected a path argument in Wolman v. Walter, 433 U. S. 229 (1977), overruled by Mitchell v. Helms, 530 U. S. 793 (2000), where the State sought to distinguish Meek v. Pittenger, 421 U. S. 349 (1975), overruled by Mitchell, supra, based on the fact that, in Meek, the State had lent educational materials to individuals rather than to schools. "Despite the technical change in legal bailee," the Court explained, "the program in substance is the same as before," and "it would exalt form over substance if this distinction were found to justify a result different from that in Meek." Wolman, supra, at 250. Conversely, the Court upheld a law reimbursing private schools for state-mandated testing, dismissing a proffered distinction based on the indirect path of aid in an earlier case as "a formalistic dichotomy that bears . . . little relationship either to common sense or to the realities of school finance." Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 658 (1980).
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