OCTOBER TERM, 2001

Syllabus

ZELMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF OHIO, ET AL.v.

SIMMONS-HARRIS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTHCIRCUIT

No.00-1751. Argued February 20, 2002-Decided June 27, 2002*

Ohio's Pilot Project Scholarship Program gives educationalchoices to families in any Ohio school district that is under statecontrol pursuant to a federal-court order. The program providestuition aid for certain students in the Cleveland City SchoolDistrict, the only covered district, to attend participating publicor private schools of their parent's choosing and tutorial aid forstudents who choose to remain enrolled in public school. Bothreligious and nonreligious schools in the district may participate,as may public schools in adjacent school districts. Tuition aid isdistributed to parents according to financial need, and where theaid is spent depends solely upon where parents choose to enrolltheir children. The number of tutorial assistance grants providedto students remaining in public school must equal the number oftuition aid scholarships. In the 1999-2000 school year, 82% of theparticipating private schools had a religious affiliation, none ofthe adjacent public schools participated, and 96% of the studentsparticipating in the scholarship program were enrolled inreligiously affiliated schools. Sixty percent of the students werefrom families at or below the poverty line. Clevelandschoolchildren also have the option of enrolling in communityschools, which are funded under state law but run by their ownschool boards and receive twice the per-student funding asparticipating private schools, or magnet schools, which are publicschools emphasizing a particular subject area, teaching method, orservice, and for which the school district receives the same amountper student as it does for a student enrolled at a traditionalpublic school. Respondents, Ohio taxpayers, sought to enjoin theprogram on the ground that it violated the Establishment Clause.The Federal District Court granted them summary judgment, and theSixth Circuit affirmed.

Held: The program does not offend the EstablishmentClause.

Pp. 648-663.

*Together with No. 00-1777, Hanna Perkins School et al. v.SimmonsHarris et al., and No. 00-1779, Taylor et al. v.Simmons-Harris et al., also on certiorari to the same court.

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Syllabus

(a) Because the program was enacted for the valid secularpurpose of providing educational assistance to poor children in ademonstrably failing public school system, the question is whetherthe program nonetheless has the forbidden effect of advancing orinhibiting religion. SeeAgostini v.Felton,521 U. S. 203, 222-223.This Court's jurisprudence makes clear that a government aidprogram is not readily subject to challenge under the EstablishmentClause if it is neutral with respect to religion and providesassistance directly to a broad class of citizens who, in turn,direct government aid to religious schools wholly as a result oftheir own genuine and independent private choice. See,e.g.,Mueller v.Allen,463 U. S. 388. Under sucha program, government aid reaches religious institutions only byway of the deliberate choices of numerous individual recipients.The incidental advancement of a religious mission, or the perceivedendorsement of a religious message, is reasonably attributable tothe individual aid recipients, not the government, whose role endswith the disbursement of benefits. Pp. 648-653.

(b) The instant program is one of true private choice,consistent with theMueller line of cases, and thusconstitutional. It is neutral in all respects toward religion, andis part of Ohio's general and multifaceted undertaking to provideeducational opportunities to children in a failed school district.It confers educational assistance directly to a broad class ofindividuals defined without reference to religion and permitsparticipation of all district schools-religious or nonreligious-andadjacent public schools. The only preference in the program is forlowincome families, who receive greater assistance and havepriority for admission. Rather than creating financial incentivesthat skew it toward religious schools, the program createsfinancial disincentives: Private schools receive only half thegovernment assistance given to community schools and one-third thatgiven to magnet schools, and adjacent public schools would receivetwo to three times that given to private schools. Families too havea financial disincentive, for they have to copay a portion ofprivate school tuition, but pay nothing at a community, magnet, ortraditional public school. No reasonable observer would think thatsuch a neutral private choice program carries with it theimprimatur of government endorsement. Nor is there evidencethat the program fails to provide genuine opportunities forCleveland parents to select secular educational options: Theirchildren may remain in public school as before, remain in publicschool with funded tutoring aid, obtain a scholarship and choose toattend a religious school, obtain a scholarship and choose toattend a nonreligious private school, enroll in a community school,or enroll in a magnet school. The Establishment Clause questionwhether Ohio is coercing parents into sending their children toreligious schools must be answered by evaluatingalloptions

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Ohio provides Cleveland schoolchildren, only one of which is toobtain a scholarship and then choose a religious school.Cleveland's preponderance of religiously affiliated schools did notresult from the program, but is a phenomenon common to manyAmerican cities. Eighty-two percent of Cleveland's private schoolsare religious, as are 81% of Ohio's private schools. To attributeconstitutional significance to the 82% figure would lead to theabsurd result that a neutral school-choice program might bepermissible in parts of Ohio where the percentage is lower, but notin Cleveland, where Ohio has deemed such programs most sorelyneeded. Likewise, an identical private choice program might beconstitutional only in States with a lower percentage of religiousprivate schools. Respondents' additional argument thatconstitutional significance should be attached to the fact that 96%of the scholarship recipients have enrolled in religious schoolswas flatly rejected inMueller. The constitutionality of aneutral educational aid program simply does not turn on whether andwhy, in a particular area, at a particular time, most privateschools are religious, or most recipients choose to use the aid ata religious school. Finally, contrary to respondents' argument,Committee for Public Ed. &Religious Liberty v.Nyquist,413U. S. 756-a case that expressly reserved judgment on the sortof program challenged here-does not govern neutral educationalassistance programs that offer aid directly to a broad class ofindividuals defined without regard to religion. pp. 653-663.

234 F.3d945, reversed.

REHNQUIST, C. J., delivered the opinion of the Court, in whichO'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J.,post, p. 663, and THOMAS, J.,post, p. 676, filedconcurring opinions. STEVENS, J., filed a dissenting opinion,post, p. 684. SOUTER, J., filed a dissenting opinion, inwhich STEVENS, GINSBURG, and BREYER, JJ., joined,post, p.686. BREYER, J., filed a dissenting opinion, in which STEVENS andSouTER, JJ., joined,post, p. 717.

Judith L. French, Assistant Attorney General of Ohio,argued the cause for petitioners in No. 00-1751. With her on thebriefs wereBetty D. Montgomery, Attorney General,DavidM. Gormley, State Solicitor,Karen L. Lazorishak, JamesG.Tassie, andRobert L. Strayer, Assistant AttorneysGeneral,Kenneth W Starr, andRobert R. Gasaway.DavidJ.Young argued the cause for petitionersin No. 00-1777. With him on the briefs wereMichael R. ReedandDavid

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Counsel

J. Hessler. Clint Bolick, William H. Mellor, Richard D.Komer, Robert Freedman, David Tryon, and Charles Fried filed briefsfor petitioners in No. 00-1779.

Solicitor General Olson argued the cause for the United Statesas amicus curiae urging reversal. With him on the brief wereAssistant Attorney General McCallum, Deputy Solicitor GeneralKneedler, Gregory G. Garre, Robert M. Loeb, and Lowell v: Sturgill,Jr.

Robert H. Chanin argued the cause for respondents Simmons-Harris et al. in all cases. With him on the brief were Andrew D.Roth, Laurence Gold, Steven R. Shapiro, Raymond Vasvari, Elliot M.Mincberg, and Judith E. Schaeffer. Marvin E. Frankel argued thecause for respondents Gatton et al. in all cases. With him on thebrief were David J. Strom, Donald J. Mooney, Jr., and Marc D.Stern.t

tBriefs ofamici curiae urging reversal were filed forthe State of Florida et al. byRobert A. Butterworth,Attorney General of Florida,Thomas E. Warner, SolicitorGeneral, andMatthewJ.Conigliaro, DeputySolicitor General, and by the Attorneys General for theirrespective States as follows:Bill Pryor of Alabama,M.Jane Brady of Delaware,Don Stenberg of Nebraska,D.Michael Fisher of Pennsylvania,Charles M. Condon ofSouth Carolina, andRandolph A. Beales of Virginia; for theState of Wisconsin byStephen P. Hurley, Gordon P.Giampietro, andDonald A. Daugherty, Jr.; for Gary E.Johnson, Governor of New Mexico, byJeffrey S.Bucholtz; for Mayor Rudolph W. Giuliani et al. byMichaelD. Hess, Corporation Counsel of the City of New York,LeonardJ.Koerner, andEdward F.X.Hart; for Councilwoman Fannie Lewis bySteffen N Johnson,Stephen M. Shapiro, Robert M. Dow, Jr., andRichard P.Hutchison; for the American Education Reform Council byLouis R. Cohen, C.Boyden Gray, andToddZubler; for the American Civil Rights Union byPeterJ.Ferrara; for the American Center for Law andJustice, Inc., et al. byJay Alan Sekulow, James M. Henderson,Sr., Colby M. May, Vincent McCarthy, andWalter M.Weber; for the Association of Christian Schools Internationalet al. byEdward McGlynn Gaffney, Jr., andRichard A.Epstein; for the Becket Fund for Religious Liberty byKevinJ.Hasson, Eric W Treene, Roman P. Storzer,Anthony R. Picarello, Jr., andRichard Garnett; for theBlack Alliance for Educational Options bySamuel Estreicher;for the Catholic League for Religious and Civil Rights byRobertP. George; for the Center for Education Reform et al. byRobert A. Destro

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CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

The State of Ohio has established a pilot program designed toprovide educational choices to families with children who

andJoseph E. Schmitz; for the Center for IndividualFreedom et al. byErik S.Jaffe; for Children FirstAmerica et al. byHaroldJ.(Tex) Lezar, Jr.,andStephen G.Gilles; for the Christian LegalSociety et al. byStuartJ.Lark andGregory S.Baylor; for the Claremont Institute Centerfor Constitutional Jurisprudence byEdwin Meese III; for theCoalition for Local Sovereignty byKenneth B. Clark; for theNational Association of Independent Schools byAllen G.Siegel; for the National Jewish Commission on Law and PublicAffairs byNathan Lewin, Dennis Rapps, Nathan Diament, andDavid Zwiebel; for the REACH Alliance byPhilipJ.Murren; for the Rutherford Institute byJohn WWhitehead, Steven H. Aden, Robert R. Melnick, andJamesJ.Knicely; for the Solidarity Center for Law andJustice, P.C., byJames P. Kelly III; for the UnitedStates Conference of Catholic Bishops byMark E. Chopko, JohnLiekweg, andJeffrey Hunter Moon; and forHughCalkins, pro se.

Briefs ofamici curiae urging affirmance were filed forthe American Jewish Committee et al. byHoward G.Kristol, Erwin Chemerinsky, Jeffrey P. Sinensky, Kara H. Stein,Arthur H. Bryant, andVictoria W Ni; for theAnti-Defamation League byMartin E. Karlinsky, DanielJ.Beller, Steven M. Freeman, andFrederick M.Lawrence; for the Council on Religious Freedom et al. byLeeBoothby andAlanJ.Reinach; for the NAACPLegal Defense and Educational Fund, Inc., et al. byNormanJ.Chachkin, Elaine R. Jones, Theodore M. Shaw, James L.Cott, Dennis D. Parker, andDennis Courtland Hayes; forthe National Committee for Public Education and Religious LibertybyGeoffrey F.Aronow andStanley Geller; forthe National School Boards Association et al. byJulie K.Underwood, Scott Bales, andJames Martin; for the OhioAssociation for Public Education and Religious Liberty byPatrick Farrell Timmins, Jr.; and for the Ohio School BoardsAssociation et al. byKimball H. Carey andSusan

Briefs of amici curiae were filed for the California Alliancefor Public Schools by Robin B. Johansen and Joseph Remcho; forVermonters for Better Education by Michael D. Dean; for John E.Coons et al. by Mr. Coons, pro se, and Stephen D. Sugarman, pro se;for Jesse H. Choper et al. by Mr. Choper, pro se, William Bassett,Teresa Collett, David Forte, Richard Garnett, Lino Graglia, MichaelHeise, Gail Heriot, Roderick Hills, Grant Nelson, Michael Perry,David Post, Charles Rice, Rosemary Salomone, Gregory Sisk, SteveSmith, and Harry Tepker; and for Ira J. Paul et al. by Sharon L.Browne.

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reside in the Cleveland City School District. The questionpresented is whether this program offends the Establishment Clauseof the United States Constitution. We hold that it does not.

There are more than 75,000 children enrolled in the ClevelandCity School District. The majority of these children are fromlow-income and minority families. Few of these families enjoy themeans to send their children to any school other than an inner-citypublic school. For more than a generation, however, Cleveland'spublic schools have been among the worst performing public schoolsin the Nation. In 1995, a Federal District Court declared a "crisisof magnitude" and placed the entire Cleveland school district understate control. SeeReed v.Rhodes, No. 1:73 CV 1300(ND Ohio, Mar. 3, 1995). Shortly thereafter, the state auditorfound that Cleveland's public schools were in the midst of a"crisis that is perhaps unprecedented in the history of Americaneducation." Cleveland City School District Performance Audit 2-1(Mar. 1996). The district had failed to meet any of the 18 statestandards for minimal acceptable performance. Only 1 in 10 ninthgraders could pass a basic proficiency examination, and students atall levels performed at a dismal rate compared with students inother Ohio public schools. More than two-thirds of high schoolstudents either dropped or failed out before graduation. Of thosestudents who managed to reach their senior year, one of every fourstill failed to graduate. Of those students who did graduate, fewcould read, write, or compute at levels comparable to theircounterparts in other cities.

It is against this backdrop that Ohio enacted, among otherinitiatives, its Pilot Project Scholarship Program, Ohio Rev. CodeAnn. §§ 3313.974-3313.979 (Anderson 1999 and Supp. 2000) (program).The program provides financial assistance to families in any Ohioschool district that is or has been "under federal court orderrequiring supervision and opera-

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tional management of the district by the state superintendent."§ 3313.975(A). Cleveland is the only Ohio school district to fallwithin that category.

The program provides two basic kinds of assistance to parents ofchildren in a covered district. First, the program provides tuitionaid for students in kindergarten through third grade, expandingeach year through eighth grade, to attend a participating public orprivate school of their parent's choosing. §§ 3313.975(B) and(C)(l). Second, the program provides tutorial aid forstudents who choose to remain enrolled in public school. §3313.975(A).

The tuition aid portion of the program is designed to provideeducational choices to parents who reside in a covered district.Any private school, whether religious or nonreligious, mayparticipate in the program and accept program students so long asthe school is located within the boundaries of a covered districtand meets statewide educational standards. § 313.976(A)(3).Participating private schools must agree not to discriminate on thebasis of race, religion, or ethnic background, or to "advocate orfoster unlawful behavior or teach hatred of any person or group onthe basis of race, ethnicity, national origin, or religion." §3313.976(A)(6). Any public school located in a school districtadjacent to the covered district may also participate in theprogram. §3313.976(C). Adjacent public schools are eligibleto receive a $2,250 tuition grant for each program student acceptedin addition to the full amount of per-pupil state fundingattributable to each additional student. §§3313.976(C),3317.03(1)(1).1 All participating schools,

1 Although the parties dispute the precise amount of statefunding received by suburban school districts adjacent to theCleveland City School District, there is no dispute that anysuburban district agreeing to participate in the program wouldreceive a $2,250 tuition grantplus the ordinary allotmentof per-pupil state funding for each program student enrolled in asuburban public school. See Brief for RespondentsSimmons-Harris

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whether public or private, are required to accept students inaccordance with rules and procedures established by the statesuperintendent. §§ 3313.977(A)(1)(a)-(c).

Tuition aid is distributed to parents according to financialneed. Families with incomes below 200% of the poverty line aregiven priority and are eligible to receive 90% of private schooltuition up to $2,250. §§ 3313.978(A) and(C)(l). For theselowest income families, participating private schools may notcharge a parental copayment greater than $250. § 3313.976(A)(8).For all other families, the program pays 75% of tuition costs, upto $1,875, with no copayment cap. §§ 3313.976(A)(8), 3313.978(A).These families receive tuition aid only if the number of availablescholarships exceeds the number of low-income children who chooseto participate.2 Where tuition aid is spent depends solely uponwhere parents who receive tuition aid choose to enroll their child.If parents choose a private school, checks are made payable to theparents who then endorse the checks over to the chosen school. §3313.979.

The tutorial aid portion of the program provides tutorialassistance through grants to any student in a covered district whochooses to remain in public school. Parents arrange for registeredtutors to provide assistance to their children and then submitbills for those services to the State for payment. §§ 3313.976(D),3313.979(C). Students from low-income families receive 90%of the amount charged for such assistance up to $360. All otherstudents receive 75% of that amount. § 3313.978(B). The number oftutorial assistance grants offered to students in a covereddistrict must equal the number of tuition aid scholarships providedto stu-

et al. 30, n. 11 (suburban schools would receive "on average,approximately, $4,750" per program student); Brief for Petitionersin No. 00-1779, p. 39 (suburban schools would receive "about$6,544" per program student).

2 The number of available scholarships per covered district isdetermined annually by the Ohio Superintendent for PublicInstruction. §§ 3313.978(A)-(B).

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dents enrolled at participating private or adjacent publicschools. § 3313.975(A).

The program has been in operation within the Cleveland CitySchool District since the 1996-1997 school year. In the 1999-2000school year, 56 private schools participated in the program, 46 (or82%) of which had a religious affiliation. None of the publicschools in districts adjacent to Cleveland have elected toparticipate. More than 3,700 students participated in thescholarship program, most of whom (96%) enrolled in religiouslyaffiliated schools. Sixty percent of these students were fromfamilies at or below the poverty line. In the 1998-1999 schoolyear, approximately 1,400 Cleveland public school students receivedtutorial aid. This number was expected to double during the1999-2000 school year.

The program is part of a broader undertaking by the State toenhance the educational options of Cleveland's schoolchildren inresponse to the 1995 takeover. That undertaking includes programsgoverning community and magnet schools. Community schools arefunded under state law but are run by their own school boards, notby local school districts. §§ 3314.01(B), 3314.04. These schoolsenjoy academic independence to hire their own teachers and todetermine their own curriculum. They can have no religiousaffiliation and are required to accept students by lottery. Duringthe 1999-2000 school year, there were 10 startup community schoolsin the Cleveland City School District with more than 1,900 studentsenrolled. For each child enrolled in a community school, the schoolreceives state funding of $4,518, twice the funding a participatingprogram school may receive.

Magnet schools are public schools operated by a local schoolboard that emphasize a particular subject area, teaching method, orservice to students. For each student enrolled in a magnet school,the school district receives $7,746, including state funding of$4,167, the same amount received

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per student enrolled at a traditional public school. As of 1999,parents in Cleveland were able to choose from among 23 magnetschools, which together enrolled more than 13,000 students inkindergarten through eighth grade. These schools providespecialized teaching methods, such as Montessori, or aparticularized curriculum focus, such as foreign language,computers, or the arts.

In 1996, respondents, a group of Ohio taxpayers, challenged theOhio program in state court on state and federal grounds. The OhioSupreme Court rejected respondents' federal claims, but held thatthe enactment of the program violated certain proceduralrequirements of the Ohio Constitution.Simmons-Harris v.Goff, 86 Ohio St. 3d 1, 8-9, 711 N. E. 2d 203, 211 (1999).The state legislature immediately cured this defect, leaving thebasic provisions discussed above intact.

In July 1999, respondents filed this action in United StatesDistrict Court, seeking to enjoin the reenacted program on theground that it violated the Establishment Clause of the UnitedStates Constitution. In August 1999, the District Court issued apreliminary injunction barring further implementation of theprogram, 54 F. Supp. 2d 725 (ND Ohio), which we stayed pendingreview by the Court of Appeals, 528 U. S. 983 (1999). In December1999, the District Court granted summary judgment for respondents.72 F. Supp. 2d 834. In December 2000, a divided panel of the Courtof Appeals affirmed the judgment of the District Court, findingthat the program had the "primary effect" of advancing religion inviolation of the Establishment Clause.234 F.3d945(CA6). The Court of Appeals stayed its mandatepending disposition in this Court. App. to Pet. for Cert. in No.00-1779, p. 151. We granted certiorari, 533 U. S. 976 (2001), andnow reverse the Court of Appeals.

