Mitchell v. Helms, 463 U.S. 793 (2000)

Mitchell v. Helms concerned an as-applied challenge to a federal assistance program that provided educational materials and equipment, such as library media materials and computer software and hardware, to public and private schools, including religious schools. The plaintiffs alleged that the loan of the equipment and materials violated the First Amendment prohibition against religious establishments by subsidizing the education of religious and parochial schools. Mitchell is significant because the Supreme Court, in upholding the constitutionality of the funding program, significantly loosened the earlier prohibitions on public funding of religious elementary and secondary schools.

During the 1970s, the Supreme Court had adopted a firm ‘‘separationist’’ position on the issue of public funding of religious and parochial schools, striking most programs while allowing only the most incidental forms of assistance. Generally, the Court prohibited direct financial support for even arguably secular programs in religious schools on the ground that most schools were ‘‘pervasively sectarian,’’ in that they integrated religious doctrine and values throughout the curriculum and had a primary purpose of religious indoctrination. Although the Court permitted some forms of assistance, the aid had to be discrete and supplemental to the schools’ educational programs and the public monies had to contain safeguards to ensure that public funds did not pay for religious activity. Thus, while the Court had upheld the loan of secular textbooks to and the provision of health and diagnostic services in parochial schools, it had prohibited tuition subsidies, building construction and maintenance grants, and the loan of educational materials and equipment that could be diverted to religious uses (see Meek v. Pittenger, 421 U.S. 349, 1975).

Starting in the mid-1980s, an increasingly conservative Supreme Court began to adopt a more ‘‘accommodating’’ position toward funding programs that benefited religious schools. In 1983 and 1986, the Court signaled that forms of indirect financial assistance provided through the ‘‘private choices’’ of beneficiaries satisfied many Establishment Clause concerns (Mueller v. Allen, 463 U.S. 388, 1983; Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 1986). In 1993, the Court allowed a statepaid sign-language interpreter to provide services in a parochial school.

The most significant deviation from earlier case law occurred with the 1997 case of Agostini v. Felton (521 U.S. 203). In that case, the Court took the extraordinary step of reversing earlier holdings prohibiting state-paid employees from entering parochial schools to provide supplemental remedial and enrichment services. The Agostini majority held that the criteria for determining whether a funding program violated the Establishment Clause had ‘‘significantly changed’’ over the years. Rather than assuming that all direct state aid would advance religion or result in excessive entanglement between church and state, the Court would now look to see whether the aid program resulted in ‘‘government-sponsored indoctrination.’’

The services provided in Agostini had been under the control of state-paid employees, thus providing assurance that public monies would not be spent on religious activities. The issue in Mitchell was whether the new principles announced in Agostini extended to assistance that remained under the control of religious school officials, particularly since some of the materials being provided (for example, computers) could easily be diverted for religious uses. By a six-to-three margin, the Court held that those principles did apply and upheld the aid. The vote belied the deep division on the Court, however. A four-justice plurality, written by Justice Clarence Thomas, urged an even more accommodating rule that assistance to religious schools was permissible, provided it was administered under a program that was neutral toward religion and available to public and private institutions alike. ‘‘If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government,’’ Thomas wrote. The plurality also urged the rejection of the pervasively sectarian principle, calling it a doctrine ‘‘born of bigotry’’ due to its anti-Catholic antecedents in the nineteenth century.

Writing in concurrence for herself and Justice Stephen Breyer, Justice Sandra Day O’Connor characterized the plurality’s opinion as being of ‘‘unprecedented breadth.’’ ‘‘Reduced to its essentials, the plurality’s rule states that government aid to religious schools does not have the effect of advancing religion so long as the aid is offered on a neutral basis and the aid is secular in content . . . . [T]he plurality’s approval of actual diversion of government aid to religious indoctrination is in tension with our precedents.’’ For Justices O’Connor and Breyer, the actual diversion of public funds for religious activities was still prohibited under the Establishment Clause.

Finally, writing in dissent, Justice David Souter agreed with much of the sentiment in Justice O’Connor’s concurrence, but argued that the risk of diversion for religious purposes was too great, and the amount of assistance crossed the line from supplementing to supplanting the educational functions of the parochial schools. Mitchell revealed that four justices were prepared to dispense with most prohibitions on public funding of religious schools; however, a majority of the justices insisted that the Establishment Clause still prohibited governmentfunded religious activity, even under an otherwise neutral funding program.

STEVEN K. GREEN

References and Further Reading

• Gedicks, Frederick Mark, A Two-Track Theory of the Establishment Clause, Boston College Law Review 43 (2002): 1071–1109.
• Green, Steven K., The Constitutionality of Vouchers After Mitchell v. Helms, New York University Annual Survey of American Law 57 (2000): 57–73.
• Jeffries, John C., and James E. Ryan, A Political History of the Establishment Clause, Michigan Law Review 100 (2001): 279–370.
• Lupu, Ira C., The Lingering Death of Separationism, The George Washington Law Review 62 (1994): 230–279.
• McConnell, Michael W., Religious Freedom at the Crossroads, University of Chicago Law Review 59 (1992): 115.
• Monsma, Stephen V., ed. Church–State Relations in Crisis: Debating Neutrality. New York: Rowman & Littlefield Pub., 2002.
• Ravitch, Frank S., A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause, Georgia Law Review 38 (2004): 489.

Cases and Statutes Cited

• Agostini v. Felton, 521 U.S. 203 (1997)
• Meek v. Pittenger, 421 U.S. 349 (1975)
• Mueller v. Allen, 463 U.S. 388 (1983)
• Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)
• Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993)

See also State Aid to Religious Schools; Zelman v. Simmons–Harris, 536 U.S. 639 (2002)