In Mitchell v. Helms, 530 U.S. 793 (2000), the Supreme Court rejected a longstanding establishment clause challenge to public funding of instructional resources for religious schools.

Officials in Jefferson Parish, Louisiana, had used grant monies from Chapter 2 of the Education Consolidation and Improvement Act (EICA) of 1981 to purchase computer technology and other educational materials for public and private schools in the area. After Mary Helms and other local citizens filed a constitutional challenge to these grants, a federal district court judge invalidated the Chapter 2 funding as applied in Jefferson Parish, reasoning that it had the primary effect of advancing religion. After that judge retired, a new judge reevaluated the case and reversed the original ruling. The Fifth Circuit Court of Appeals then overruled the second judge, and the case made its way to the Supreme Court.

The vote on the merits was 6-3, but no single argument commanded a Court majority, dampening the hopes of many legal observers that Mitchell would clarify the Court’s establishment clause jurisprudence. Justice Clarence Thomas issued the plurality opinion for four justices, arguing that the general availability of the Chapter 2 funds rendered the allocation of monies wholly neutral and secular in purpose, and therefore no reasonable observer would believe that government had sponsored religious indoctrination in private school. Thomas relied heavily on Agostini v. Felton (1997) in deciding the case, but in a concurring opinion the author of the majority opinion in Agostini, Justice Sandra Day O’Connor, joined Justice Stephen G. Breyer to insist that neutrality in determining who gets aid is not sufficient to prevent constitutional challenge.

According to O’Connor, the “primary effect” of allocating Chapter 2 funds may be government sponsorship of religious indoctrination apart from whether those funds were allocated in a secular or neutral manner. Still, O’Connor and Breyer saw no state-sponsored religious indoctrination in this case. The three dissenters, led by Justice David H. Souter, argued that the possibility of diverting Chapter 2 resources to religious purposes is sufficient to reject the funding arrangement.

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