The Establishment Clause of the First Amendment, applied to theStates through the Fourteenth Amendment, prevents a State fromenacting laws that have the "purpose"

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or "effect" of advancing or inhibiting religion.Agostiniv.Felton,521U. S. 203, 222-223 (1997) ("[WJe continue to ask whether thegovernment acted with the purpose of advancing or inhibitingreligion [and] whether the aid has the 'effect' of advancing orinhibiting religion" (citations omitted)). There is no dispute thatthe program challenged here was enacted for the valid secularpurpose of providing educational assistance to poor children in ademonstrably failing public school system. Thus, the questionpresented is whether the Ohio program nonetheless has the forbidden"effect" of advancing or inhibiting religion.

To answer that question, our decisions have drawn a consistentdistinction between government programs that provide aid directlyto 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, at225-227; Rosenberger v.Rector and Visitors of Univ. ofVa.,515 U. S.819, 842 (1995) (collecting cases), and programs of trueprivate choice, in which government aid reaches religious schoolsonly as a result of the genuine and independent choices of privateindividuals,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 ofdirect aid programs has "changed significantly" over the past twodecades,Agostini, supra, at 236, our jurisprudence withrespect to true private choice programs has remained consistent andunbroken. Three times we have confronted Establishment Clausechallenges to neutral government programs that provide aid directlyto a broad class of individuals, who, in turn, direct the aid toreligious schools or institutions of their own choosing. Threetimes we have rejected such challenges.

InMueller, we rejected an Establishment Clause challengeto a Minnesota program authorizing tax deductions for variouseducational expenses, including private school tu-

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ition costs, even though the great majority of the program'sbeneficiaries (96%) were parents of children in religious schools.We began by focusing on the class of beneficiaries, finding thatbecause the class included"all parents," including parentswith "children [who] attend nonsectarian private schools orsectarian private schools," 463 U. S., at 397 (emphasis inoriginal), the program was "not readily subject to challenge underthe Establishment Clause,"id., at 399 (citingWidmarv.Vincent,454 U. S. 263, 274 (1981)("The provision of benefits to so broad a spectrum of groups is animportant index of secular effect")). Then, viewing the program asa whole, we emphasized the principle of private choice, noting thatpublic funds were made available to religious schools "only as aresult of numerous, private choices of individual parents ofschool-age children." 463 U. S., at 399-400. This, we said, ensuredthat "no 'imprimatur of state approval' can be deemed to have beenconferred on any particular religion, or on religion generally."Id., at 399 (quotingWidmar, supra, at 274)). We thusfound it irrelevant to the constitutional inquiry that the vastmajority of beneficiaries were parents of children in religiousschools, saying:

"We would be loath to adopt a rule grounding theconstitutionality of a facially neutral law on annual reportsreciting the extent to which various classes of private citizensclaimed benefits under the law." 463 U. S., at 401.

That the program was one of true private choice, with noevidence that the State deliberately skewed incentives towardreligious schools, was sufficient for the program to survivescrutiny under the Establishment Clause.

InWitters, we used identical reasoning to reject anEstablishment Clause challenge to a vocational scholarship programthat provided tuition aid to a student studying at a religiousinstitution to become a pastor. Looking at the program as a whole,we observed that "[a]ny aid ... that ulti-

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mately flows to religious institutions does so only as a resultof the genuinely independent and private choices of aidrecipients." 474 U. S., at 487. We further remarked that, as inMueller, "[the] program is made available generally withoutregard to the sectarian-nonsectarian, or public-nonpublic nature ofthe institution benefited." 474 U. S., at 487 (internal quotationmarks omitted). In light of these factors, we held that the programwas not inconsistent with the Establishment Clause.Id., at488-489.

Five Members of the Court, in separate opinions, emphasized thegeneral rule fromMueller that the amount of government aidchanneled to religious institutions by individual aid recipientswas not relevant to the constitutional inquiry. 474 U. S., at490-491 (Powell, J., joined by Burger, C. J., and REHNQUIST, J.,concurring) (citingMueller, supra, at 398399); 474 U. S.,at 493 (O'CONNOR, J., concurring in part and concurring injudgment);id., at 490 (White, J., concurring). Our holdingthus rested not on whether few or many recipients chose to expendgovernment aid at a religious school but, rather, on whetherrecipients generally were empowered to direct the aid to schools orinstitutions of their own choosing.

Finally, inZobrest, we appliedMueller andWitters to reject an Establishment Clause challenge to afederal program that permitted sign-language interpreters to assistdeaf children enrolled in religious schools. Reviewing our earlierdecisions, we stated that "government programs that neutrallyprovide benefits to a broad class of citizens defined withoutreference to religion are not readily subject to an EstablishmentClause challenge." 509 U. S., at 8. Looking once again to thechallenged program as a whole, we observed that the program"distributes benefits neutrally to any child qualifying as'disabled.'"Id., at 10. Its "primary beneficiaries," wesaid, were "disabled children, not sectarian schools."Id.,at 12.

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We further observed that "[b]y according parents freedom toselect a school of their choice, the statute ensures that agovernment-paid interpreter will be present in a sectarian schoolonly as a result of the private decision of individual parents."Id., at 10. Our focus again was on neutrality and theprinciple of private choice, not on the number of programbeneficiaries attending religious schools.Id., at 10-11.See,e. g., Agostini, 521 U. S., at 229("Zobrest didnot turn on the fact that James Zobrest had, at the time oflitigation, been the only child using a publicly fundedsign-language interpreter to attend a parochial school"). Becausethe program ensured that parents were the ones to select areligious school as the best learning environment for theirhandicapped child, the circuit between government and religion wasbroken, and the Establishment Clause was not implicated.

Mueller, Witters, andZobrest thus make clear thatwhere a government aid program is neutral with respect to religion,and provides assistance directly to a broad class of citizens who,in turn, direct government aid to religious schools wholly as aresult of their own genuine and independent private choice, theprogram is not readily subject to challenge under the EstablishmentClause. A program that shares these features permits government aidto reach religious institutions only by way of the deliberatechoices of numerous individual recipients. The incidentaladvancement of a religious mission, or the perceived endorsement ofa religious message, is reasonably attributable to the individualrecipient, not to the government, whose role ends with thedisbursement of benefits. As a plurality of this Courtrecentlyobserved:

"[I]f numerous private choices, rather than the single choice ofa government, determine the distribution of aid, pursuant toneutral eligibility criteria, then a government cannot, or at leastcannot easily, grant special

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favors that might lead to a religious establishment."Mitchell, 530 U. S., at 810.

See alsoid., at 843 (O'CONNOR, J., concurring injudgment) ("[W]hen government aid supports a school's religiousmission only because of independent decisions made by numerousindividuals to guide their secular aid to that school, 'noreasonable observer is likely to draw from the facts ... aninference that the State itself is endorsing a religious practiceor belief'" (quotingWitters, 474 U. S., at 493 (O'CONNOR,J., concurring in part and concurring in judgment))). It isprecisely for these reasons that we have never found a program oftrue private choice to offend the Establishment Clause.

We believe that the program challenged here is a program of trueprivate choice, consistent withMueller, Witters, andZobrest, and thus constitutional. As was true in thosecases, the Ohio program is neutral in all respects toward religion.It is part of a general and multifaceted undertaking by the Stateof Ohio to provide educational opportunities to the children of afailed school district. It confers educational assistance directlyto a broad class of individuals defined without reference toreligion, i.e., any parent of a school-age child whoresides in the Cleveland City School District. The program permitsthe participation ofall schools within the district,religious or nonreligious. Adjacent public schools also mayparticipate and have a financial incentive to do so. Programbenefits are available to participating families on neutral terms,with no reference to religion. The only preference stated anywherein the program is a preference for low-income families, who receivegreater assistance and are given priority for admission atparticipating schools.

There are no "financial incentive[s]" that "ske[w]" the programtoward religious schools.Witters, supra, at 487-488. Suchincentives "[are] not present ... where the aid is allocated on thebasis of neutral, secular criteria that neither favor nor disfavorreligion, and is made available to both reli-

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gious and secular beneficiaries on a nondiscriminatory basis."Agostini, supra, at 231. The program here in fact createsfinancial disincentives for religious schools, with private schoolsreceiving only half the government assistance given to communityschools and one-third the assistance given to magnet schools.Adjacent public schools, should any choose to accept programstudents, are also eligible to receive two to three times the statefunding of a private religious school. Families too have afinancial disincentive to choose a private religious school overother schools. Parents that choose to participate in thescholarship program and then to enroll their children in a privateschool (religious or nonreligious) must copay a portion of theschool's tuition. Families that choose a community school, magnetschool, or traditional public school pay nothing. Although suchfeatures of the program are not necessary to its constitutionality,they clearly dispel the claim that the program "creates ...financial incentive[s] for parents to choose a sectarian school."Zobrest, 509 U. S., at 10.3

Respondents suggest that even without a financial incentive forparents to choose a religious school, the program creates a "publicperception that the State is endorsing religious practices andbeliefs." Brief for Respondents Simmons-Harris et al. 37-38. But wehave repeatedly rec-

3 JUSTICE SOUTER suggests the program is not "neutral" becauseprogram students cannot spend scholarship vouchers at traditionalpublic schools.Post, at 697-698 (dissenting opinion). Thisobjection is mistaken: Public schools in Cleveland already receive$7,097 in public funding per pupil-$4,167 of which is attributableto the State. App. 56a. Program students who receive tutoring aidand remain enrolled in traditional public schools therefore directalmost twice as much state funding to their chosen school as doprogram students who receive a scholarship and attend a privateschool.Ibid. JUSTICE SOUTER does not seriously claim thatthe program differentiates based on the religious status ofbeneficiaries or providers of services, the touchstone ofneutrality under the Establishment Clause.Mitchell v.Helms,530 U.S. 793, 809 (2000) (plurality opinion);id., at 838(O'CONNOR, J., concurring in judgment).

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ognized that no reasonable observer would think a neutralprogram of private choice, where state aid reaches religiousschools solely as a result of the numerous independent decisions ofprivate individuals, carries with it theimprimatur ofgovernment endorsement.Mueller, 463 U. S., at 399;Witters, supra, at 488-489;Zobrest, supra, at 10-11;e. g., Mitchell, supra, at 842-843 (O'CONNOR, J., concurringin judgment) ("In terms of public perception, a government programof direct aid to religious schools ... differs meaningfully fromthe government distributing aid directly to individual studentswho, in turn, decide to use the aid at the same religiousschools"). The argument is particularly misplaced here since "thereasonable observer in the endorsement inquiry must be deemedaware" of the "history and context" underlying a challengedprogram.Good News Club v.Milford Central School,533 U. S. 98, 119(2001) (internal quotation marks omitted). See alsoCapitolSquare Review and Advisory Bd. v.Pinette,515 U. S. 753, 780 (1995)(O'CONNOR, J., concurring in part and concurring in judgment). Anyobjective observer familiar with the full history and context ofthe Ohio program would reasonably view it as one aspect of abroader undertaking to assist poor children in failed schools, notas an endorsement of religious schooling in general.

There also is no evidence that the program fails to providegenuine opportunities for Cleveland parents to select seculareducational options for their school-age children. Clevelandschoolchildren enjoy a range of educational choices: They mayremain in public school as before, remain in public school withpublicly funded tutoring aid, obtain a scholarship and choose areligious school, obtain a scholarship and choose a nonreligiousprivate school, enroll in a community school, or enroll in a magnetschool. That 46 of the 56 private schools now participating in theprogram are religious schools does not condemn it as a violation ofthe Establishment Clause. The Establishment Clause question iswhether Ohio is coerc-

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ing parents into sending their children to religious schools,and that question must be answered by evaluatingall optionsOhio provides Cleveland schoolchildren, only one of which is toobtain a program scholarship and then choose a religiousschool.

JUSTICE SOUTER speculates that because more private religiousschools currently participate in the program, the program itselfmust somehow discourage the participation of private nonreligiousschools.Post, at 703-705 (dissenting opinion).4 ButCleveland's preponderance of religiously af-

4JUSTICE SOUTER appears to base this claim on the unfoundedassumption that capping the amount of tuition charged to low-incomestudents (at $2,500) favors participation by religious schools.Post, at 704-705 (dissenting opinion). But elsewhere heclaims that the program spendstoo much money on privateschools and chides the state legislature for even proposing toraise the scholarship amount for low-income recipients.Post, at 697-698, 710-711, 714-715. His assumption alsofinds no support in the record, which shows that nonreligiousprivate schools operating in Cleveland also seek and receivesubstantial third-party contributions. App. 194a-195a; App. to Pet.for Cert. in No. 00-1777, p. 119a. Indeed, the actual operation ofthe program refutes JUSTICE SOUTER'S argument that few butreligious schools can afford to participate: Ten secular privateschools operated within the Cleveland City School District when theprogram was adopted. Reply Brieffor Petitioners in No. 00-1777, p.4 (citing Ohio Educational Directory, 1999-2000 School Year,Alphabetic List of Nonpublic Schools, Ohio Dept. of Ed.). All 10chose to participate in the program and have continued toparticipate to this day. App. 281a- 286a. And while no religiousschools have been created in response to the program, severalnonreligious schools have been created,id., at144a-148a, 224a-225a, in spite of the fact that a principal barrierto entry of new private schools is the uncertainty caused byprotracted litigation which has plagued the program since itsinception,post, at 672 (O'CONNOR, J., concurring) (citingApp. 225a, 227a). See also234 F.3d945, 970(CA6 2000) (Ryan, J., concurring in part anddissenting in part) ("There is not a scintilla of evidence in thiscase that any school, public or private, has been discouraged fromparticipating in the school voucher program because it cannot'afford' to do so"). Similarly mistaken is JUSTICE SOUTER'Sreliance on the low enrollment of scholarship students innonreligious schools

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filiated private schools certainly did not arise as a result ofthe program; it is a phenomenon common to many American cities. SeeU. S. Dept. of Ed., National Center for Education Statistics,Private School Universe Survey: 1999-2000, pp. 2-4 (NCES 2001-330,2001) (hereinafter Private School Universe Survey) (cited in Brieffor United States asAmicus Curiae 24). Indeed, by allaccounts the program has captured a remarkable cross-section ofprivate schools, religious and nonreligious. It is true that 82% ofCleveland's participating private schools are religious schools,but it is also true that 81% of private schools in Ohio arereligious schools. See Brief for State of Florida et al. asAmici Curiae 16 (citing Private School Universe Survey). Toattribute constitutional significance to this figure, moreover,would lead to the absurd result that a neutral school-choiceprogram might be permissible in some parts of Ohio, such asColumbus, where a lower percentage of private schools are religiousschools, see Ohio Educational Directory (Lodging of RespondentsGatton et al., available in Clerk of Court's case file), and ReplyBrief for Petitioners in No. 00-1751, p. 12, n. 1, but not ininner-city Cleveland, where Ohio has deemed such programs mostsorely needed, but where the preponderance of religious schoolshappens to be greater. Cf. Brief for State of Florida et al. asAmici Curiae 17 ("[T]he percentages of sectarian tononsectarian private schools within Florida's 67 school districts... vary from zero to 100 percent"). Likewise, an identical privatechoice program might be constitutional in some States, such asMaine or Utah, where less

during the 1999-2000 school year.Post, at 704 (citingBrief for California Alliance for Public Schools asAmicusCuriae 15). These figures ignore the fact that the number ofprogram students enrolled in nonreligious schools has widely variedfrom year to year,infra, at 659;e.g., n. 5,infra, underscoring why the constitutionality of a neutralchoice program does not turn on annual tallies of private decisionsmade in any given year by thousands of individual aid recipients,infra, at 659 (citingMueller v.Allen,463 U. S. 388,401 (1983)).

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than 45% of private schools are religious schools, but not inother States, such as Nebraska or Kansas, where over 90% of privateschools are religious schools.Id., at 15-16 (citing PrivateSchool Universe Survey).

Respondents and JUSTICE SOUTER claim that even if we do notfocus on the number of participating schools that are religiousschools, we should attach constitutional significance to the factthat 96% of scholarship recipients have enrolled in religiousschools. They claim that this alone proves parents lack genuinechoice, even if no parent has ever said so. We need not considerthis argument in detail, since it was flatly rejected inMueller, where we found it irrelevant that 96% of parentstaking deductions for tuition expenses paid tuition at religiousschools. Indeed, we have recently found it irrelevant even to theconstitutionality of a direct aid program that a vast majority ofprogram benefits went to religious schools. SeeAgostini,521 U. S., at 229 ("Nor are we willing to conclude that theconstitutionality of an aid program depends on the number ofsectarian school students who happen to receive the otherwiseneutral aid" (citingMueller, 463 U. S., at 401)); see alsoMitchell, 530 U. S., at 812, n. 6 (plurality opinion)("[Agostini] held that the proportion of aid benefitingstudents at religious schools pursuant to a neutral programinvolving private choices was irrelevant to the constitutionalinquiry");id., at 848 (O'CONNOR, J., concurring injudgment) (same) (quotingAgostini, supra, at 229). Theconstitutionality of a neutral educational aid program simply doesnot turn on whether and why, in a particular area, at a particulartime, most private schools are run by religious organizations, ormost recipients choose to use the aid at a religious school. As wesaid inMueller, "[s]uch an approach would scarcely providethe certainty that this field stands in need of, nor can weperceive principled standards by which such statistical evidencemight be evaluated." 463 U. S., at 401.

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This point is aptly illustrated here. The 96% figure upon whichrespondents and JUSTICE SOUTER rely discounts entirely (1) the morethan 1,900 Cleveland children enrolled in alternative communityschools, (2) the more than 13,000 children enrolled in alternativemagnet schools, and (3) the more than 1,400 children enrolled intraditional public schools with tutorial assistance. Seesupra, at 647-648. Including some or all of these childrenin the denominator of children enrolled in nontraditional schoolsduring the 19992000 school year drops the percentage enrolled inreligious schools from 96% to under 20%. See also J. Greene, TheRacial, Economic, and Religious Context of Parental Choice inCleveland 11, Table 4 (Oct. 8, 1999), App. 217a (reporting thatonly 16.5% of nontraditional schoolchildren in Cleveland choosereligious schools). The 96% figure also represents but a snapshotof one particular school year. In the 19971998 school year, bycontrast, only 78% of scholarship recipients attended religiousschools. See App. to Pet. for Cert. in No. 00-1751, p. 5a. Thedifference was attributable to two private nonreligious schoolsthat had accepted 15% of all scholarship students electing insteadto register as community schools, in light of larger per-pupilfunding for community schools and the uncertain future of thescholarship program generated by this litigation. See App. 59a-62a,209a, 223a-227a.5 Many of the students enrolled in theseschools

5 The fluctuations seen in the Cleveland program are hardlyatypical.

Experience in Milwaukee, which since 1991 has operated aneducational choice program similar to the Ohio program,demonstrates that the mix of participating schools fluctuatessignificantly from year to year based on a number of factors, oneof which is the uncertainty caused by persistent litigation. SeeApp. 218a, 229a-236a; Brieffor State of Wisconsin asAmicusCuriae 10-13 (hereinafter Brieffor Wisconsin) (citing WisconsinDept. of Public Instruction, Milwaukee Parental Choice ProgramFacts and Figures for 2001-2002). Since the Wisconsin Supreme Courtdeclared the Milwaukee program constitutional in 1998,Jackson v.Benson, 218 Wis. 2d 835, 578 N. W. 2d 602,several nonreligious private schools have entered the Milwaukeemarket, and now represent 32% of all participating

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as scholarship students remained enrolled as community schoolstudents,id., at 145a-146a, thus demonstrating thearbitrariness of counting one type of school but not the other toassess primary effect,e.g., Ohio Rev. Code Ann. §3314.11 (Anderson 1999) (establishing a single "office of schooloptions" to "provide services that facilitate the management of thecommunity schools program and the pilot project scholarshipprogram"). In spite of repeated questioning from the Court at oralargument, respondents offered no convincing justification for theirapproach, which relies entirely on such arbitrary classifications.Tr. of Oral Arg. 52-60.6

schools. Brief for Wisconsin 11-12. Similarly, the number ofprogram students attending nonreligious private schools increasedfrom 2,048 to 3,582; these students now represent 33% of allprogram students.Id., at 12-13. There are currently 34nonreligious private schools participating in the Milwaukeeprogram, a nearly five-fold increase from the 7 nonreligiousschools that participated when the program began in 1990. See App.218a; Brief for Wisconsin 12. And the total number of studentsenrolled in nonreligious schools has grown from 337 when theprogram began to 3,582 in the most recent school year. See App.218a, 234a-236a; Brief for Wisconsin 12-13. These numbers furtherdemonstrate the wisdom of our refusal inMueller v.Allen, 463 U. S., at 401, to make the constitutionality ofsuch a program depend on "annual reports reciting the extent towhich various classes of private citizens claimed benefits underthe law."

