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Background Information

Chapter 2 of the Education Consolidation and Improvement Act of 1981 gave federal funds via state educational agencies to local educational agencies, which in turn, lent educational materials and equipment (library and media materials and computer software and hardware, etc.) to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs.

In an average year, about 30% of Chapter 2 funds spent in Jefferson Parish, Louisiana, were allocated for private schools, most of which were Catholic or otherwise religious. Taxpayers filed suit arguing that this violated the First Amendment's Establishment Clause.

Lee Boothby, representing parents who opposed the parochial aid program in Louisiana, said the issue at stake was "our historic commitment that taxpayers not be required to subsidize religious schools."

Court Decision

Voting 6-3, the Court found that the program was indeed Constitutional and that aid could continue to flow to religious schools. However, the there was no majority opinion, only a plurality of 4 with 2 justices concurring in part.

The Court used the two relevant criteria of the Lemon Test: (1) does the program have a secular purpose? (2) does the program have a primary effect of advancing or inhibiting religion? The third criterion of the Lemon Test (does the program create an excessive entanglement between government and religion) was held in Agnostini v. Felton not to be relevant when evaluating aid to religious schools. Thus, the decision for whether or not such aid is permissible is narrowly based:

As we indicated in Agostini, and have indicated elsewhere, the question whether governmental aid to religious schools results in governmental indoctrination is ultimately a question whether any religious indoctrination that occurs in those schools could reasonably be attributed to governmental action.

First, the government action does not result in government advancing religion. Eligibility for the aid is determined neutrally, regardless of the religious affiliation of the schools. The aid itself is distributed based on the private choices of the students and their parents, ruling out any characterization of the aid as 'direct.' Moreover, the aid itself does not have an impermissible content.

In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination.

Second, the government action does not define its recipients by reference to religion; the aid is allocated on the basis of neutral and secular criteria.

Justices Souter, Stevens and Ginsburg dissented from this decision, with Souter explaining the reasoning as being the fact that the aid to religious schools under consideration here could be used to further religious ends, and that this is not something which the government is allowed to help.

Souter especially dissented from the decision's use of the concept of "neutrality." As Souter describes it, this term was originally used in Court decisions as a description of how the government treated religion - neither with favor nor with malice. Recently, however, it has been transformed to mean something quite different - now, it means treating all religions equally, not favoring any more than any other but permitting general favoritism. Souter disagreed that evenhandedness in aid to religion is sufficient to allow a government program to be constitutional.

The insufficiency of evenhandedness neutrality as a stand-alone criterion of constitutional intent or effect has been clear from the beginning of our interpretative efforts, for an obvious reason. Evenhandedness in distributing a benefit approaches the equivalence of constitutionality in this area only when the term refers to such universality of distribution that it makes no sense to think of the benefit as going to any discrete group. Conversely, when evenhandedness refers to distribution to limited groups within society, like groups of schools or schoolchildren, it does make sense to regard the benefit as aid to the recipients.

Hence, if we looked no further than evenhandedness, and failed to ask what activities the aid might support, or in fact did support, religious schools could be blessed with government funding as massive as expenditures made for the benefit of their public school counterparts, and religious missions would thrive on public money.

The possibility of the aid being diverted doesn't matter in the final decision. Indeed, the plurality readily recognizes that the aid in question here was divertible and that substantial evidence of actual diversion exists.


This decision effectively overruled Meek v. Pittenger, and Wolman v. Walter, to the extent those decisions conflicted with its chosen analysis in this case. Both of those cases invalidated aid in the form of instructional materials to sectarian schools.

The Court decision that aid to religious groups can be made so long as it furthers some legitimate secular purpose and is granted in the same manner to non-religious groups would allow for the government financing of religious agendas on a massive scale.

Because this is was a plurality rather than a majority deicision, it has no authority as legal precedent. However, the opinions do point out where we are likely to go. If this decision holds, it won't matter if religion is aided, so long as all religions are aided equally.

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