Division Over Diversion: Mitchell v. Helms, 530 U.s. 793 (2000)

• Publication year: 2021

80 Nebraska L. Rev. 354. Division over Diversion: Mitchell v. Helms, 530 U.S. 793 (2000)

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Note*

Division over Diversion: Mitchell v. Helms, 530 U.S. 793 (2000)

Joel Bacon

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 R

II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356 R

A. The History of Diversion and Divertibility in

Supreme Court Case Law . . . . . . . . . . . . . . . . . . . . . . . . . 356 R

1. The Early Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

2. The 1970s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 R

a. Diversion and Divertibility as Effect Prong

Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358 R

b. Divertibility as an Entanglement Prong

Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 R

3. The 1980s and 1990s: Support Wanes . . . . . . . . . . 361 R

4. Agostini v. Felton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 R

B. Mitchell v. Helms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 R

1. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 R

2. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . 366 R

3. The Plurality Opinion . . . . . . . . . . . . . . . . . . . . . . . . . 367 R

a. Scope of the Opinion and the Test To Be

Applied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 R

b. Government Indoctrination . . . . . . . . . . . . . . . . . 368 R

c. Definition of Recipients by Religion . . . . . . . . . 369 R

d. Divertibility (and other considerations) in

the Plurality Opinion . . . . . . . . . . . . . . . . . . . . . . 370 R

4. The Concurrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373 R

III. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 R

A. Analysis of Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376 R

B. Analysis of Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 R

IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384 R

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I. INTRODUCTION

The Supreme Court has repeatedly noted that application of the religion clauses of the First Amendment(fn1) is especially difficult in the area of government aid to religious schools.(fn2) In Mitchell v. Helms(fn3) the Court revisited the issue. The Court held that the state could lend educational and instructional materials to private sectarian schools and in the process overruled, in part, two of its earlier decisions,(fn4) Meek v. Pittenger(fn5) and Wolman v. Walter.(fn6)

While the Court was able to produce a judgment, it was unable to produce a majority opinion.(fn7) One of the key issues that produced dispute between the two groups of justices who voted to uphold the law was the role that the concepts of diversion and divertibility should play in Establishment Clause jurisprudence. Diversion occurs when government aid, secular on its face, is used for religious purposes.(fn8) Divertibility is the capability of aid, secular on its face, to be diverted to religious purposes.(fn9) Though many people assumed that both were important inquiries into the constitutionality of an aid program, a majorityof justices in Mitchell rejected divertibility and the plurality rejected diversion. This Note traces the development of the concepts of diversion and divertibility.(fn10) It then provides an overview of the pluralityand concurring opinions in Mitchell.(fn11) Finally, it analyzes the positions taken by the plurality and the concurrence in regards to diversion and divertibility to see how they comport with precedent and the principles underlying the Establishment Clause.(fn12)

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II. BACKGROUND

A. The History of Diversion and Divertibility in Supreme Court Case Law

Both diversion and divertibility are difficult concepts to track in the case law. They are seldom explicitly mentioned, so one searching for them must turn to implied references. Furthermore, when they do appear, either implicitly or explicitly, they are often wrapped up with other concepts that the Court has used to trace the vague contours of Establishment Clause jurisprudence. This section of this Note traces the history of diversion and divertibility, highlighting those cases that show support for the concepts and those that tend to undercut them.

1. The Early Cases

Though the Court's earliest cases dealing with aid to private sectarian schools do not mention diversion or divertibility explicitly, there is implied support for both concepts. The earliest support comes from outside of the Establishment Clause context. In Cochran v. Louisiana State Board of Education,(fn13) the Court addressed whether a program that purchased books and gave them to school children (including those that attended sectarian schools) amounted to a taking of private property for a private use in violation of the Fourteenth Amendment. (fn14) In rejecting the claim that the aid served no public purpose, the Court largely adopted the reasoning of the Louisiana Supreme Court, which had noted that "'[a]mong these books, naturally, none is to be expected, adapted to religious instruction.'"(fn15) Such language suggests that the program's validity, in part, rested upon the fact the aid was not used for religious purposes.

Everson v. Board of Education,(fn16) the first case applying the Establishment Clause to a state program providing aid to parochial schools, also offers implied support for diversion and divertibility. There the Court considered a program that provided reimbursement for bus fares to the parents of parochial school students. After invoking strong language suggesting a strict separation between church and state,(fn17) the Court held that the legislation was a general public wel-

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fare program and that to deny the parochial school students the bus transportation would be to deny them ordinary government services because of their religious orientation.(fn18) The Court referred to the aid as being "separate" and "indisputably marked off from the religious function [of the school]."(fn19) One could see this language as suggesting that only aid incapable of diversion to religious purposes was allowable.

Though it seems to mitigate against divertibility, the next major school aid case following Everson, Board of Education v. Allen,(fn20) clearly offers support for diversion. In Allen, the court laid down a test saying "that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."(fn21) The program at issue in Allen loaned secular textbooks without charge to privately and publicly educated students.(fn22) The Court reasoned that it was possible to keep the secular and the religious educational purposes of a private sectarian school separate and refused to accept the principle that "all teaching in a sectarian school is religious or that the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion."(fn23) The Court noted that nothing in the record suggested that the textbooks were used to teach religion, thus suggesting that had the claimants produced evidence to that effect, the constitutionality of the program would have been suspect.(fn24) Such reasoning implied that while the Court would consider whether actual diversion of materials to religious purposes had occurred, it would not invalidate a program based solely on the mere possibility of diversion.

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2. The 1970s

The 1970s marked a proliferation in the number of school-aid Establishment Clause cases and the cases from this decade offer the strongest support for the proposition that diversion and divertibility are important constitutional concepts. The paramount Establishment Clause case of the 1970s was Lemon v. Kurtzman,(fn25) in which the Court laid down the three-pronged test that has, in large part, framed Establishment Clauses jurisprudence ever since. Under the Lemon test, the law or provision in question must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive government entanglement with religion.(fn26) Within this three-pronged framework, diversion found a home as an effect prong concern. The Court spoke of and used divertibility as both an effect prong and as an entanglement prong concern.

a. Diversion and Divertibility as Effect Prong Concerns

Under the effect prong, diversion was always a concern for the Court in the 1970s. An establishment clause violation occurred whenever a school used funds from the government for religious purposes.(fn27) But waiting to see if diversion occurred was not always enough to ensure that no effect prong violation had occurred. Special problems arose when the aid's destination was a "pervasively sectarian school."(fn28) A pervasively sectarian school was one where "[t]he very purpose of [the] school [was] to provide an integrated secular and religious education"(fn29) and where "the teaching process [was], to a large extent, devoted to the inculcation of religious values and beliefs."(fn30) The Court's concern was that in such schools, aid would inevitably become intertwined with the school's religious mission.(fn31) When...