6 JUSTICE SOUTER and JUSTICE STEVENS claim that communityschools and magnet schools are separate and distinct from programschools, simply because the program itself does not includecommunity and magnet school options.Post, at 698-701(SOUTER, J., dissenting);post, at 685 (STEVENS, J.,dissenting). But none of the dissenting opinions explain how thereis any perceptible difference between scholarship schools,community schools, or magnet schools from the perspective ofCleveland parents looking to choose the best educational option fortheir school-age children. Parents who choose a program school infact receive from the State precisely what parents who choose acommunity or magnet school receivethe opportunity to send theirchildren largely at state expense to schools they prefer to theirlocal public school. See,e.g., App. 147a,168a-169a; App. in Nos. 00-3055, etc.(CA6), pp. 1635-1645and 1657-1673 (Cleveland parents who enroll their children inschools other than local public schools typically explore allstate-funded options before choosing an alternative school).

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Respondents finally claim that we should look toCommitteefor Public Ed. &Religious Liberty v.Nyquist,413U. S. 756 (1973), to decide these cases. We disagree for tworeasons. First, the program inNyquist was quite differentfrom the program challenged here.Nyquist involved a NewYork program that gave a package of benefits exclusively to privateschools and the parents of private school enrollees. Although theprogram was enacted for ostensibly secular purposes,id., at773-774, we found that its "function" was"unmistakably toprovide desired financial support for nonpublic, sectarianinstitutions,"id., at 783 (emphasis added). Its genesis, wesaid, was that private religious schools faced "increasingly gravefiscal problems."Id., at 795. The program thus provideddirect money grants to religious schools.Id., at 762-764.It provided tax benefits "unrelated to the amount of money actuallyexpended by any parent on tuition," ensuring a windfall to parentsof children in religious schools.Id., at 790. It similarlyprovided tuition reimbursements designed explicitly to "offe[r] ...an incentive to parents to send their children to sectarianschools."Id., at 786. Indeed, the program flatly prohibitedthe participation of any public school, or parent of any publicschool enrollee.Id., at 763-765. Ohio's program shares noneof these features.

Second, were there any doubt that the program challenged inNyquist is far removed from the program challenged here, weexpressly reserved judgment with respect to "a case involving someform of public assistance(e. g., scholarships) madeavailable generally without regard to the sectariannonsectarian, orpublic-nonpublic nature of the institution benefited."Id.,at 782-783, n. 38. That, of course, is the very question now beforeus, and it has since been answered, first inMueller, 463 U.S., at 398-399 ("[A] program ... that neutrally provides stateassistance to a broad spectrum of citizens is not readily subjectto challenge under the Establishment Clause" (citingNyquist,supra, at 782-783, n. 38)),

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then inWitters, 474 U. S., at 487 ("Washington's programis 'made available generally without regard to thesectariannonsectarian, or public-nonpublic nature of theinstitution benefited'" (quotingNyquist, supra, at 782-783,n. 38)), and again inZobrest, 509 U. S., at 12-13 ("[T]hefunction of the [program] is hardly 'to provide desired financialsupport for nonpublic, sectarian institutions'" (quotingNyquist, supra, at 782-783, n. 38)). To the extent the scopeofNyquist has remained an open question in light of theselater decisions, we now hold thatNyquist does not governneutral educational assistance programs that, like the programhere, offer aid directly to a broad class of individual recipientsdefined without regard to religion.7

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

7 JUSTICE BREYER would raise the invisible specters of"divisiveness" and "religious strife" to find the programunconstitutional.Post, at 719, 725-728 (dissentingopinion). It is unclear exactly what sort of principle JUSTICEBREYER has in mind, considering that the program has ignited no"divisiveness" or "strife" other than this litigation. Nor is itclear where JUSTICE BREYER would locate this presumed authority todeprive Cleveland residents of a program that they have chosen butthat we subjectively find "divisive." We quite rightly haverejected the claim that some speculative potential for divisivenessbears on the constitutionality of educational aid programs.Mitchell v.Helms, 530 U. S., at 825 (pluralityopinion) ("The dissent resurrects the concern for politicaldivisiveness that once occupied the Court but thatpost-Aguilar cases have rightly disregarded") (citingcases);id., at 825-826 (" 'It is curious indeed to base ourinterpretation of the Constitution on speculation as to thelikelihood of a phenomenon which the parties may create merely byprosecuting a lawsuit'" (quotingAguilar v.Felton,473 U. S. 402,429 (1985) (O'CONNOR, J., dissenting))).

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decisions rejecting challenges to similar programs, we hold thatthe program does not offend the Establishment Clause.

The judgment of the Court of Appeals is reversed.

It is so ordered.

JUSTICE O'CONNOR, concurring.

The Court holds that Ohio's Pilot Project Scholarship Program,Ohio Rev. Code Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp.2000) (voucher program), survives respondents' Establishment Clausechallenge. While I join the Court's opinion, I write separately fortwo reasons. First, although the Court takes an important step, Ido not believe that today's decision, when considered in light ofother longstanding government programs that impact religiousorganizations and our prior Establishment Clause jurisprudence,marks a dramatic break from the past. Second, given the emphasisthe Court places on verifying that parents of voucher students inreligious schools have exercised "true private choice," I think itis worth elaborating on the Court's conclusion that this inquiryshould consider all reasonable educational alternatives toreligious schools that are available to parents. To do otherwise isto ignore how the educational system in Cleveland actuallyfunctions.

I

These cases are different from prior indirect aid cases in partbecause a significant portion of the funds appropriated for thevoucher program reach religious schools without restrictions on theuse of these funds. The share of public resources that reachreligious schools is not, however, as significant as respondentssuggest. See,e.g., Brief for RespondentsSimmons-Harris et al. 1-2. Data from the 1999-2000 school yearindicate that 82 percent of schools participating in the voucherprogram were religious and that 96 percent of participatingstudents enrolled in religious

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schools, see App. in Nos. 00-3055, etc.(CA6), p. 1679(46 of 56 private schools in the program are religiouslyaffiliated; 3,637 of 3,765 voucher students attend religiousprivate schools), but these data are incomplete. These statisticsdo not take into account all of the reasonable educational choicesthat may be available to students in Cleveland public schools. Whenone considers the option to attend community schools, thepercentage of students enrolled in religious schools falls to 62.1percent. If magnet schools are included in the mix, this percentagefalls to 16.5 percent. See J. Greene, The Racial, Economic, andReligious Context of Parental Choice in Cleveland 11, Table 4 (Oct.8, 1999), App. 217a (reporting 2,087 students in community schoolsand 16,184 students in magnet schools).

Even these numbers do not paint a complete picture. TheCleveland program provides voucher applicants from lowincomefamilies with up to $2,250 in tuition assistance and provides theremaining applicants with up to $1,875 in tuition assistance. §§3313.976(A)(8), 3313.978(A) and(C)(l). In contrast, theState provides community schools $4,518 per pupil and magnetschools, on average, $7,097 per pupil. Affidavit of Caroline M.Hoxby ~~ 4b, 4c, App. 56a. Even if one assumes that all voucherstudents came from low-income families and that each voucherstudent used up the entire $2,250 voucher, at most $8.2 million ofpublic funds flowed to religious schools under the voucher programin 1999-2000. Although just over one-half as many students attendedcommunity schools as religious private schools on the state fisc,the State spent over $1 million more-$9.4 million-on students incommunity schools than on students in religious private schoolsbecause per-pupil aid to community schools is more than double theper-pupil aid to private schools under the voucher program.Moreover, the amount spent on religious private schools is minorcompared to the $114.8 million the State spent on students in theCleveland magnet schools.

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Although $8.2 million is no small sum, it pales in comparison tothe amount of funds that federal, state, and local governmentsalready provide religious institutions. Religious organizations mayqualify for exemptions from the federal corporate income tax, see26 U. S. C. § 501(c)(3); the corporate income tax in many States,see,e.g., Cal. Rev. & Tax. Code Ann. § 23701d(West 1992); and property taxes in all 50 States, see Turner,Property Tax Exemptions for Nonprofits, 12 Probate & Property25 (Sept.lOct. 1998); and clergy qualify for a federal tax break onincome used for housing expenses, 26 U. S. C. § 1402(a)(8). Inaddition, the Federal Government provides individuals,corporations, trusts, and estates a tax deduction for charitablecontributions to qualified religious groups. See §§ 170, 642(c).Finally, the Federal Government and certain state governmentsprovide tax credits for educational expenses, many of which arespent on education at religious schools. See,e.g.,§ 25A (Hope tax credit); Minn. Stat. § 290.0674 (Supp. 2001).

Most of these tax policies are well established, see,e.g.,Mueller v.Allen,463 U. S. 388 (1983)(upholding Minnesota tax deduction for educational expenses);Walz v.Tax Comm'n of City of New York,397 U. S. 664 (1970)(upholding an exemption for religious organizations from New Yorkproperty tax), yet confer a significant relative benefit onreligious institutions. The state property tax exemptions forreligious institutions alone amount to very large sums annually.For example, available data suggest that Colorado's exemptionlowers that State's tax revenues by more than $40 million annually,see Rabey, Exemptions a Matter of Faith: No Proof Required ofTax-Free Churches, Colorado Springs Gazette Telegraph, Oct. 26,1992, p. B1; Colorado Debates Church, Nonprofit Tax-Exempt Status,Philadelphia Enquirer, Oct. 4, 1996, p. 8; Maryland's exemptionlowers revenues by more than $60 million, see Maryland Dept. ofAssessment and Taxation, 2001 SDAT Annual Report (Apr. 25, 2002),http://www.dat.state.md.us/sdatweb/stats/

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01acrpt.html (Internet sources available in Clerk of Court'scase file); Wisconsin's exemption lowers revenues by approximately$122 million, see Wisconsin Dept. of Revenue, Division of Researchand Analysis, Summary of Tax Exemption Devices 2001, Property Tax(Apr. 25, 2002),http://www.dor.state.wi.us/ra/sumOOpro.html ($5.688 billion in exempt religiousproperty; statewide average property tax rate of $21.46 per $1,000of property); and Louisiana's exemption, looking just at the cityof New Orleans, lowers revenues by over $36 million, see Bureau ofGovernmental Research, Property Tax Exemptions and AssessmentAdministration in Orleans Parish: Summary and Recommendations 2(Dec. 1999) ($22.6 million for houses of worship and $14.1 millionfor religious schools). As for the Federal Government, the taxdeduction for charitable contributions reduces federal tax revenuesby nearly $25 billion annually, see U. S. Dept. of Commerce, Bureauof Census, Statistical Abstract of the United States 344 (2000)(hereinafter Statistical Abstract), and it is reported that over 60percent of household charitable contributions go to religiouscharities,id., at 397. Even the relatively minor exemptionslower federal tax receipts by substantial amounts. The parsonageexemption, for example, lowers revenues by around $500 million. SeeDiaz, Ramstad Prepares Bill to Retain Tax Break for Clergy'sHousing, Star Tribune (Minneapolis-St. Paul), Mar. 30,2002,p.4A.

These tax exemptions, which have "much the same effect as [cashgrants] ... of the amount of tax [avoided],"Regan v.Taxation With Representation of Wash.,461 U. S. 540, 544(1983); see alsoRosenberger v.Rector and Visitors ofUniv. of Va.,515U. S. 819, 859-860, esp. n. 4 (1995) (THOMAS, J., concurring),are just part of the picture. Federal dollars also reachreligiously affiliated organizations through public health programssuch as Medicare, 42 U. S. C. §§ 13951395ggg, and Medicaid, § 1396et seq., through educational programs such as the Pell Grantprogram, 20 U. S. C. § 1070a, and the G. 1. Bill of Rights, 38 U.S. C. §§ 3451, 3698; and

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through childcare programs such as the Child Care andDevelopment Block Grant Program (CCDBG), 42 U. S. C. § 9858 (1994ed., Supp. V). Medicare and Medicaid provide federal funds to payfor the healthcare of the elderly and the poor, respectively, see 1B. Furrow, T. Greaney, S. Johnson, T. Jost, & R. Schwartz,Health Law 545-546 (2d ed. 2000); 2id., at 2; the PellGrant program and the G. 1. Bill subsidize higher education oflow-income individuals and veterans, respectively, see Mulleneaux,The Failure to Provide Adequate Higher Education Tax Incentives forLower-Income Individuals, 14 Akron Tax J. 27, 31 (1999); and theCCDBG program finances child care for low-income parents, seePitegoff, Child Care Policy and the Welfare Reform Act, 6 J.Affordable Housing & Community Dev. L. 113, 121-122 (1997).These programs are well-established parts of our social welfaresystem, see,e. g., Committee for Public Ed. &Religious Liberty v.Nyquist,413 U. S. 756, 782-783,n. 38 (1973), and can be quite substantial, see StatisticalAbstract 92 (Table 120) ($211.4 billion spent on Medicare andnearly $176.9 billion on Medicaid in 1998),id., at 135(Table 208) ($9.1 billion in financial aid provided by theDepartment of Education and $280.5 million by the Department ofDefense in 1999); Bush On Welfare: Tougher Work Rules, More StateControl, Congress Daily, Feb. 26, 2002, p. 8 ($4.8 billion for theCCDBG program in 2001).

A significant portion of the funds appropriated for theseprograms reach religiously affiliated institutions, typicallywithout restrictions on its subsequent use. For example, it hasbeen reported that religious hospitals, which account for 18percent of all hospital beds nationwide, rely on Medicare funds for36 percent of their revenue. MergerWatch, New Study Details PublicFunding of Religious Hospitals (Jan. 2002),http://www.mergerwatch.org/inthenews/publicfunding.html. Moreover, taking into account both Medicare andMedicaid, religious hospitals received nearly $45 billion from thefederal fisc in 1998.Ibid. Federal aid

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to religious schools is also substantial. Although data for allStates are not available, data from Minnesota, for example, suggestthat a substantial share of Pell Grant and other federal funds forcollege tuition reach religious schools. Roughly one-third or $27.1million of the federal tuition dollars spent on students at schoolsin Minnesota were used at private 4-year colleges. Minnesota HigherEducation Services Office, Financial Aid Awarded, Fiscal Year 1999:Grants, Loans, and Student Earning from Institution Jobs (Jan. 24,2001). The vast majority of these funds-$23.5 millionflowed toreligiously affiliated institutions.Ibid.

Against this background, the support that the Cleveland voucherprogram provides religious institutions is neither substantial noratypical of existing government programs. While this observation isnot intended to justify the Cleveland voucher program under theEstablishment Clause, seepost, at 709-710, n. 19 (SOUTER,J., dissenting), it places in broader perspective alarmist claimsabout implications of the Cleveland program and the Court'sdecision in these cases. Seepost, at 685-686 (STEVENS, J.,dissenting);post, at 715-716 (SOUTER, J., dissenting);post, p. 717 (BREYER, J., dissenting).

II

Nor does today's decision signal a major departure from thisCourt's prior Establishment Clause jurisprudence. A central tool inour analysis of cases in this area has been theLemon test.As originally formulated, a statute passed this test only if it had"a secular legislative purpose," if its "principal or primaryeffect" was one that "neither advance[d] nor inhibit[ed] religion,"and if it did "not foster an excessive government entanglement withreligion."Lemon v.Kurtzman,403 U. S. 602, 612-613(1971) (internal quotation marks omitted). InAgostini v.Felton,521 U.S. 203, 218, 232-233 (1997), we folded the entanglement inquiryinto the primary effect inquiry. This made sense because bothinquiries rely on the same evidence, seeibid., and thedegree of entangle-

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ment has implications for whether a statute advances or inhibitsreligion, seeLynch v.Donnelly,465 U. S. 668, 688 (1984)(O'CONNOR, J., concurring). The test today is basically the same asthat set forth inSchool Dist. of Abington Township v.Schempp,374U. S. 203, 222 (1963) (citingEverson v.Board of Ed.of Ewing,330 U. S.1 (1947);McGowan

The Court's opinion in these cases focuses on a narrow questionrelated to theLemon test: how to apply the primary effectsprong in indirect aid cases? Specifically, it clarifies the basicinquiry when trying to determine whether a program that distributesaid to beneficiaries, rather than directly to service providers,has the primary effect of advancing or inhibiting religion,Lemon v.Kurtzman, supra, at 613-614, or, as I haveput it, of "endors[ing] or disapprov[ing] ... religion,"Lynch v.Donnelly, supra, at 691-692 (concurringopinion); see alsoWallace v.Jaffree,472 U. S. 38, 69-70 (1985)(O'CONNOR, J., concurring in judgment). See alsoante, at652. Courts are instructed to consider two factors: first, whetherthe program administers aid in a neutral fashion, withoutdifferentiation based on the religious status of beneficiaries orproviders of services; second, and more importantly, whetherbeneficiaries of indirect aid have a genuine choice among religiousand nonreligious organizations when determining the organization towhich they will direct that aid. If the answer to either query is"no," the program should be struck down under the EstablishmentClause. Seeante, at 652-653.

JUSTICE SOUTER portrays this inquiry as a departure fromEverson. Seepost, at 687-688 (dissenting opinion). Afair reading of the holding in that case suggests quite theopposite. Justice Black's opinion for the Court held that the"[First] Amendment requires the state to be a neutral in itsrelations with groups of religious believers and nonbelievers; itdoes not require the state to be their adversary."Everson,supra, at 18; see alsoSchempp, supra, at 218, 222.

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How else could the Court have upheld a state program to providestudents transportation to public and religious schools alike? Whatthe Court clarifies in these cases is that the Establishment Clausealso requires that state aid flowing to religious organizationsthrough the hands of beneficiaries must do so only at the directionof those beneficiaries. Such a refinement of theLemon testsurely does not betrayEverson.

III

There is little question in my mind that the Cleveland voucherprogram is neutral as between religious schools and nonreligiousschools. Seeante, at 653-654. JUSTICE SOUTER rejects theCourt's notion of neutrality, proposing that the neutrality of aprogram should be gauged not by the opportunities it presents butrather by its effects. In particular, a "neutrality test ...[should] focus on a category of aid that may be directed toreligious as well as secular schools, and ask whether the schemefavors a religious direction."Post, at 697 (dissentingopinion). JUSTICE SOUTER doubts that the Cleveland program isneutral under this view. He surmises that the cap on tuition thatvoucher schools may charge low-income students encourages thesestudents to attend religious rather than nonreligious privatevoucher schools. Seepost, at 704-705. But JUSTICE SOUTER'Snotion of neutrality is inconsistent with that in our case law. Aswe put it inAgostini, government aid must be "madeavailable to both religious and secular beneficiaries on anondiscriminatory basis." 521 U. S., at 231.

I do not agree that the nonreligious schools have failed toprovide Cleveland parents reasonable alternatives to religiousschools in the voucher program. For nonreligious schools to qualifyas genuine options for parents, they need not be superior toreligious schools in every respect. They need only be adequatesubstitutes for religious schools in the eyes of parents. TheDistrict Court record demonstrates that nonreligious schools wereable to compete effectively

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with Catholic and other religious schools in the Clevelandvoucher program. Seeante, at 656-657, n. 4. The bestevidence of this is that many parents with vouchers selectednonreligious private schools over religious alternatives and aneven larger number of parents send their children to community andmagnet schools rather than seeking vouchers at all.Supra,at 663-664. Moreover, there is no record evidence that anyvoucher-eligible student was turned away from a nonreligiousprivate school in the voucher program, let alone a community ormagnet school. See234 F.3d945,969 (CA6 2000) (Ryan, J., concurring in part anddissenting in part); Affidavit of David L. Brennan ~ 8, App.147a.

To support his hunch about the effect of the cap on tuitionunder the voucher program, JUSTICE SOUTER cites national data tosuggest that, on average, Catholic schools have a cost advantageover other types of schools. Seepost, at 705-706, n. 15(dissenting opinion). Even if national statistics were relevant forevaluating the Cleveland program, JUSTICE SOUTER ignores evidencewhich suggests that, at a national level, nonreligious privateschools may target a market for a different, if not a higher,quality of education. For example, nonreligious private schools aresmaller, see U. S. Dept. of Ed., National Center for EducationStatistics, Private School Universe Survey, 1997-1998 (Oct. 1999)(Table 60) (87 and 269 students per private nonreligious andCatholic elementary school, respectively); have smaller classsizes, seeibid. (9.4 and 18.8 students per teacher atprivate nonreligious and Catholic elementary schools,respectively); have more highly educated teachers, see U. S. Dept.of Ed., National Center for Education Statistics, Private Schoolsin the United States: A Statistical Profile, 1993-1994 (NCES97-459, July 1997) (Table 3.4) (37.9 percent of nonreligiousprivate school teachers but only 29.9 percent of Catholic schoolteachers have Master's degrees); and have principals with longerjob tenure than Catholic schools, seeibid. (Table 3.7)(average ten-

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ure of principals at private nonreligious and Catholic schoolsis 8.2 and 4.7 years, respectively).

Additionally, JUSTICE SOUTER'S theory that the Cleveland voucherprogram's cap on the tuition encourages low-income students toattend religious schools ignores that these students receive nearlydouble the amount of tuition assistance under the community schoolsprogram than under the voucher program and that none of thecommunity schools is religious. Seeante, at 647.

In my view the more significant finding in these cases is thatCleveland parents who use vouchers to send their children toreligious private schools do so as a result of true private choice.The Court rejects, correctly, the notion that the high percentageof voucher recipients who enroll in religious private schoolsnecessarily demonstrates that parents do not actually have theoption to send their children to nonreligious schools.Ante,at 656-660. Likewise, the mere fact that some parents enrolledtheir children in religious schools associated with a differentfaith than their own, seepost, at 704 (SOUTER, J.,dissenting), says little about whether these parents had reasonablenonreligious options. Indeed, no voucher student has been known tobe turned away from a nonreligious private school participating inthe voucher program.Supra this page. This is impressivegiven evidence in the record that the present litigation hasdiscouraged the entry of some nonreligious private schools into thevoucher program. Declaration of David P. Zanotti ~~ 5, 10, App.225a, 227a. Finally, as demonstrated above, the Cleveland programdoes not establish financial incentives to undertake a religiouseducation.

I find the Court's answer to the question whether parents ofstudents eligible for vouchers have a genuine choice betweenreligious and nonreligious schools persuasive. In looking at thevoucher program, all the choices available to potentialbeneficiaries of the government program should be considered. Inthese cases, parents who were eligible to

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apply for a voucher also had the option, at a minimum, to sendtheir children to community schools. Yet the Court of Appeals chosenot to look at community schools, let alone magnet schools, whenevaluating the Cleveland voucher program. See 234 F. 3d, at 958.That decision was incorrect. Focusing in these cases only on theprogram challenged by respondents ignores how the educationalsystem in Cleveland actually functions. The record indicates that,in 1999, two nonreligious private schools that had previouslyserved 15 percent of the students in the voucher program wereprompted to convert to community schools because parents wereconcerned about the litigation surrounding the program, and becausea new community schools program provided more per-pupil financialaid. Many of the students that enrolled in the two schools underthe voucher program transferred to the community schools programand continued to attend these schools. See Affidavit of David L.Brennan ~~ 3, 10, App. 145a, 147a; Declaration of David P. Zanotti~~ 4-10,id., at 225a-227a. This incident provides strongevidence that both parents and nonreligious schools view thevoucher program and the community schools program as reasonablealternatives.

Considering all the educational options available to parentswhose children are eligible for vouchers, including community andmagnet schools, the Court finds that parents in the Clevelandschools have an array of nonreligious options.Ante, at 655.Not surprisingly, respondents present no evidence that any studentswho were candidates for a voucher were denied slots in a communityschool or a magnet school. Indeed, the record suggests the oppositewith respect to community schools. See Affidavit of David L.Brennan ~ 8, App.147a.

JUSTICE SOUTER nonetheless claims that, of the 10 communityschools operating in Cleveland during the 1999-2000 school year, 4were unavailable to students with vouchers and 4 others reportedpoor test scores. Seepost, at 702-

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703, n. 10 (dissenting opinion). But that analysis unreasonablylimits the choices available to Cleveland parents. It is undisputedthat Cleveland's 24 magnet schools are reasonable alternatives tovoucher schools. Seepost, at 701702, n. 9 (SOUTER, J.,dissenting);http://www.cmsdnet.net/administration/EducationaIServices/magnet.htm (June 20, 2002). Andof the four community schools JUSTICE SOUTER claims are unavailableto voucher students, he is correct only about one (Life SkillsCenter of Cleveland). Affidavit of Steven M. Puckett ~ 12, App.162a. JUSTICE SOUTER rejects the three other community schools(Horizon Science Academy, Cleveland Alternative Learning, andInternational Preparatory School) because they did not offerprimary school classes, were targeted toward poor students orstudents with disciplinary or academic problems, or were not inoperation for a year. Seepost, at 702-703, n. 10. But acommunity school need not offer primary school classes to be analternative to religious middle schools, and catering toimpoverished or otherwise challenged students may make a schoolmore attractive to certain inner-city parents. Moreover, the onecommunity school that was closed in 19992000 was merely looking fora new location and was operational in other years. See Affidavit ofSteven M. Puckett ~ 12, App. 162a; Ohio Dept. of Ed., Office ofSchool Options, Community Schools, Ohio's Community SchoolDirectory (June 22, 2002),http://www.ode.state.oh.us/community_schools/community _schooLdirectory/default.asp. Two more communityschools were scheduled to open after the 19992000 school year. SeeAffidavit of Steven M. Puckett ~ 13, App.163a.

Of the six community schools that JUSTICE SOUTER admits asalternatives to the voucher program in 1999-2000, he notes thatfour (the Broadway, Cathedral, Chapelside, and Lincoln Parkcampuses of the Hope Academy) reported lower test scores thanpublic schools during the school yearafter the DistrictCourt's grant of summary judgment to re-

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spondents, according to report cards prepared by the OhioDepartment of Education. Seepost, at 702-703, n. 10(dissenting opinion). (One, Old Brooklyn Montessori School,performed better than public schools.Ibid.; see also OhioDept. of Ed., 2001 Community School Report Card, Old BrooklynMontessori School 5 (community school scored higher than publicschools in four of five subjects in 19992000).) These report cardsunderestimate the value of the four Hope Academy schools. Beforethey entered the community school program, two of them participatedin the voucher program. Although they received far less statefunding in that capacity, they had among the highest rates ofparental satisfaction of all voucher schools, religious ornonreligious. See P. Peterson, W. Howell, & J. Greene, AnEvaluation of the Cleveland Voucher Program after Two Years 6,Table 4 (June 1999) (hereinafter Peterson). This is particularlyimpressive given that a Harvard University study found that theHope Academy schools attracted the "poorest and most educationallydisadvantaged students." J. Greene, W. Howell, P. Peterson, Lessonsfrom the Cleveland Scholarship Program 22, 24 (Oct. 15, 1997).Moreover, JUSTICE SOUTER'S evaluation of the Hope Academy schoolsassumes that the only relevant measure of school quality isacademic performance. It is reasonable to suppose, however, thatparents in the inner city also choose schools that providediscipline and a safe environment for their children. On thesedimensions some of the schools that JUSTICE SOUTER derides haveperformed quite ably. See Peterson, Table 7.

Ultimately, JUSTICE SOUTER relies on very narrow data to drawrather broad conclusions. One year of poor test scores at fourcommunity schools targeted at the most challenged students from theinner city says little about the value of those schools, let alonethe quality of the 6 other community schools and 24 magnet schoolsin Cleveland. JUSTICE SOUTER'S use of statistics confirms theCourt's wisdom in refus-

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ing to consider them when assessing the Cleveland program'sconstitutionality. Seeante, at 658. What appears tomotivate JUSTICE SOUTER'S analysis is a desire for a limitingprinciple to rule out certain nonreligious schools as alternativesto religious schools in the voucher program. Seepost, at700,701-702, n. 9 (dissenting opinion). But the goal of the Court'sEstablishment Clause jurisprudence is to determine whether, afterthe Cleveland voucher program was enacted, parents were free todirect state educational aid in either a nonreligious or religiousdirection. Seeante, at 655-656. That inquiry requires anevaluation of all reasonable educational options Ohio provides theCleveland school system, regardless of whether they are formallymade available in the same section of the Ohio Code as the voucherprogram.

Based on the reasoning in the Court's opinion, which isconsistent with the realities of the Cleveland educational system,I am persuaded that the Cleveland voucher program affords parentsof eligible children genuine nonreligious options and is consistentwith the Establishment Clause.

JUSTICE THOMAS, concurring.

Frederick Douglass once said that "[e]ducation ... meansemancipation. It means light and liberty. It means the uplifting ofthe soul of man into the glorious light of truth, the light bywhich men can only be made free." 1 Today many of our inner-citypublic schools deny emancipation to urban minority students.Despite this Court's observation nearly 50 years ago inBrown v.Board of Education,347 U. S. 483, 493(1954), that "it is doubtful that any child may reasonably beexpected to succeed in life if he is denied the opportunity of aneducation," urban children have been forced into a system thatcontinually fails them. These cases present an

1 The Blessings of Liberty and Education: An Address Deliveredin Manassas, Virginia, on 3 September 1894, in 5 The FrederickDouglass Papers 623 (J. Blassingame & J. McKivigan eds. 1992)(hereinafter Douglass Papers).

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example of such failures. Besieged by escalating financialproblems and declining academic achievement, the Cleveland CitySchool District was in the midst of an academic emergency when Ohioenacted its scholarship program.

The dissents and respondents wish to invoke the EstablishmentClause of the First Amendment, as incorporated through theFourteenth, to constrain a State's neutral efforts to providegreater educational opportunity for underprivileged minoritystudents. Today's decision properly upholds the program asconstitutional, and I join it in full.

I

This Court has often considered whether efforts to providechildren with the best educational resources conflict withconstitutional limitations. Attempts to provide aid to religiousschools or to allow some degree of religious involvement in publicschools have generated significant controversy and litigation asStates try to navigate the line between the secular and thereligious in education. See generallyIllinois ex rel.McCollum v.Board of Ed. of School Dist. No. 71,Champaign Cty.,333 U. S. 203, 237-238(1948) (Jackson, J., concurring) (noting that the Constitution doesnot tell judges "where the secular ends and the sectarian begins ineducation"). We have recently decided several cases challengingfederal aid programs that include religious schools. See,e. g.,Mitchell v.Helms,530 U. S. 793 (2000);Agostini v.Felton,521 U. S. 203 (1997). Todetermine whether a federal program survives scrutiny under theEstablishment Clause, we have considered whether it has a secularpurpose and whether it has the primary effect of advancing orinhibiting religion. SeeMitchell, supra, at 807-808. Iagree with the Court that Ohio's program easily passes muster underour stringent test, but, as a matter of first principles, Iquestion whether this test should be applied to the States.

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The Establishment Clause of the First Amendment states that"Congress shall make no law respecting an establishment ofreligion." On its face, this provision places no limit on theStates with regard to religion. The Establishment Clause originallyprotected States, and by extension their citizens, from theimposition of an established religion by the Federal Government. 2Whether and how this Clause should constrain state action under theFourteenth Amendment is a more difficult question.

The Fourteenth Amendment fundamentally restructured therelationship between individuals and the States and ensured thatStates would not deprive citizens of liberty without due process oflaw. It guarantees citizenship to all individuals born ornaturalized in the United States and provides that "[n]o Stateshall make or enforce any law which shall abridge the privileges orimmunities of citizens of the United States; nor shall any Statedeprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction theequal protection of the laws." As Justice Harlan noted, theFourteenth Amendment "added greatly to the dignity and glory ofAmerican citizenship, and to the security of personal liberty."Plessy v.Ferguson,163 U. S. 537, 555 (1896)(dissenting opinion). When rights are incorporated against theStates through the Fourteenth Amendment they should advance, notconstrain, individual liberty.

Consequently, in the context of the Establishment Clause, it maywell be that state action should be evaluated on different termsthan similar action by the Federal Government. "States, while boundto observe strict neutrality, should be freer to experiment withinvolvement [in religion]-on a neu-

2 See,e. g., School Dist. of Abington Township v.Schempp,374U. S. 203, 309-310 (1963) (Stewart, J., dissenting) ("[T]heEstablishment Clause was primarily an attempt to insure thatCongress not only would be powerless to establish a nationalchurch, but would also be unable to interfere with existing stateestablishments"); see alsoWallace v.Jaffree,472 U. S. 38, 113(1985) (REHNQUIST, J., dissenting).

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tral basis-than the Federal Government."Walz v.TaxComm'n of City of New York,397 U. S. 664, 699 (1970)(Harlan, J., concurring). Thus, while the Federal Government may"make no law respecting an establishment of religion," the Statesmay pass laws that include or touch on religious matters so long asthese laws do not impede free exercise rights or any otherindividual religious liberty interest. By considering theparticular religious liberty right alleged to be invaded by aState, federal courts can strike a proper balance between thedemands of the Fourteenth Amendment on the one hand and thefederalism prerogatives of States on the other.3

Whatever the textual and historical merits of incorporating theEstablishment Clause, I can accept that the Fourteenth Amendmentprotects religious liberty rights.4 But I

3 Several Justices have suggested that rights incorporatedthrough the Fourteenth Amendment apply in a different manner to theStates than they do to the Federal Government. For instance,Justice Jackson stated, "[t]he inappropriateness of a singlestandard for restricting State and N ation is indicated by thedisparity between their functions and duties in relation to thosefreedoms."Beauharnais v.Illinois,343 U. S. 250, 294 (1952)(dissenting opinion). Justice Harlan noted: "The Constitutiondifferentiates between those areas of human conduct subject to theregulation of the States and those subject to the powers of theFederal Government. The substantive powers of the two governments,in many instances, are distinct. And in every case where we arecalled upon to balance the interest in free expression againstother interests, it seems to me important that we should keep inthe forefront the question of whether those other interests arestate or federal."Roth v.United States, 354 U. S.476, 503-504 (1957) (dissenting opinion). See alsoGitlow v.New York,268U. S. 652, 672 (1925) (Holmes, J., dissenting).

4 In particular, these rights inhere in the Free ExerciseClause, which unlike the Establishment Clause protects individualliberties of religious worship. "That the central value embodied inthe First Amendmentand, more particularly, in the guarantee of'liberty' contained in the Fourteenth-is the safeguarding of anindividual's right to free exercise of his religion has beenconsistently recognized."Schempp, supra, at 312 (Stewart,J., dissenting). See also Amar, The Bill of Rights as aConstitution, 100 Yale L. J. 1131, 1159 (1991) ("[T]he freeexercise clause was paradigmatically about citizen rights, notstate rights; it thus invites incor-

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cannot accept its use to oppose neutral programs of schoolchoice through the incorporation of the Establishment Clause. Therewould be a tragic irony in converting the Fourteenth Amendment'sguarantee of individual liberty into a prohibition on the exerciseof educational choice.

II

The wisdom of allowing States greater latitude in dealing withmatters of religion and education can be easily appreciated in thiscontext. Respondents advocate using the Fourteenth Amendment tohandcuff the State's ability to experiment with education. Butwithout education one can hardly exercise the civic, political, andpersonal freedoms conferred by the Fourteenth Amendment. Faced witha severe educational crisis, the State of Ohio enacted wide-rangingeducational reform that allows voluntary participation of privateand religious schools in educating poor urban children otherwisecondemned to failing public schools. The program does not force anyindividual to submit to religious indoctrination or education. Itsimply gives parents a greater choice as to where and in whatmanner to educate their children.5 This is a choice that those withgreater means have routinely exercised.

poration. Indeed, this clause was specially concerned with theplight of minority religions, and thus meshes especially well withthe minorityrights thrust of the Fourteenth Amendment"); Lietzau,Rediscovering the Establishment Clause: Federalism and the Rollbackof Incorporation, 39 DePaul L. Rev. 1191, 1206-1207 (1990).

5 This Court has held that parents have the fundamental libertyto choose how and in what manner to educate their children. "Thefundamental theory of liberty upon which all governments in thisUnion repose excludes any general power of the State to standardizeits children by forcing them to accept instruction from publicteachers only. The child is not the mere creature of the State;those who nurture him and direct his destiny have the right,coupled with the high duty, to recognize and prepare him foradditional obligations."Pierce v.Society of Sisters,268 U. S. 510, 535 (1925). But seeTroxel v.Granville,530U. S. 57, 80 (2000) (THOMAS, J., concurring in judgment).

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Cleveland parents now have a variety of educational choices.There are traditional public schools, magnet schools, and privatelyrun community schools, in addition to the scholarship program.Currently, 46 of the 56 private schools participating in thescholarship program are church affiliated (35 are Catholic), and 96percent of students in the program attend religious schools. SeeApp. 281a-286a;234 F.3d945, 949(CA6 2000). Thus, were the Court to disallowthe inclusion of religious schools, Cleveland children could usetheir scholarships at only 10 private schools.

In addition to expanding the reach of the scholarship program,the inclusion of religious schools makes sense given Ohio's purposeof increasing educational performance and opportunities. Religiousschools, like other private schools, achieve far better educationalresults than their public counterparts. For example, the studentsat Cleveland's Catholic schools score significantly higher on Ohioproficiency tests than students at Cleveland public schools. OfCleveland eighth graders taking the 1999 Ohio proficiency test, 95percent in Catholic schools passed the reading test, whereas only57 percent in public schools passed. And 75 percent of Catholicschool students passed the math proficiency test, compared to only22 percent of public school students. See Brief for Petitioners inNo. 00-1777, p. 10. But the success of religious and privateschools is in the end beside the point, because the State has aconstitutional right to experiment with a variety of differentprograms to promote educational opportunity. That Ohio's programincludes successful schools simply indicates that such reform canin fact provide improved education to underprivileged urbanchildren.

Although one of the purposes of public schools was to promotedemocracy and a more egalitarian culture,6 failing urban publicschools disproportionately affect minority children most in need ofeducational opportunity. At the time

6 See,e.g., N. Edwards, School in the AmericanSocial Order: The Dynamics of American Education 360-362(1947).

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of Reconstruction, blacks considered public education "a matterof personal liberation and a necessary function of a free society."J. Anderson, Education of Blacks in the South, 1860-1935, p. 18(1988). Today, however, the promise of public school education hasfailed poor inner-city blacks. While in theory providing educationto everyone, the quality of public schools varies significantlyacross districts. Just as blacks supported public education duringReconstruction, many blacks and other minorities now support schoolchoice programs because they provide the greatest educationalopportunities for their children in struggling communities.7Opponents of the program raise formalistic concerns about theEstablishment Clause but ignore the core purposes of the FourteenthAmendment.

While the romanticized ideal of universal public educationresonates with the cognoscenti who oppose vouchers, poor urbanfamilies just want the best education for their children, who willcertainly need it to function in our high-tech and advancedsociety. As Thomas Sowell noted 30 years ago: "Most black peoplehave faced too many grim, concrete problems to be romantics. Theywant and need certain tangible results, which can be achieved onlyby developing certain specific abilities." Black Education: Mythsand Tragedies 228 (1972). The same is true today. An individual'slife prospects increase dramatically with each successfullycompleted phase of education. For instance, a black high

7Minority and low-income parents express the greatest supportfor parental choice and are most interested in placing theirchildren in private schools. "[T]he appeal of private schools isespecially strong among parents who are low in income, minority,and live in low-performing districts: precisely the parents who arethe most disadvantaged under the current system." T. Moe, Schools,Vouchers, and the American Public 164 (2001). Nearly three-fourthsof all public school parents with an annual income less than$20,000 support vouchers, compared to 57 percent of public schoolparents with an annual income of over $60,000. Seeid., at214 (Table 7-3). In addition, 75 percent of black public schoolparents support vouchers, as do 71 percent of Hispanic publicschool parents.Ibid.

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school dropout earns just over $13,500, but with a high schooldegree the average income is almost $21,000. Blacks with abachelor's degree have an average annual income of about $37,500,and $75,500 with a professional degree. See U. S. Dept. ofCommerce, Bureau of Census, Statistical Abstract of the UnitedStates 140 (2001) (Table 218). Staying in school and earning adegree generates real and tangible financial benefits, whereasfailure to obtain even a high school degree essentially relegatesstudents to a life of poverty and, all too often, of crime.8 Thefailure to provide education to poor urban children perpetuates avicious cycle of poverty, dependence, criminality, and alienationthat continues for the remainder of their lives. If society cannotend racial discrimination, at least it can arm minorities with theeducation to defend themselves from some of discrimination'seffects.

***

Ten States have enacted some form of publicly funded privateschool choice as one means of raising the quality of educationprovided to underprivileged urban children.9 These programs addressthe root of the problem with failing urban public schools thatdisproportionately affect minority students. Society's othersolution to these educational failures is often to provide racialpreferences in higher education. Such preferences, however, runafoul of the Fourteenth Amendment's prohibition againstdistinctions based on race. SeePlessy, 163 U. S., at 555(Harlan, J., dissenting). By contrast, school choice programs thatinvolve religious schools

8 In 1997, approximately 68 percent of prisoners in statecorrectional institutions did not have a high school degree. See U.S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook ofCriminal Justice Statistics2000, p. 519 (Table 6.38).

9 These programs include tax credits for such schooling. Inaddition, 37 States have some type of charter school law. SeeSchool Choice 2001:

What's Happening in the States xxv (R. Moffitt, J. Garrett,& J. Smith eds. 2001) (Table 1).

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appear unconstitutional only to those who would twist theFourteenth Amendment against itself by expansively incorporatingthe Establishment Clause. Converting the Fourteenth Amendment froma guarantee of opportunity to an obstacle against education reformdistorts our constitutional values and disserves those in thegreatest need.

As Frederick Douglass poignantly noted, "no greater benefit canbe bestowed upon a long benighted people, than giving to them, aswe are here earnestly this day endeavoring to do, the means of aneducation." 10

JUSTICE STEVENS, dissenting.

Is a law that authorizes the use of public funds to pay for theindoctrination of thousands of grammar school children inparticular religious faiths a "law respecting an establishment ofreligion" within the meaning of the First Amendment? In answeringthat question, I think we should ignore three factual matters thatare discussed at length by my colleagues.

First, the severe educational crisis that confronted theCleveland City School District when Ohio enacted its voucherprogram is not a matter that should affect our appraisal of itsconstitutionality. In the 1999-2000 school year, that programprovided relief to less than five percent of the students enrolledin the district's schools. The solution to the disastrousconditions that prevented over 90 percent of the student body frommeeting basic proficiency standards obviously required massiveimprovements unrelated to the voucher program.1 Of course, theemergency may have

10 Douglass Papers 623.

1 Ohio is currently undergoing a major overhaul of its publicschool financing pursuant to an order of the Ohio Supreme Court inDeRolph v.State, 93 Ohio St. 3d 309, 754 N. E. 2d1184 (2001). The Court ought, at least, to allow that reform effortand the district's experimentation with alternative public schoolsto take effect before relying on Cleveland's educational crisis asa reason for state financed religious education.

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given some families a powerful motivation to leave the publicschool system and accept religious indoctrination that they wouldotherwise have avoided, but that is not a valid reason forupholding the program.

Second, the wide range of choices that have been made availableto studentswithin the public school system has no bearingon the question whether the State may pay the tuition for studentswho wish to reject public education entirely and attend privateschools that will provide them with a sectarian education. The factthat the vast majority of the voucher recipients who have entirelyrejected public education receive religious indoctrination at stateexpense does, however, support the claim that the law is one"respecting an establishment of religion." The State may choose todivide up its public schools into a dozen different options andlabel them magnet schools, community schools, or whatever else itdecides to call them, but the State is still required to provide apublic education and it is the State's decision to fund privateschool education over and above its traditional obligation that isat issue in these cases.2

Third, the voluntary character of the private choice to prefer aparochial education over an education in the public school systemseems to me quite irrelevant to the question whether thegovernment's choice to pay for religious indoctrination isconstitutionally permissible. Today, however, the Court seems tohave decided that the mere fact that a family that cannot afford aprivate education wants its children educated in a parochial schoolis a sufficient justification for this use of public funds.

For the reasons stated by JUSTICE SOUTER and JUSTICE BREYER, Iam convinced that the Court's decision is profoundly misguided.Admittedly, in reaching that conclusion

2 The Court suggests that an education at one of the district'scommunity or magnet schools is provided "largely at state expense."Ante, at 660, n. 6. But a public education at either ofthese schools is providedentirely at state expense-as theState is required to do.

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I have been influenced by my understanding of the impact ofreligious strife on the decisions of our forbears to migrate tothis continent, and on the decisions of neighbors in the Balkans,Northern Ireland, and the Middle East to mistrust one another.Whenever we remove a brick from the wall that was designed toseparate religion and government, we increase the risk of religiousstrife and weaken the foundation of our democracy.

I respectfully dissent.

JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, andJUSTICE BREYER join, dissenting.

The Court's majority holds that the Establishment Clause is nobar to Ohio's payment of tuition at private religious elementaryand middle schools under a scheme that systematically provides taxmoney to support the schools' religious missions. The occasion forthe legislation thus upheld is the condition of public education inthe city of Cleveland. The record indicates that the schools arefailing to serve their objective, and the vouchers in issue hereare said to be needed to provide adequate alternatives to them. Ifthere were an excuse for giving short shrift to the EstablishmentClause, it would probably apply here. But there is no excuse.Constitutional limitations are placed on government to preserveconstitutional values in hard cases, like these."[C]onstitutionallines have to be drawn, and on one side of everyone of them is an otherwise sympathetic case that provokesimpatience with the Constitution and with the line. Butconstitutional lines are the price of constitutional government."Agostini v.Felton,521 U. S. 203, 254 (1997)(SOUTER, J., dissenting). I therefore respectfully dissent.

The applicability of the Establishment Clause 1 to publicfunding of benefits to religious schools was settled inEverson v.Board of Ed. of Ewing,330 U. S. 1 (1947), whichinau-

1 "Congress shall make no law respecting an establishment ofreligion,"

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gurated the modern era of establishment doctrine. The Courtstated the principle in words from which there was no dissent:

"No tax in any amount, large or small, can be levied to supportany religious activities or institutions, whatever they may becalled, or whatever form they may adopt to teach or practicereligion."Id., at 16.

The Court has never in so many words repudiated this statement,let alone, in so many words, overruledEverson.

Today, however, the majority holds that the Establishment Clauseis not offended by Ohio's Pilot Project Scholarship Program, underwhich students may be eligible to receive as much as $2,250 in theform of tuition vouchers transferable to religious schools. In thecity of Cleveland the overwhelming proportion of largeappropriations for voucher money must be spent on religious schoolsif it is to be spent at all, and will be spent in amounts thatcover almost all of tuition. The money will thus pay for eligiblestudents' instruction not only in secular subjects but in religionas well, in schools that can fairly be characterized as founded toteach religious doctrine and to imbue teaching in all subjects witha religious dimension.2 Public tax money will pay at a systemiclevel for teaching the covenant with Israel and Mosaic law inJewish schools, the primacy of the Apostle Peter and the Papacy inCatholic schools, the truth of reformed Christianity in Protestantschools, and the revelation to the Prophet in Muslim schools, tospeak only of major religious groupings in the Republic.

2 See,e.g., App. 319a (Saint Jerome SchoolParent and Student Handbook 1999-2000, p. 1) ("FAITH must dominatethe entire educational process so that the child can make decisionsaccording to Catholic values and choose to lead a Christian life");id., at 347a (Westside Baptist Christian SchoolParent-Student Handbook, p. 7) ("Christ is the basis of alllearning. All subjects will be taught from the Biblical perspectivethat all truth is God's truth").

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How can a Court consistently leaveEverson on the booksand approve the Ohio vouchers? The answer is that it cannot. It isonly by ignoringEverson that the majority can claim to reston traditional law in its invocation of neutral aid provisions andprivate choice to sanction the Ohio law. It is, moreover, only byignoring the meaning of neutrality and private choice themselvesthat the majority can even pretend to rest to day's decision onthose criteria.

I

The majority's statements of Establishment Clause doctrinecannot be appreciated without some historical perspective on theCourt's announced limitations on government aid to religiouseducation, and its repeated repudiation of limits previously set.My object here is not to give any nuanced exposition of the cases,which I tried to classify in some detail in an earlier opinion, seeMitchell v.Helms,530 U. S. 793, 873-899(2000) (dissenting opinion), but to set out the broad doctrinalstages covered in the modern era, and to show that doctrinalbankruptcy has been reached today.

Viewed with the necessary generality, the cases can becategorized in three groups. In the period from 1947 to 1968, thebasic principle of no aid to religion through school benefits wasunquestioned. Thereafter for some 15 years, the Court termed itsefforts as attempts to draw a line against aid that would bedivertible to support the religious, as distinct from the secular,activity of an institutional beneficiary. Then, starting in 1983,concern with divertibility was gradually lost in favor of approvingaid in amounts unlikely to afford substantial benefits to religiousschools, when offered evenhandedly without regard to a recipient'sreligious character, and when channeled to a religious institutiononly by the genuinely free choice of some private individual. Now,the three stages are succeeded by a fourth, in which thesubstantial character of government aid is held to have noconstitutional significance, and the espoused criteria

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of neutrality in offering aid, and private choice in directingit, are shown to be nothing but examples of verbal formalism.

A

Everson v.Board of Ed. of Ewing inaugurated themodern development of Establishment Clause doctrine at the behestof a taxpayer challenging state provision of "tax-raised funds topay the bus fares of parochial school pupils" on regular city busesas part of a general scheme to reimburse the public-transportationcosts of children attending both public and private nonprofitschools. 330 U. S., at 17. Although the Court split, no Justicedisagreed with the basic doctrinal principle already quoted, that"[n]o tax in any amount ... can be levied to support any religiousactivities or institutions, ... whatever form they may adopt toteach ... religion."Id., at 16. Nor did any Member of theCourt deny the tension between the New Jersey program and the aimsof the Establishment Clause. The majority upheld the state law onthe strength of rights of religious-school students under the FreeExercise Clause,id., at 17-18, which was thought to entitlethem to free public transportation when offered as a "generalgovernment servic[e]" to all schoolchildren,id., at 17.Despite the indirect benefit to religious education, thetransportation was simply treated like "ordinary police and fireprotection, connections for sewage disposal, public highways andsidewalks,"id., at 17-18, and, most significantly,"state-paid policemen, detailed to protect children going to andfrom church schools from the very real hazards of traffic,"id., at 17. The dissenters, however, found the benefit toreligion too pronounced to survive the general principle of noestablishment, no aid, and they described it as running counter toevery objective served by the establishment ban: New Jersey's useof tax-raised funds forced a taxpayer to "contribut[e] to thepropagation of opinions which he disbelieves in so far as ...religions differ,"id., at 45 (internal quotation marksomitted); it exposed religious

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liberty to the threat of dependence on state money,id.,at 53; and it had already sparked political conflicts withopponents of public funding,id., at 54.3

The difficulty of drawing a line that preserved the basicprinciple of no aid was no less obvious some 20 years later inBoard of Ed. of Central School Dist. No.1 v.Allen,392 U. S. 236 (1968), which upheld a New York law authorizinglocal school boards to lend textbooks in secular subjects tochildren attending religious schools, a result not self-evidentfromEverson's "general government services" rationale. TheCourt relied instead on the theory that the in-kind aid could onlybe used for secular educational purposes, 392 U. S., at 243, andfound it relevant that "no funds or books are furnished [directly]to parochial schools, and the financial benefit is to parents andchildren, not to schools,"id., at 243244.4 Justice Black,who wroteEverson, led the dissenters. Textbooks, even when"'secular,' realistically will in some way inevitably tend topropagate the religious views of the favored sect," 392 U. S., at252, he wrote, and Justice Douglas raised other objectionsunderlying the establishment ban,id., at 254-266. Religiousschools would request those books most in keeping with theirfaiths, and public boards would have final approval power: "If theboard of education supinely submits by approving and supplying thesectarian or sectarian-oriented textbooks, the struggle to keepchurch

3 SeeEverson, 330 U. S., at 54, n. 47 (noting thatsimilar programs had been struck down in six States, upheld ineight, andamicus curiae briefs filed by "three religioussects, one labor union, the American Civil Liberties Union, and thestates of Illinois, Indiana, Louisiana, Massachusetts, Michigan andNew York").

4 The Court noted that "the record contains no evidence that anyof the private schools ... previously provided textbooks for theirstudents," and "[t]here is some evidence that at least some of theschools did not."Allen, 392 U. S., at 244, n. 6. This was asignificant distinction: if the parochial schools provided seculartextbooks to their students, then the State's provision of the samein their stead might have freed up church resources for allocationto other uses, including, potentially, religiousindoctrination.

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and state separate has been lost. If the board resists, then thebattle line between church and state will have been drawn .... "Id., at 256 (Douglas, J., dissenting). The scheme was sureto fuel strife among religions as well: "we can rest assured that acontest will be on to provide those books for religious schoolswhich the dominant religious group concludes best reflect thetheocentric or other philosophy of the particular church."Id., at 265.

Transcending even the sharp disagreement, however, was

"the consistency in the way the Justices went about deciding thecase .... N either side rested on any facile application of the'test' or any simplistic reliance on the generality orevenhandedness of the state law. Disagreement concentrated on thetrue intent inferrable behind the law, the feasibility ofdistinguishing in fact between religious and secular teaching inchurch schools, and the reality or sham of lending books to pupilsinstead of supplying books to schools .... [T]he stress was on thepractical significance of the actual benefits received by theschools."Mitchell, 530 U. S., at 876 (SouTER, J.,dissenting).

B

Allen recognized the reality that "religious schoolspursue two goals, religious instruction and secular education," 392U. S., at 245; if state aid could be restricted to serve thesecond, it might be permissible under the Establishment Clause. Butin the retrenchment that followed, the Court saw that the twoeducational functions were so intertwined in religious primary andsecondary schools that aid to secular education could not readilybe segregated, and the intrusive monitoring required to enforce theline itself raised Establishment Clause concerns about theentanglement of church and state. SeeLemon v.Kurtzman,403U. S. 602, 620 (1971) (striking down program supplementingsalaries for teachers of secular subjects in private schools). Toavoid

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the entanglement, the Court's focus in thepost-Allencases was on the principle of divertibility, on discerning whenostensibly secular government aid to religious schools wassusceptible to religious uses. The greater the risk of diversion toreligion (and the monitoring necessary to avoid it), the lesslegitimate the aid scheme was under the no-aid principle. On theone hand, the Court tried to be practical, and when the aidrecipients were not so "pervasively sectarian" that their secularand religious functions were inextricably intertwined, the Courtgenerally upheld aid earmarked for secular use. See,e. g.,Roemer v.Board of Public Works of Md.,426 U. S. 736 (1976);Hunt v.McNair,413 U. S. 734 (1973);Tilton v.Richardson,403 U. S. 672 (1971). Butotherwise the principle of nondivertibility was enforced strictly,with its violation being presumed in most cases, even when stateaid seemed secular on its face. Compare,e. g., Levitt v.Committee for Public Ed. &Religious Liberty,413 U. S. 472,480 (1973) (striking down state program reimbursing privateschools' administrative costs for teacher-prepared tests incompulsory secular subjects), withWolman v.Walter,433 U. S. 229,255 (1977) (upholding similar program using standardized tests);andMeek v.Pittenger,421 U. S. 349, 369-372(1975) (no public funding for staff and materials for "auxiliaryservices" like guidance counseling and speech and hearingservices), withWolman, supra, at 244 (permitting state aidfor diagnostic speech, hearing, and psychological testing).

The fact that the Court's suspicion of divertibility reflected aconcern with the substance of the no-aid principle is apparent inits rejection of stratagems invented to dodge it. InCommitteefor Public Ed. &Religious Liberty v.Nyquist,413U. S. 756 (1973), for example, the Court struck down a New Yorkprogram of tuition grants for poor parents and tax deductions formore affluent ones who sent their children to private schools. TheNyquist Court dismissed warranties of a "statisticalguarantee," that the scheme provided at most 15% of the total costof an education at a religious school,

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id., at 787-788, which could presumably be matched to asecular 15% of a child's education at the school. And it rejectedthe idea that the path of state aid to religious schools might bedispositive: "far from providing aper se immunity fromexamination of the substance of the State's program, the fact thataid is disbursed to parents rather than to the schools is only oneamong many factors to be considered."Id., at 781. The pointwas that "the effect of the aid is unmistakably to provide desiredfinancial support for nonpublic, sectarian institutions."Id., at 783.5Nyquist thus held that aid to parentsthrough tax deductions was no different from forbidden direct aidto religious schools for religious uses. The focus remained on whatthe public money bought when it reached the end point of itsdisbursement.

c

Like all criteria requiring judicial assessment of risk,divertibility is an invitation to argument, but the object of thearguments provoked has always been a realistic assessment of factsaimed at respecting the principle of no aid. InMueller v.Allen,463 U.S. 388 (1983), however, that object began to fade, forMueller started down the road from realism to formalism.

5 The Court similarly rejected a path argument inWolmanv.Walter,433U. S. 229 (1977), overruled byMitchell v.Helms,530 U. S. 793(2000), where the State sought to distinguishMeek v.Pittenger,421U. S. 349 (1975), overruled byMitchell, supra, based onthe fact that, inMeek, the State had lent educationalmaterials to individuals rather than to schools. "Despite thetechnical change in legal bailee," the Court explained, "theprogram in substance is the same as before," and "it would exaltform over substance if this distinction were found to justify aresult different from that inMeek." Wolman, supra, at 250.Conversely, the Court upheld a law reimbursing private schools forstate-mandated testing, dismissing a proffered distinction based onthe indirect path of aid in an earlier case as "a formalisticdichotomy that bears ... little relationship either to common senseor 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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The aid inMueller was in substance indistinguishablefrom that inNyquist, see 463 U. S., at 396-397, n. 6, andboth were substantively difficult to distinguish from aid directlyto religious schools,id., at 399. But the Court upheld theMinnesota tax deductions inMueller, emphasizing theirneutral availability for religious and secular educational expensesand the role of private choice in taking them.Id., at397398. The Court relied on the same two principles inWitters v.Washington Dept. of Servs.for Blind,474 U. S. 481(1986), approving one student's use of a vocational trainingsubsidy for the blind at a religious college, characterizing it asaid to individuals from which religious schools could derive no"large" benefit: "the full benefits of the program [are not]limited, in large part or in whole, to students at sectarianinstitutions."Id., at 488.

School Dist. of Grand Rapids v.Ball,473 U. S. 373, 395396,and n. 13 (1985), overruled in part byAgostini v.Felton,521 U.S. 203 (1997), clarified that the notions of evenhandednessneutrality and private choice inMueller did not apply tocases involving direct aid to religious schools, which were stillsubject to the divertibility test. But inAgostini, wherethe substance of the aid was identical to that inBall,public employees teaching remedial secular classes in privateschools, the Court rejected the 30-year-old presumption ofdivertibility, and instead found it sufficient that the aid"supplement[ed]" but did not "supplant" existing educationalservices, 521 U. S., at 210, 230. The Court, contrary toBall, viewed the aid as aid "directly to the eligiblestudents ... no matter where they choose to attend school." 521 U.S., at 229.

In the 12 years betweenBall andAgostini, theCourt decided not onlyWitters, but two other casesemphasizing the form of neutrality and private choice over thesubstance of aid to religious uses, but always in circumstanceswhere any aid to religion was isolated and insubstantial.Zobrest v.Catalina Foothills School Dist.,509 U. S. 1 (1993), likeWit-

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ters, involved one student's choice to spend funds from ageneral public program at a religious school (to pay for asignlanguage interpreter). As inWitters, the Court reasonedthat "[d]isabled children, not sectarian schools, [were] theprimary beneficiaries ... ; to the extent sectarian schools benefitat all ... , they are only incidental beneficiaries." 509 U. S., at12.Rosenberger v.Rector and Visitors of Univ. ofVa.,515 U. S.819 (1995), likeZobrest andWitters, involved anindividual and insubstantial use of neutrally available publicfunds for a religious purpose (to print an evangelicalmagazine).

To be sure, the aid inAgostini was systemic and arguablysubstantial, but, as I have said, the majority there chose to viewit as a bare "supplement." 521 U. S., at 229. And this was how thecontrolling opinion described the systemic aid in our most recentcase,Mitchell v.Helms,530 U. S. 793 (2000), asaid going merely to a "portion" of the religious schools' budgets,id., at 860 (O'CONNOR, J., concurring in judgment). Theplurality in that case did not feel so uncomfortable aboutjettisoning substance entirely in favor of form, finding itsufficient that the aid was neutral and that there was virtualprivate choice, since any aid "first passes through the hands(literally or figuratively) of numerous private citizens who arefree to direct the aid elsewhere."Id., at 816. But that wasonly the plurality view.

Hence it seems fair to say that it was not until today thatsubstantiality of aid has clearly been rejected as irrelevant by amajority of this Court, just as it has not been until today that amajority, not a plurality, has held purely formal criteria tosuffice for scrutinizing aid that ends up in the coffers ofreligious schools. Today's cases are notable for their starkillustration of the inadequacy of the majority's chosen formalanalysis.

II

Although it has taken half a century sinceEverson toreach the majority's twin standards of neutrality and

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free choice, the facts show that, in the majority's hands, eventhese criteria cannot convincingly legitimize the Ohio scheme.

A

Consider first the criterion of neutrality. As recently as twoTerms ago, a majority of the Court recognized that neutralityconceived of as evenhandedness toward aid recipients had never beentreated as alone sufficient to satisfy the Establishment Clause,Mitchell, 530 U. S., at 838-839 (O'CONNOR, J., concurring injudgment);id., at 884 (SOUTER, J., dissenting). But atleast in its limited significance, formal neutrality seemed toserve some purpose. Today, however, the majority employs theneutrality criterion in a way that renders it impossible tounderstand.

Neutrality in this sense refers, of course, to evenhandedness insetting eligibility as between potential religious and secularrecipients of public money.Id., at 809-810 (pluralityopinion);id., at 878-884 (SOUTER, J., dissenting) (threesenses of "neutrality").6 Thus, for example, the aid scheme inWitters provided an eligible recipient with a scholarship tobe used at any institution within a practically unlimited universeof schools, 474 U. S., at 488; it did not tend to provide more orless aid depending on which one the scholarship recipient chose,and there was no indication that the maximum scholarship amountwould be insufficient at secular

6 JUSTICE O'CONNOR apparently no longer distinguishes betweenthis notion of evenhandedness neutrality and the free-exerciseneutrality inEverson. Compareante, at 669(concurring opinion), withMitchell, 530 U. S., at 839(opinion concurring in judgment) ("Even if we at one time used theterm 'neutrality' in a descriptive sense to refer to those aidprograms characterized by the requisite equipoise between supportof religion and antagonism to religion, JUSTICE SOUTER'S discussionconvincingly demonstrates that the evolution in the meaning of theterm in our jurisprudence is cause to hesitate before equating theneutrality of recent decisions with the neutrality of old").

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schools. Neither did any condition of Zobrest's interpreter'ssubsidy favor religious education. See 509 U. S., at 10.

In order to apply the neutrality test, then, it makes sense tofocus on a category of aid that may be directed to religious aswell as secular schools, and ask whether the scheme favors areligious direction. Here, one would ask whether the voucherprovisions, allowing for as much as $2,250 toward private schooltuition (or a grant to a public school in an adjacent district),were written in a way that skewed the scheme toward benefitingreligious schools.

This, however, is not what the majority asks. The majority looksnot to the provisions for tuition vouchers, Ohio Rev. Code Ann. §3313.976 (West Supp. 2002), but to every provision for educationalopportunity: "The program permits the participation ofallschools within the district, [as well as public schools in adjacentdistricts], religious or nonreligious."Ante, at 653(emphasis in original). The majority then finds confirmation that"participation ofall schools" satisfies neutrality bynoting that the better part of total state educational expendituregoes to public schools,ante, at 654, thus showing there isno favor of religion.

The illogic is patent. If regular, public schools (which can getno voucher payments) "participate" in a voucher scheme with schoolsthat can, and public expenditure is still predominantly on publicschools, then the majority's reasoning would find neutrality in ascheme of vouchers available for private tuition in districts withno secular private schools at all. "Neutrality" as the majorityemploys the term is, literally, verbal and nothing more. This,indeed, is the only way the majority can gloss over the verynonneutral feature of the total scheme covering"allschools": public tutors may receive from the State no more than$324 per child to support extra tutoring (that is, the State's 90%of a total amount of $360), App. 166a, whereas the tuition voucherschools (which

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turn out to be mostly religious) can receive up to $2,250,id., at 56a.7

Why the majority does not simply accept the fact that thechallenge here is to the more generous voucher scheme and judge itsneutrality in relation to religious use of voucher money seems veryodd. It seems odd, that is, until one recognizes that comparableschools for applying the criterion of neutrality are also thecomparable schools for applying the other majority criterion,whether the immediate recipients of voucher aid have a genuinelyfree choice of religious and secular schools to receive the vouchermoney. And in applying this second criterion, the consideration of"all schools" is ostensibly helpful to the majorityposition.

B

The majority addresses the issue of choice the same way itaddresses neutrality, by asking whether recipients or potentialrecipients of voucher aid have a choice of public schools amongsecular alternatives to religious schools. Again, however, themajority asks the wrong question and misapplies the criterion. Themajority has confused choice in spending scholarships with choicefrom the entire menu of

7 The majority's argument that public school students within theprogram "direct almost twice as much state funding to their chosenschool as do program students who receive a scholarship and attenda private school,"ante, at 654, n. 3, was decisivelyrejected inCommittee for Public Ed. &ReligiousLiberty v.Nyquist,413 U. S. 756, 782-783,n. 38 (1973):

"We do not agree with the suggestion ... that tuition grants arean analogous endeavor to provide comparable benefits to all parentsof schoolchildren whether enrolled in public or nonpublic schools.... The grants to parents of private school children are given inaddition to the right that they have to send their children topublic schools 'totally at state expense.' And in any event, theargument proves too much, for it would also provide a basis forapproving through tuition grants thecomplete subsidizationof all religious schools on the ground that such action isnecessary if the State is fully to equalize the position of parentswho elect such schoolsa result wholly at variance with theEstablishment Clause."

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possible educational placements, most of them open to anyonewilling to attend a public school. I say "confused" because themajority's new use of the choice criterion, which it framesnegatively as "whether Ohio is coercing parents into sending theirchildren to religious schools,"ante, at 655-656, ignoresthe reason for having a private choice enquiry in the first place.Cases sinceMueller have found private choice relevant undera rule that aid to religious schools can be permissible so long asit first passes through the hands of students or parents.8 Themajority's view that all educational choices are comparable forpurposes of choice thus ignores the whole point of the choice test:it is a criterion for deciding whether indirect aid to a religiousschool is legitimate because it passes through private hands thatcan spend or use the aid in a secular school. The question iswhether the private hand is genuinely free to send the money ineither a secular direction or a religious one. The majority now hastransformed this question about private choice in channeling aidinto a question about selecting from examples of state spending (oneducation) including direct spending on magnet and community publicschools that goes through no private hands and could never reach areligious school under any circumstance. When the choice test istransformed from where to spend the money to where to go to school,it is cut loose from its very purpose.

8 In some earlier cases, "private choice" was sensiblyunderstood to go beyond the mere formalism of path, to ensure thataid was neither systemic nor predestined to go to religious uses.Witters, for example, had a virtually unlimited choice amongprofessional training schools, only a few of which were religious;and Zobrest was simply one recipient who chose to use agovernment-funded interpreter at a religious school over a secularschool, either of which was open to him. But recent decisions seemto have stripped away any substantive bite, as "private choice"apparently means only that government aid follows individuals toreligious schools. See,e. g., Agostini v.Felton,521 U. S. 203,229 (1997) (state aid for remedial instruction at a religiousschool goes "directly to the eligible students ... no matter wherethey choose to attend school").

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Defining choice as choice in spending the money or channelingthe aid is, moreover, necessary if the choice criterion is tofunction as a limiting principle at all. If "choice" is presentwhenever there is any educational alternative to the religiousschool to which vouchers can be endorsed, then there will always bea choice and the voucher can always be constitutional, even in asystem in which there is not a single private secular school as analternative to the religious school. Seesupra, at 697(noting the same result under the majority's formulation of theneutrality criterion). And because it is unlikely that anyparticipating private religious school will enroll more pupils thanthe generally available public system, it will be easy to generatenumbers suggesting that aid to religion is not the significantintent or effect of the voucher scheme.

That is, in fact, just the kind of rhetorical argument that themajority accepts in these cases. In addition to secular privateschools (129 students), the majority considers public schools withtuition assistance (roughly 1,400 students), magnet schools (13,000students), and community schools (1,900 students), and concludesthat fewer than 20% of pupils receive state vouchers to attendreligious schools.Ante, at 659. (In fact, the numbers wouldseem even more favorable to the majority's argument if enrollmentin traditional public schools without tutoring were considered, analternative the majority thinks relevant to the private choiceenquiry,ante, at 655.) JUSTICE O'CONNOR focuses on how muchmoney is spent on each educational option and notes that at most$8.2 million is spent on vouchers for students attending religiousschools,ante, at 664 (concurring opinion), which is only 6%of the State's expenditure if one includes separate funding forCleveland's community ($9.4 million) and magnet ($114.8 million)public schools. The variations show how results may shift when ajudge can pick and choose the alternatives to use in thecomparisons, and they also show what dependably comfortable resultsthe choice crite-

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rion will yield if the identification of relevant choices iswide open. If the choice of relevant alternatives is an open one,proponents of voucher aid will always win, because they will alwaysbe able to find a "choice" somewhere that will show the bulk ofpublic spending to be secular. The choice enquiry will be dilutedto the point that it can screen out nothing, and the result willalways be determined by selecting the alternatives to be treated aschoices.

Confining the relevant choices to spending choices, on the otherhand, is not vulnerable to comparable criticism. Although leavingthe selection of alternatives for choice wide open, as the majoritywould, virtually guarantees the availability of a "choice" thatwill satisfy the criterion, limiting the choices to spendingchoices will not guarantee a negative result in every case. Theremay, after all, be cases in which a voucher recipient will have areal choice, with enough secular private school desks in relationto the number of religious ones, and a voucher amount high enoughto meet secular private school tuition levels. Seeinfra, at704-707. But, even to the extent that choice-to-spend does tend tolimit the number of religious funding options that pass muster, thechoice criterion has to be understood this way in order, as I havesaid, for it to function as a limiting principle.9 Otherwise

9 The need for a limit is one answer to JUSTICE O'CONNOR, whoargues at length that community schools should factor in the"private choice" calculus.Ante, at 672-673 (concurringopinion). To be fair, community schools do exhibit some features ofprivate schools: they are autonomously managed without anyinterference from the school district or State and two have priorhistories as private schools. It may be, then, that communityschools might arguably count as choices because they are not likeother public schools run by the State or municipality, but insubstance merely private schools with state funding outside thevoucher program.

But once any public school is deemed a relevant object ofchoice, there is no stopping this progression. For example, boththe majority and JUSTICE O'CONNOR characterize public magnetschools as an independent category of genuine educational options,simply because they are "nontraditional" public schools. But theydo not share the "private school" features of community schools,and the only thing that distinguishes them

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there is surely no point in requiring the choice to be a true orreal or genuine one.10

from "traditional" public schools is their thematic focus, whichin some cases appears to be nothing more than creative marketing.See,e.g., Cleveland Municipal School District,Magnet and Thematic Programs/ Schools (including, as magnetschools, "[f]undamental [e]ducation [c]enters," which employ"[t]raditional classrooms and teaching methods with an emphasis onbasic skills"; and "[a]ccelerated [l]earning" schools, which relyon "[i]nstructional strategies [that] provide opportunities forstudents to build on individual strengths, interests andtalents").

10 And how should we decide which "choices" are "genuine" if therange of relevant choices is theoretically wide open? The showcaseeducational options that the majority and JUSTICE O'CONNOR trumpetare Cleveland's 10 community schools, but they are hardly genuinechoices. Two do not even enroll students in kindergarten throughthird grade, App. 162a, and thus parents contemplatingparticipation in the voucher program cannot select those schools.See Ohio Rev. Code Ann. §3313.975(C)(1) (West Supp. 2002)("[N]o new students may receive scholarships unless they areenrolled in grade kindergarten, one, two, or three"). One schoolwas not "in operation" as of 1999, and in any event targetedstudents below the federal poverty line, App. 162a, not allvoucher-eligible students, see n. 21,infra. Another schoolwas a special population school for students with "numeroussuspensions, behavioral problems and who are a grade level belowtheir peers," App. 162a, which, as JUSTICE O'CONNOR points out, maybe "more attractive to certain inner-city parents,"ante, at674, but is probably not an attractive "choice" for mostparents.

Of the six remaining schools, the most recent statistics onfourth-grade student performance (unavailable for one school)indicate: three scored well below the Cleveland average in each offive tested subjects on state proficiency examinations, one scoredabove in one subject, and only one community school, Old BrooklynMontessori School, was even an arguable competitor, scoringslightly better than traditional public schools in three subjects,and somewhat below in two. See Ohio Dept. of Ed., 2002 CommunitySchool Report Card, Hope Academy, Lincoln Park, p. 5;id.,Hope Academy, Cathedral Campus, at 5;id., Hope Academy,Chapelside Campus, at 5;id., Hope Academy, Broadway Campus,at 5;id., Old Brooklyn Montessori School, at 5; 2002District Report Card, Cleveland Municipal School District, p. 1.These statistics are consistent with 1999 test results, which wereonly available for three of the schools. Brief for Ohio SchoolBoards Association et al. asAmici Curiae 26-28 (forexample, 34.3% of students

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It is not, of course, that I think even a genuine choicecriterion is up to the task of the Establishment Clause whensubstantial state funds go to religious teaching; the discussion inPart III,infra, shows that it is not. The point is simplythat if the majority wishes to claim that choice is a criterion, itmust define choice in a way that can function as a criterion with apractical capacity to screen something out.

If, contrary to the majority, we ask the right question aboutgenuine choice to use the vouchers, the answer shows that somethingis influencing choices in a way that aims the money in a religiousdirection: of 56 private schools in the district participating inthe voucher program (only 53 of which accepted voucher students in1999-2000), 46 of them are religious; 96.6% of all voucherrecipients go to religious schools, only 3.4% to nonreligious ones.See App. 281a286a. Unfortunately for the majority position, thereis no explanation for this that suggests the religious directionresults simply from free choices by parents. One answer to thesestatistics, for example, which would be consistent with the genuinechoice claimed to be operating, might be that 96.6% of familieschoosing to avail themselves of vouchers choose to educate theirchildren in schools of their own religion. This would not, in myview, render the scheme constitutional, but it would speak to themajority's choice criterion.

in the Cleveland City School District were proficient in math,as compared with 3.3% in Hope Chapelside and 0% in HopeCathedral).

I think that objective academic excellence should be thebenchmark in comparing schools under the majority's test; JUSTICEO'CONNOR prefers comparing educational options on the basis ofsubjective "parental satisfaction,"ante, at 675, and I amsure there are other plausible ways to evaluate "genuine choices."Until now, our cases have never talked about the quality ofeducational options by whatever standard, but now that everyeducational option is a relevant "choice," this is what the"genuine and independent private choice" enquiry,ante, at652 (opinion of the Court), would seem to require if it is to haveany meaning at all. But if that is what genuine choice means, whatdoes this enquiry have to do with the Establishment Clause?

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Evidence shows, however, that almost two out of three familiesusing vouchers to send their children to religious schools did notembrace the religion of those schools. App. to Pet. for Cert. inNo. 00-1777, p. 147aY The families made it clear they had notchosen the schools because they wished their children to beproselytized in a religion not their own, or in any religion, butbecause of educational opportunity.12

Even so, the fact that some 2,270 students chose to apply theirvouchers to schools of other religions, App. 281a-286a, might beconsistent with true choice if the students "chose" their religiousschools over a wide array of private nonreligious options, or if itcould be shown generally that Ohio's program had no effect oneducational choices and thus no impermissible effect of advancingreligious education. But both possibilities are contrary to fact.First, even if all existing nonreligious private schools inCleveland were willing to accept large numbers of voucher students,only a few more than the 129 currently enrolled in such schoolswould be able to attend, as the total enrollment at allnonreligious private schools in Cleveland for kindergarten througheighth grade is only 510 children, see Brief for CaliforniaAlliance for Public Schools asAmicus Curiae 15, and thereis no indication that these schools have many open seats.13 Second,the

11 For example, 40% of families who sent their children toprivate schools for the first time under the voucher program wereBaptist, App. 118a, but only one school, enrolling 44 voucherstudents, is Baptist,id., at 284a.

12 When parents were surveyed as to their motives for enrollingtheir children in the voucher program, 96.4% cited a bettereducation than available in the public schools, and 95% said theirchildren's safety.Id., at 69a-70a. When asked specificallyin one study to identify the most important factor in selectingamong participating private schools, 60% of parents mentionedacademic quality, teacher quality, or the substance of what istaught (presumably secular); only 15% mentioned the religiousaffiliation of the school as even a consideration.Id., at119a.

13JU8TICE O'CONNOR points out that "there is no record evidencethat any voucher-eligible student was turned away from anonreligious private school in the voucher program."Ante,at 671. But there is equally no

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$2,500 cap that the program places on tuition for participatinglow-income pupils has the effect of curtailing the participation ofnonreligious schools: "nonreligious schools with higher tuition(about $4,000) stated that they could afford to accommodate just afew voucher students." 14 By comparison, the average tuition atparticipating Catholic schools in Cleveland in 1999-2000 was$1,592, almost $1,000 below the cap.15

evidence to support her assertion that "many parents withvouchers selected nonreligious private schools over religiousalternatives,"ibid., and in fact the evidence is to thecontrary, as only 129 students used vouchers at privatenonreligious schools.

14 General Accounting Office Report No. 01-914, School Vouchers:Publicly Funded Programs in Cleveland and Milwaukee 25 (Aug. 2001)(GAO Report). Of the 10 nonreligious private schools that"participate" in the Cleveland voucher program, 3 currently enrollno voucher students. And of the remaining seven schools, oneenrolls over half of the 129 students that attend thesenonreligious schools, while only two others enroll more than 8voucher students. App. 281a-286a. Such schools can charge fulltuition to students whose families do not qualify as "low income,"but unless the number of vouchers are drastically increased, it isunlikely that these students will constitute a large fraction ofvoucher recipients, as the program gives preference in theallocation of vouchers to low-income children. See Ohio Rev. CodeAnn. § 3313.978(A) (West Supp. 2002).

15GAO Report 25. A 1993-1994 national study reported a similaraverage tuition for Catholic elementary schools ($1,572), buthigher tuition for other religious schools ($2,213), andnonreligious schools ($3,773). U. S. Dept. of Ed., Office ofEducational Research and Improvement, National Center for EducationStatistics, Private Schools in the United States: A StatisticalProfile, 1993-94 (NCES 1997-459 June 1997) (Table 1.5). The figuresare explained in part by the lower teaching expenses of thereligious schools and general support by the parishes that runthem. Catholic schools, for example, received 24.1% of theirrevenue from parish subsidies in the 2000-2001 school year.National Catholic Educational Association, Balance Sheet forCatholic Elementary Schools: 2001 Income and Expenses 25 (2001).Catholic schools also often rely on priests or members of religiouscommunities to serve as principals, 32% of 550 reporting schools inone study,id., at 21; at the elementary school level, theaverage salary of religious sisters serving as principals in2000-2001 was $28,876, as compared to lay principals, who receivedon average $45,154,

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Of course, the obvious fix would be to increase the value ofvouchers so that existing nonreligious private and nonCatholicreligious schools would be able to enroll more voucher students,and to provide incentives for educators to create new such schoolsgiven that few presently exist. Private choice, if as robust asthat available to the seminarian inWitters, would then be"true private choice" under the majority's criterion. But it issimply unrealistic to presume that parents of elementary and middleschool students in Cleveland will have a range of secular andreligious choices even arguably comparable to the statewide programfor vocational and higher education inWitters. And to getto that hypothetical point would require that such massivefinancial support be made available to religion as to disserveevery objective of the Establishment Clause even more than thepresent scheme does. See Part III-B,infra.16

and public school principals who reported an average salary of$72,587.Ibid.

JUSTICE O'CONNOR argues that nonreligious private schools cancompete with Catholic and other religious schools below the $2,500tuition cap. Seeante, at 670-671. The record does notsupport this assertion, as only three secular private schools inCleveland enroll more than eight voucher students. See n. 14,supra. Nor is it true, as she suggests, that our nationalstatistics are spurious because secular schools cater to adifferent market from Catholic or other religious schools: whilethere is a spectrum of nonreligious private schools, there islikely a commensurate range of low-end and high-end religiousschools. My point is that at each level, the religious schools havea comparative cost advantage due to church subsidies, donations ofthe faithful, and the like. The majority says that nonreligiousprivate schools in Cleveland derive similar benefits from"third-party contributions,"ante, at 656, n. 4, but the oneaffidavit in the record that backs up this assertion with dataconcerns a private school for "emotionally disabled anddevelopmentally delayed children" that received 11 % of its budgetfrom the United Way organization, App. 194a-195a, a largeproportion to be sure, but not even half of the 24.1 % of budgetthat Catholic schools on average receive in parish subsidies alone,seesupra this note.

16 The majority notes that I argue both that the Ohio program isunconstitutional because the voucher amount is too low to createreal private choice and that any greater expenditure would beunconstitutional as

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There is, in any case, no way to interpret the 96.6% of currentvoucher money going to religious schools as reflecting a free andgenuine choice by the families that apply for vouchers. The 96.6%reflects, instead, the fact that too few nonreligious school desksare available and few but religious schools can afford to acceptmore than a handful of voucher students. And contrary to themajority's assertion,ante, at 654, public schools inadjacent districts hardly have a financial incentive to participatein the Ohio voucher program, and none has.17 For the overwhelmingnumber of children in the voucher scheme, the only alternative tothe public schools is religious. And it is entirely irrelevant thatthe State did not deliberately design the network of privateschools for the sake of channeling money into religiousinstitutions. The criterion is one of genuinely free choice on thepart of the private individuals who choose, and a Hobson's choiceis not a choice, whatever the reason for being Hobsonian.

III

I do not dissent merely because the majority has misapplied itsown law, for even if I assumedarguendo that the

well.Ante, at 656-657, n. 4. The majority is dead rightabout this, and there is no inconsistency here: any voucher programthat satisfied the majority's requirement of "true private choice"would be even more egregiously unconstitutional than the currentscheme due to the substantial amount of aid to religious teachingthat would be required.

17 As the Court points out,ante, at 645-646, n. 1, anout-of-district public school that participates will receive a$2,250 voucher for each Cleveland student on top of its normalstate funding. The basic state funding, though, is a drop in thebucket as compared to the cost of educating that student, as muchof the cost (at least in relatively affluent areas withpresumptively better academic standards) is paid by local incomeand property taxes. See Brief for Ohio School Boards Association etal. asAmici Curiae 19-21. The only adjacent district inwhich the voucher amount is close enough to cover the localcontribution is East Cleveland City (local contribution, $2,019,see Ohio Dept. of Ed., 2002 Community School Report Card, EastCleveland City School District, p. 2), but its public-school systemhardly provides an attractive alternative for Cleveland parents, asit too has been classified by Ohio as an "academic emergency"district. Seeibid.

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majority's formal criteria were satisfied on the facts, today'sconclusion would be profoundly at odds with the Constitution. Proofof this is clear on two levels. The first is circumstantial, in thenow discarded symptom of violation, the substantial dimension ofthe aid. The second is direct, in the defiance of every objectivesupposed to be served by the bar against establishment.

A

The scale of the aid to religious schools approved today isunprecedented, both in the number of dollars and in the proportionof systemic school expenditure supported. Each measure has receivedattention in previous cases. On one hand, the sheer quantity ofaid, when delivered to a class of religious primary and secondaryschools, was suspect on the theory that the greater the aid, thegreater its proportion to a religious school's existingexpenditures, and the greater the likelihood that public money wassupporting religious as well as secular instruction. As we said inMeek, "it would simply ignore reality to attempt to separatesecular educational functions from the predominantly religiousrole" as the object of aid that comes in "substantial amounts." 421U. S., at 365. Cf.Nyquist, 413 U. S., at 787-788 (rejectingargument that tuition assistance covered only 15% of educationcosts, presumably secular, at religious schools). Conversely, themore "attenuated [the] financial benefit ... that eventually flowsto parochial schools," the more the Court has been willing to finda form of state aid permissible.Mueller, 463 U. S., at400.18

18 The majority relies onMueller, Agostini, andMitchell to dispute the relevance of the large number ofstudents that use vouchers to attend religious schools,ante, at 658, but the reliance is inapt because each ofthose cases involved insubstantial benefits to the religiousschools, regardless of the number of students that benefited. See,e. g., Mueller, 463 U. S., at 391 ($112 in tax benefit tothe highest bracket taxpayer, see Brief for Respondents Becker etal. inMueller v.Allen, O. T. 1982, No. 82-195, p.5);Agostini, 521 U. S., at 210 (aid "must 'supplement, andin no case supplant' ");Mitchell, 530 U. S., at 866(O'CONNOR, J., concurring in judgment)("de minimis"). Seealsosupra, at 694-695.

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On the other hand, the Court has found the gross amountunhelpful for Establishment Clause analysis when the aid afforded abenefit solely to one individual, however substantial as to him,but only an incidental benefit to the religious school at which theindividual chose to spend the State's money. SeeWitters,474 U. S., at 488; cf.Zobrest, 509 U. S., at 12. Whenneither the design nor the implementation of an aid scheme channelsa series of individual students' subsidies toward religiousrecipients, the relevant beneficiaries for establishment purposes,the Establishment Clause is unlikely to be implicated. Themajority's reliance on the observations of five Members of theCourt inWitters as to the irrelevance of substantiality ofaid in that case, seeante, at 651, is therefore beside thepoint in the matter before us, which involves considerable sums ofpublic funds systematically distributed through thousands ofstudents attending religious elementary and middle schools in thecity of Cleveland. 19

19 No less irrelevant, and lacking even arguable support in ourcases, is JUSTICE O'CONNOR'S argument that the $8.2 million intax-raised funds distributed under the Ohio program to religiousschools is permissible under the Establishment Clause because it"pales in comparison to the amount of funds that federal, state,and local governments already provide religious institutions,"ante, at 665. Our cases have consistently held that statebenefits at some level can go to religious institutions when therecipients are not pervasively sectarian, see,e. g., Tiltonv.Richardson, 403 U. S. 672 (1971) (aid to church-relatedcolleges and universities);Bradfield v.Roberts,175 U. S. 291(1899) (religious hospitals); when the benefit comes in the form oftax exemption or deduction, see,e. g., Walz v.TaxComm'n of City of New York,397 U. S. 664 (1970)(property-tax exemptions);Mueller v.Allen,463 U. S. 388 (1983) (taxdeductions for educational expenses); or when the aid can plausiblybe said to go to individual university students, see,e. g.,Witters v.Washington Dept. of Servs. for Blind,474 U. S. 481(1986) (state scholarship programs for higher education, and byextension federal programs such as the G. I. Bill). The fact thatthose cases often allow for large amounts of aid says nothing aboutdirect aid to pervasively sectarian schools for religious teaching.This "greater justifies the lesser" argument not only ignores theaforementioned cases, it would completely swallow up ouraid-to-school cases fromEverson onward: if $8.2 million invouchers is acceptable, for example,

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The Cleveland voucher program has cost Ohio taxpayers $33million since its implementation in 1996 ($28 million in voucherpayments, $5 million in administrative costs), and its cost wasexpected to exceed $8 million in the 2001-2002 school year. Peoplefor the American Way Foundation, Five Years and Counting: A CloserLook at the Cleveland Voucher Program 1-2 (Sept. 25, 2001)(hereinafter Cleveland Voucher Program) (cited in Brief forNational School Boards Association et al. asAmici Curiae9). These tax-raised funds are on top of the textbooks, reading andmath tutors, laboratory equipment, and the like that Ohio providesto private schools, worth roughly $600 per child. Cleveland VoucherProgram 2.20

The gross amounts of public money contributed are symptomatic ofthe scope of what the taxpayers' money buys for a broad class ofreligious-school students. In paying for practically the fullamount of tuition for thousands of qualifying students,21 cf.Nyquist, supra, at 781-783 (state aid amounting to 50% oftuition was unconstitutional), the scholarships purchase everythingthat tuition purchases, be it instruction in math or indoctrinationin faith. The conse-

why is there any requirement against greater thandeminimis diversion to religious uses? SeeMitchell,supra, at 866 (O'CONNOR, J., concurring in judgment).

20 The amount of federal aid that may go to religious educationafter today's decision is startling: according to one estimate, thecost of a national voucher program would be $73 billion, 25% morethan the current national public-education budget. People for theAmerican Way Foundation, Community Voice or Captive of the Right?10 (Dec. 2001).

21 Most, if not all, participating students come from familieswith incomes below 200% of the poverty line (at least 60% are belowthe poverty line, App. in Nos. 00-3055, etc.(CA6), p.1679), and are therefore eligible for vouchers covering 90% oftuition, Ohio Rev. Code Ann. § 3313.978(A) (West Supp. 2002); theymay make up the 10% shortfall by "in-kind contributions orservices," which the recipient school "shall permit," §3313.976(A)(8). Any higher income students in the program receivevouchers paying 75% of tuition costs. § 3313.978(A).

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quences of "substantial" aid hypothesized inMeek arerealized here: the majority makes no pretense that substantialamounts of tax money are not systematically underwriting religiouspractice and indoctrination.

B

It is virtually superfluous to point out that every objectiveunderlying the prohibition of religious establishment is betrayedby this scheme, but something has to be said about the enormity ofthe violation. I anticipated these objectives earlier,supra, at 689-690, in discussingEverson, whichcataloged them, the first being respect for freedom of conscience.Jefferson described it as the idea that no one "shall be compelledto ... support any religious worship, place, or ministrywhatsoever," A Bill for Establishing Religious Freedom, in 5 TheFounders' Constitution 84 (P. Kurland & R. Lerner eds. 1987),even a "teacher of his own religious persuasion,"ibid., andMadison thought it violated by any "'authority which can force acitizen to contribute three pence ... of his property for thesupport of any ... establishment.' " Memorial and Remonstrance ~ 3,reprinted inEverson, 330 U. S., at 65-66. "Any tax toestablish religion is antithetical to the command that the minds ofmen always be wholly free,"Mitchell, 530 U. S., at 871(SOUTER, J., dissenting) (internal quotation marks and citationsomitted).22 Madison's objection to three pence has simply been lostin the majority's formalism.

As for the second objective, to save religion from its owncorruption, Madison wrote of the" 'experience ... that eccle-

22 As a historical matter, the protection of liberty ofconscience may well have been the central objective served by theEstablishment Clause. See Feldman, Intellectual Origins of theEstablishment Clause, 77 N. Y. U. L. Rev. 346, 398 (May 2002) ("Inthe time between the proposal of the Constitution and of the Billof Rights, the predominant, not to say exclusive, argument againstestablished churches was that they had the potential to violateliberty of conscience").

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siastical establishments, instead of maintaining the purity andefficacy of Religion, have had a contrary operation.'" Memorial andRemonstrance ~ 7, reprinted inEverson, 330 U. S., at 67. InMadison's time, the manifestations were "pride and indolence in theClergy; ignorance and servility in the laity[,] in both,superstition, bigotry and persecution,"ibid.; in the 21stcentury, the risk is one of "corrosive secularism" to religiousschools,Ball, 473 U. S., at 385, and the specific threat isto the primacy of the schools' mission to educate the children ofthe faithful according to the unaltered precepts of their faith.Even "[t]he favored religion may be compromised as politicalfigures reshape the religion's beliefs for their own purposes; itmay be reformed as government largesse brings governmentregulation."Lee v.Weisman,505 U. S. 577, 608 (1992)(Blackmun, J., concurring).

The risk is already being realized. In Ohio, for example, acondition of receiving government money under the program is thatparticipating religious schools may not "discriminate on the basisof ... religion," Ohio Rev. Code Ann. § 3313.976(A)(4) (West Supp.2002), which means the school may not give admission preferences tochildren who are members of the patron faith; children of a parishare generally consigned to the same admission lotteries asnonbelievers, §§ 3313.977(A)(1)(c)-(d). This indeed was the exactobject of a 1999 amendment repealing the portion of a predecessorstatute that had allowed an admission preference for "[c]hildren... whose parents are affiliated with any organization thatprovides financial support to the school, at the discretion of theschool." § 3313.977(A)(1)(d) (West 1999). Nor is the State'sreligious antidiscrimination restriction limited to studentadmission policies: by its terms, a participating religious schoolmay well be forbidden to choose a member of its own clergy to serveas teacher or principal over a layperson of a different religionclaiming

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equal qualification for the job.23 Cf. National CatholicEducational Association, Balance Sheet for Catholic ElementarySchools: 2001 Income and Expenses 25 (2001) ("31% of [reportingCatholic elementary and middle] schools had at least one full-timeteacher who was a religious sister"). Indeed,

§ 3313.976(A)(6) (West Supp. 2002), could be understood (orsubsequently broadened) to prohibit religions from teachingtraditionally legitimate articles of faith as to the error,sinfulness, or ignorance of others,24 if they want government moneyfor their schools.

23 And the courts will, of course, be drawn into disputes aboutwhether a religious school's employment practices violated the Ohiostatute. In part precisely to avoid this sort of involvement, someCourts of Appeals have held that religious groups enjoy a FirstAmendment exemption for clergy from state and federal lawsprohibiting discrimination on the basis of race or ethnic origin.See,e. g., Rayburn v.General Conference of Seventh-DayAdventists,772 F.2d1164, 1170(CA41985) ("The application of Title VII toemployment decisions of this nature would result in an intolerablyclose relationship between church and state both on a substantiveand procedural level");EEOC v.Catholic Univ. ofAmerica,83 F.3d455, 470 (CADC 1996);Young v.Northern Ill.Conference of United Methodist Church,21F.3d 184, 187(CA7 1994). This approach would seem to beblocked in Ohio by the same antidiscrimination provision, whichalso covers "race ... or ethnic background." Ohio Rev. Code Ann. §3313.976(A)(4) (West Supp. 2002).

24 See,e.g., Christian New Testament (2Corinthians 6:14) (King James Version) ("Be ye not unequally yokedtogether with unbelievers: for what fellowship hath righteousnesswith unrighteousness? and what communion hath light withdarkness?"); The Book of Mormon (2 Nephi 9:24) ("And if they willnot repent and believe in his name, and be baptized in his name,and endure to the end, they must be damned; for the Lord God, theHoly One of Israel, has spoken it"); Pentateuch (Deut. 29:19) (TheNew Jewish Publication Society Translation) (for one who convertsto another faith, "[t]he LORD will never forgive him; rather willthe LORD'S anger and passion rage against that man, till everysanction recorded in this book comes down upon him, and the LORDblots out his name from under heaven");

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For perspective on this foot-in-the-door of religiousregulation, it is well to remember that the money has barely begunto flow. Prior examples of aid, whether grants through individualsor in-kind assistance, were never significant enough to alter thebasic fiscal structure of religious schools; state aid was welcome,but not indispensable. See,e. g., Mitchell, 530 U. S., at802 (federal funds could only supplement funds from nonfederalsources);Agostini, 521 U. S., at 210 (federally fundedservices could" 'supplement, and in no case supplant, the level ofservices'" already provided). But given the figures alreadyinvolved here, there is no question that religious schools in Ohioare on the way to becoming bigger businesses with budgets enhancedto fit their new stream of tax-raised income. See,e.g., People for the American Way Foundation, A Painful Price5, 9, 11 (Feb. 14,2002) (of 91 schools participating in theMilwaukee program, 75 received voucher payments in excess oftuition, 61 of those were religious and averaged $185,000 worth ofoverpayment per school, justified in part to "raise low salaries").The administrators of those same schools are also no doubtfollowing the politics of a move in the Ohio State Senate to raisethe current maximum value of a school voucher from $2,250 to thebase amount of current state spending on each public school student($4,814 for the 2001 fiscal year). See Bloedel, Bill Analysis of S.B. No. 89, 124th Ohio Gen. Assembly, regular session 2001-2002(Ohio Legislative Service Commission). Ohio, in fact, is merelyreplicating the experience in Wisconsin, where a similar increasein the value of educational vouchers in Milwaukee has induced thecreation of some 23 new private schools, Public Policy Forum,Research Brief, vol. 90, no. 1, p. 3 (Jan. 23, 2002), some ofwhich, we may safely surmise, are religious. New schools havepresumably

The Koran 334 (The Cow Ch. 2:1) (N. Dawood transl. 4th rev. ed.1974) ("As for the unbelievers, whether you forewarn them or not,they will not have faith. Allah has set a seal upon their heartsand ears; their sight is dimmed and a grievous punishment awaitsthem").

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pegged their financial prospects to the government from thestart, and the odds are that increases in government aid will bringthe threshold voucher amount closer to the tuition at even moreexpensive religious schools.

When government aid goes up, so does reliance on it; the onlything likely to go down is independence. If Justice Douglas inAllen was concerned with state agencies, influenced bypowerful religious groups, choosing the textbooks that parochialschools would use, 392 U. S., at 265 (dissenting opinion), how muchmore is there reason to wonder when dependence will become greatenough to give the State of Ohio an effective veto over basicdecisions on the content of curriculums? A day will come whenreligious schools will learn what political leverage can do, justas Ohio's politicians are now getting a lesson in the leverageexercised by religion.

Increased voucher spending is not, however, the sole portent ofgrowing regulation of religious practice in the school, for statemandates to moderate religious teaching may well be the mostobvious response to the third concern behind the ban onestablishment, its inextricable link with social conflict. SeeMitchell, supra, at 872 (SOUTER, J., dissenting);Everson, 330 U. S., at 8-11. As appropriations for religioussubsidy rise, competition for the money will tap sectarianreligion's capacity for discord. "Public money devoted to paymentof religious costs, educational or other, brings the quest formore. It brings too the struggle of sect against sect for thelarger share or for any. Here one by numbers alone will benefitmost, there another."Id., at 53. (Rutledge, J.,dissenting).

JUSTICE BREYER has addressed this issue in his own dissentingopinion, which I join, and here it is enough to say that theintensity of the expectable friction can be gauged by realizingthat the scramble for money will energize not only contendingsectarians, but taxpayers who take their liberty of conscienceseriously. Religious teaching at taxpayer

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expense simply cannot be cordoned from taxpayer politics, andevery major religion currently espouses social positions thatprovoke intense opposition. Not all taxpaying Protestant citizens,for example, will be content to underwrite the teaching of theRoman Catholic Church condemning the death penalty.25 Nor will allof America's Muslims acquiesce in paying for the endorsement of thereligious Zionism taught in many religious Jewish schools, whichcombines "a nationalistic sentiment" in support of Israel with a"deeply religious" element.26 Nor will every secular taxpayer becontent to support Muslim views on differential treatment of thesexes,27 or, for that matter, to fund the espousal of a wife'sobligation of obedience to her husband, presumably taught in anyschools adopting the articles of faith of the Southern BaptistConvention.28 Views like these, and innumerable others, have beensafe in the sectarian pulpits and classrooms of this Nation notonly because the Free Exercise Clause protects them directly, butbecause the ban on supporting religious establishment has protectedfree exercise, by keeping it relatively private. With the arrivalof vouchers in religious schools, that privacy will go, and alongwith it will go confidence that religious disagreement will staymoderate.

***

If the divisiveness permitted by today's majority is to beavoided in the short term, it will be avoided only by action

25 See R. Martino, Abolition of the Death Penalty (Nov. 2, 1999)("The position of the Holy See, therefore, is that authorities,even for the most serious crimes, should limit themselves tonon-lethal means of punishment") (citing John Paul II,Evangelium Vitae, n. 56).

26 H. Donin, To Be a Jew 15 (1972).

27 See R. Martin, Islamic Studies 224 (2d ed. 1996)(interpreting the Koran to mean that "[m]en are responsible to earna living and provide for their families; women bear children andrun the household").

28 See The Baptist Faith and Message, Art. XVIII, available atwww. sbc.net/bfm/bfm2000.asp#Xviii (available in Clerk of Court'scase file) ("A wife is to submit herself graciously to the servantleadership of her husband even as the church willingly submits tothe headship of Christ").

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of the political branches at the state and national levels.Legislatures not driven to desperation by the problems of publiceducation may be able to see the threat in vouchers negotiable insectarian schools. Perhaps even cities with problems likeCleveland's will perceive the danger, now that they know a federalcourt will not save them from it.

My own course as a judge on the Court cannot, however, simply beto hope that the political branches will save us from theconsequences of the majority's decision.Everson's statementis still the touchstone of sound law, even though the reality isthat in the matter of educational aid the Establishment Clause haslargely been read away. True, the majority has not approvedvouchers for religious schools alone, or aid earmarked forreligious instruction. But no scheme so clumsy will ever get beforeus, and in the cases that we may see, like these, the EstablishmentClause is largely silenced. I do not have the option to leave itsilent, and I hope that a future Court will reconsider to day'sdramatic departure from basic Establishment Clause principle.

JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE SOUTERjoin, dissenting.

I join JUSTICE SOUTER'S opinion, and I agree substantially withJUSTICE STEVENS. I write separately, however, to emphasize the riskthat publicly financed voucher programs pose in terms ofreligiously based social conflict. I do so because I believe thatthe Establishment Clause concern for protecting the Nation's socialfabric from religious conflict poses an overriding obstacle to theimplementation of this well-intentioned school voucher program. Andby explaining the nature of the concern, I hope to demonstrate why,in my view, "parental choice" cannot significantly alleviate theconstitutional problem. See Part IV,infra.

I

The First Amendment begins with a prohibition, that "Congressshall make no law respecting an establishment of

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religion," and a guarantee, that the government shall notprohibit "the free exercise thereof." These Clauses embody anunderstanding, reached in the 17th century after decades ofreligious war, that liberty and social stability demand a religioustolerance that respects the religious views of all citizens,permits those citizens to "worship God in their own way," andallows all families to "teach their children and to form theircharacters" as they wish. C. Radcliffe, The Law & Its Compass71 (1960). The Clauses reflect the Framers' vision of an AmericanNation free of the religious strife that had long plagued thenations of Europe. See,e.g., Freund, Public Aid toParochial Schools, 82 Harv. L. Rev. 1680, 1692 (1969) (religiousstrife was "one of the principal evils that the first amendmentsought to forestall"); B. Kosmin & S. Lachman, One Nation UnderGod: Religion in Contemporary American Society 24 (1993) (FirstAmendment designed in "part to prevent the religious wars of Europefrom entering the United States"). Whatever the Framers might havethought about particular 18th-century school funding practices,they undeniably intended an interpretation of the Religion Clausesthat would implement this basic First Amendment objective.

In part for this reason, the Court's 20th-century EstablishmentClause cases-both those limiting the practice of religion in publicschools and those limiting the public funding of private religiouseducation-focused directly upon social conflict, potentiallycreated when government becomes involved in religious education. InEngel v.Vitale,370 U. S. 421 (1962), theCourt held that the Establishment Clause forbids prayer in publicelementary and secondary schools. It did so in part because itrecognized the "anguish, hardship and bitter strife that could comewhen zealous religious groups struggl[e] with one another to obtainthe Government's stamp of approval .... "Id., at 429. Andit added:

"The history of governmentally established religion, both inEngland and in this country, showed that when-

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ever government had allied itself with one particular form ofreligion, the inevitable result had been that it had incurred thehatred, disrespect and even contempt of those who held contrarybeliefs."Id., at 431.

See alsoLee v.Weisman,505 U. S. 577, 588 (1992)(striking down school-sanctioned prayer at high school graduationceremony because "potential for divisiveness" has "particularrelevance" in school environment);School Dist. of AbingtonTownship v.Schempp,374 U. S. 203, 307 (1963)(Goldberg, J., concurring) (Bible-reading program violatedEstablishment Clause in part because it gave rise "to those verydivisive influences and inhibitions of freedom" that come withgovernment efforts to impose religious influence on "youngimpressionable [school] children").

InLemon v.Kurtzman,403 U. S. 602 (1971), theCourt held that the Establishment Clause forbids state funding,through salary supplements, of religious school teachers. It did soin part because of the "threat" that this funding would createreligious "divisiveness" that would harm "the normal politicalprocess."Id., at 622. The Court explained:

"[P]olitical debate and division ... are normal and healthymanifestations of our democratic system of government, butpolitical division along religious lines was one of the principalevils against which [the First Amendment's religious clauses were]... intended to protect."Ibid.

And inCommittee for Public Ed. &ReligiousLiberty v.Nyquist,413 U. S. 756, 794(1973), the Court struck down a state statute that, much likevoucher programs, provided aid for parents whose children attendedreligious schools, explaining that the "assistance of the sort hereinvolved carries grave potential for ... continuing politicalstrife over aid to religion."

When it decided these 20th-century Establishment Clause cases,the Court did not deny that an earlier American soci-

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ety might have found a less clear-cut church/state separationcompatible with social tranquility. Indeed, historians point outthat during the early years of the Republic, Americanschools-including the first public schools-were Protestant incharacter. Their students recited Protestant prayers, read the KingJames version of the Bible, and learned Protestant religiousideals. See,e.g., D. Tyack, Onward ChristianSoldiers: Religion in the American Common School, in History andEducation 217-226 (P. Nash ed. 1970). Those practices may havewrongly discriminated against members of minority religions, butgiven the small number of such individuals, the teaching ofProtestant religions in schools did not threaten serious socialconflict. See Kosmin & Lachman,supra, at 45 (Catholicsconstituted less than 2% of American church-affiliated populationat time of founding).

The 20th-century Court was fully aware, however, thatimmigration and growth had changed American society dramaticallysince its early years. By 1850, 1.6 million Catholics lived inAmerica, and by 1900 that number rose to 12 million. Jeffries &Ryan, A Political History of the Establishment Clause, 100 Mich. L.Rev. 279, 299-300 (Nov. 2001). There were similar percentageincreases in the Jewish population. Kosmin & Lachman,supra, at 45-46. Not surprisingly, with this increase innumbers, members of nonProtestant religions, particularlyCatholics, began to resist the Protestant domination of the publicschools. Scholars report that by the mid-19th century religiousconflict over matters such as Bible reading "grew intense," asCatholics resisted and Protestants fought back to preserve theirdomination. Jeffries & Ryan,supra, at 300. "DreadingCatholic domination," native Protestants "terrorized Catholics." P.Hamburger, Separation of Church and State 219 (2002). In someStates "Catholic students suffered beatings or expulsions forrefusing to read from the Protestant Bible, and crowds ... riotedover whether Catholic children could be

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released from the classroom during Bible reading." Jeffries& Ryan, 100 Mich. L. Rev., at 300.

The 20th-century Court was also aware that political efforts toright the wrong of discrimination against religious minorities inprimary education had failed; in fact they had exacerbatedreligious conflict. Catholics sought equal government support forthe education of their children in the form of aid for privateCatholic schools. But the "Protestant position" on this matter,scholars report, "was that public schools must be 'nonsectarian'(which was usually understood to allow Bible reading and otherProtestant observances) and public money must not support'sectarian' schools (which in practical terms meant Catholic)."Id., at 301. And this sentiment played a significant role increating a movement that sought to amend several stateconstitutions (often successfully), and to amend the United StatesConstitution (unsuccessfully) to make certain that government wouldnot help pay for "sectarian" (i.e., Catholic) schooling forchildren.Id., at 301-305. See also Hamburger,supra,at 287.

These historical circumstances suggest that the Court, applyingthe Establishment Clause through the Fourteenth Amendment to20th-century American society, faced an interpretive dilemma thatwas in part practical. The Court appreciated the religiousdiversity of contemporary American society. SeeSchempp,supra, at 240 (Brennan, J., concurring). It realized that thestatus quo favored some religions at the expense of others. And itunderstood the Establishment Clause to prohibit (among otherthings) any such favoritism. Yethow did the Clause achievethat objective? Did it simply require the government to give eachreligion an equal chance to introduce religion into the primaryschools-a kind of "equal opportunity" approach to theinterpretation of the Establishment Clause? Or, did that Clauseavoid government favoritism of some religions by insisting upon"separation" -that the government achieve

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equal treatment by removing itself from the business ofproviding religious education for children? This interpretivechoice arose in respect both to religious activities in publicschools and government aid to private education.

In both areas the Court concluded that the Establishment Clauserequired "separation," in part because an "equal opportunity"approach was not workable. With respect to religious activities inthe public schools, how could the Clause require public primary andsecondary school teachers, when reading prayers or the Bible,only to treat all religions alike? In many places there weretoo many religions, too diverse a set of religious practices, toomany whose spiritual beliefs denied the virtue of formal religioustraining. This diversity made it difficult, if not impossible, todevise meaningful forms of "equal treatment" by providing an "equalopportunity" for all to introduce their own religious practicesinto the public schools.

With respect to government aid to private education, did nothistory show that efforts to obtain equivalent funding for theprivate education of children whose parents did not hold popularreligious beliefs only exacerbated religious strife? As JusticeRutledge recognized:

"Public money devoted to payment of religious costs, educationalor other, brings the quest for more. It brings too the struggle ofsect against sect for the larger share or for any. Here one[religious sect] by numbers [of adherents] alone will benefit most,there another. This is precisely the history of societies whichhave had an established religion and dissident groups."Everson v.Board of Ed. of Ewing,330 U. S. 1,53-54 (1947)(dissenting opinion).

The upshot is the development of constitutional doctrine thatreads the Establishment Clause as avoiding religious strife,not by providing every religion with anequalopportunity (say, to secure state funding or to pray in thepublic

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schools), but by drawing fairly clear lines ofseparationbetween church and state-at least where the heartland of religiousbelief, such as primary religious education, is at issue.

II

The principle underlying these cases-avoiding religiously basedsocial conflict-remains of great concern. As religiously diverse asAmerica had become when the Court decided its major 20th-centuryEstablishment Clause cases, we are exponentially more diversetoday. America boasts more than 55 different religious groups andsubgroups with a significant number of members. Graduate Center ofthe City University of New York, B. Kosmin, E. Mayer, & A.Keysar, American Religious Identification Survey 12-13 (2001).Major religions include, among others, Protestants, Catholics,Jews, Muslims, Buddhists, Hindus, and Sikhs.Ibid. Andseveral of these major religions contain different subsidiary sectswith different religious beliefs. See Lester, Oh, Gods!, TheAtlantic Monthly 37 (Feb. 2002). Newer Christian immigrant groupsare "expressing their Christianity in languages, customs, andindependent churches that are barely recognizable, and oftencontroversial, for Europeanancestry Catholics and Protestants." H.Ebaugh & J. Chafetz, Religion and the New Immigrants:Continuities and Adaptations in Immigrant Congregations 4 (abridgedstudent ed. 2002).

Under these modern-day circumstances, how is the "equalopportunity" principle to work-without risking the "struggle ofsect against sect" against which Justice Rutledge warned? Schoolvoucher programs finance the religious education of the young. And,if widely adopted, they may well provide billions of dollars thatwill do so. Why will different religions not become concernedabout, and seek to influence, the criteria used to channel thismoney to religious schools? Why will they not want to examine theimplementation of the programs that provide this money-todetermine, for ex-

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ample, whether implementation has biased a program toward oragainst particular sects, or whether recipient religious schoolsare adequately fulfilling a program's criteria? If so, just how isthe State to resolve the resulting controversies without provokinglegitimate fears of the kinds of religious favoritism that, in soreligiously diverse a Nation, threaten social dissension?

Consider the voucher program here at issue. That program insiststhat the religious school accept students of all religions. Doesthat criterion treat fairly groups whose religion forbids them todo so? The program also insists that no participating school"advocate or foster unlawful behavior or teach hatred of any personor group on the basis of race, ethnicity, national origin, orreligion." Ohio Rev. Code Ann. § 3313.976(A)(6) (West Supp. 2002).And it requires the State to "revoke the registration of any schoolif, after a hearing, the superintendent determines that the schoolis in violation" of the program's rules. § 3313.976(B). As oneamicus argues, "it is difficult to imagine a more divisiveactivity" than the appointment of state officials as referees todetermine whether a particular religious doctrine "teaches hatredor advocates lawlessness." Brief for National Committee for PublicEducation and Religious Liberty asAmicus Curiae 23.

How are state officials to adjudicate claims that one religionor another is advocating, for example, civil disobedience inresponse to unjust laws, the use of illegal drugs in a religiousceremony, or resort to force to call attention to what it views asan immoral social practice? What kind of public hearing will therebe in response to claims that one religion or another is continuingto teach a view of history that casts members of other religions inthe worst possible light? How will the public react to governmentfunding for schools that take controversial religious positions ontopics that are of current popular interest-say, the conflict inthe Middle East or the war on terrorism? Yet any major fundingprogram

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for primary religious education will require criteria. And theselection of those criteria, as well as their application,inevitably pose problems that are divisive. Efforts to respond tothese problems not only will seriously entangle church and state,seeLemon, 403 U. S., at 622, but also will promote divisionamong religious groups, as one group or another fears (oftenlegitimately) that it will receive unfair treatment at the hands ofthe government.

I recognize that other nations, for example Great Britain andFrance, have in the past reconciled religious school funding andreligious freedom without creating serious strife. Yet British andFrench societies are religiously more homogeneous-and it bearsnoting that recent waves of immigration have begun to createproblems of social division there as well. See,e.g., The Muslims of France, 75 Foreign Affairs 78 (1996)(describing increased religious strife in France, as exemplified byexpulsion of teenage girls from school for wearing traditionalMuslim scarves); Ahmed, Extreme Prejudice; Muslims in Britain, TheTimes of London, May 2, 1992, p. 10 (describing religious strife inconnection with increased Muslim immigration in Great Britain).

In a society as religiously diverse as ours, the Court hasrecognized that we must rely on the Religion Clauses of the FirstAmendment to protect against religious strife, particularly whenwhat is at issue is an area as central to religious belief as theshaping, through primary education, of the next generation's mindsand spirits. See,e.g., Webster, On the Education ofYouth in America (1790), in Essays on Education in the EarlyRepublic 43, 53, 59 (F. Rudolph ed. 1965) ("[E]ducation of youth"is "of more consequence than making laws and preaching the gospel,because it lays the foundation on which both law and gospel restfor success"); Pope Paul VI, Declaration on Christian Education(1965) ("[T]he Catholic school can be such an aid to thefulfillment of the mission of the People of God and to thefostering of dialogue between

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the Church and mankind, to the benefit of both, it retains evenin our present circumstances the utmost importance").

III

I concede that the Establishment Clause currently permits Statesto channel various forms of assistance to religious schools, forexample, transportation costs for students, computers, and seculartexts. SeeEverson v.Board of Ed. of Ewing,330 U. S. 1 (1947);Mitchell v.Helms,530 U. S. 793 (2000).States now certify the nonsectarian educational content ofreligious school education. See,e. g., New Life Baptist ChurchAcademy v.East Longmeadow,885 F.2d940(CA1 1989). Yet the consequence has not been greatturmoil. But see,e.g., May, Charter School'sReligious Tone; Operation of South Bay Academy Raises Church-StateQuestions, San Francisco Chronicle, Dec. 17, 2001, p. A1(describing increased government supervision of charter schoolsafter complaints that students were "studying Islam in class andpraying with their teachers," and Muslim educators complaining of"'post-Sept. 11 anti-Muslim sentiment' ").

School voucher programs differ, however, in bothkind anddegree from aid programs upheld in the past. They differ inkind because they direct financing to a core function of thechurch: the teaching of religious truths to young children. Forthat reason the constitutional demand for "separation" is ofparticular constitutional concern. See,e. g., Weisman, 505U. S., at 592 ("heightened concerns" in context of primaryeducation);Edwards v.Aguillard,482 U. S. 578, 583584(1987) ("Court has been particularly vigilant in monitoringcompliance with the Establishment Clause in elementary andsecondary schools").

Private schools that participate in Ohio's program, for example,recognize the importance of primary religious education, for theypronounce that their goals are to "communicate the gospel,""provide opportunities to ... experience a faith community,""provide ... for growth in prayer," and "pro-

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vide instruction in religious truths and values." App. 408a,487a. History suggests, not that such private school teaching ofreligion is undesirable, but thatgovernment funding of thiskind of religious endeavor is far more contentious than providingfunding for secular textbooks, computers, vocational training, oreven funding for adults who wish to obtain a college education at areligious university. Seesupra, at 720-722. Contrary toJUSTICE O'CONNOR'S opinion,ante, at 665-666 (concurringopinion), history also shows that government involvement inreligious primary education is far more divisive than stateproperty tax exemptions for religious institutions or taxdeductions for charitable contributions, both of which come farcloser to exemplifying the neutrality that distinguishes, forexample, fire protection on the one hand from direct monetaryassistance on the other. Federal aid to religiously basedhospitals,ante, at 666 (O'CONNOR, J., concurring), is evenfurther removed from education, which lies at the heartland ofreligious belief.

Vouchers also differ indegree. The aid programs recentlyupheld by the Court involved limited amounts of aid to religion.But the majority's analysis here appears to permit a considerableshift of taxpayer dollars from public secular schools to privatereligious schools. That fact, combined with the use to which thesedollars will be put, exacerbates the conflict problem. State aidthat takes the form of peripheral secular items, with prohibitionsagainst diversion of funds to religious teaching, holdssignificantly less potential for social division. In this respectas well, the secular aid upheld inMitchell differsdramatically from the present case. Although it was conceivablethat minor amounts of money could have, contrary to the statute,found their way to the religious activities of the recipients, see530 U. S., at 864 (O'CONNOR, J., concurring in judgment), that caseis at worst the camel's nose, while the litigation before us is thecamel itself.

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IV

I do not believe that the "parental choice" aspect of thevoucher program sufficiently offsets the concerns I have mentioned.Parental choice cannot help the taxpayer who does not want tofinance the religious education of children. It will not alwayshelp the parent who may see little real choice between inadequatenonsectarian public education and adequate education at a schoolwhose religious teachings are contrary to his own. It will notsatisfy religious minorities unable to participate because they aretoo few in number to support the creation of their own privateschools. It will not satisfy groups whose religious beliefspreclude them from participating in a government-sponsored program,and who may well feel ignored as government funds primarily supportthe education of children in the doctrines of the dominantreligions. And it does little to ameliorate the entanglementproblems or the related problems of social division that Part II,supra, describes. Consequently, the fact that the parent maychoose which school can cash the government's voucher check doesnot alleviate the Establishment Clause concerns associated withvoucher programs.

V

The Court, in effect, turns the clock back. It adopts, under thename of "neutrality," an interpretation of the Establishment Clausethat this Court rejected more than half a century ago. In its view,the parental choice that offers each religious group a kind ofequal opportunity to secure government funding overcomes theEstablishment Clause concern for social concord. An earlier Courtfound that "equal opportunity" principle insufficient; it read theClause as insisting upon greater separation of church and state, atleast in respect to primary education. SeeNyquist, 413 U.S., at 783. In a society composed of many different religiouscreeds, I fear that this present departure from the Court's earlierunderstanding risks creating a form of reli-

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giously based conflict potentially harmful to the Nation'ssocial fabric. Because I believe the Establishment Clause waswritten in part to avoid this kind of conflict, and for reasons setforth by JUSTICE SOUTER and JUSTICE STEVENS, I respectfullydissent.