Mitchell v. Helms
Decided June 28, 2000; 530 US 793

Federal provision providing for equipment to public, private and parochial schools
under the Elementary and Secondary Education Act is constitutional.


A. Issues Discussed: Separation of church and state, establishment of religion

B. Legal Question Presented:

Does Chapter 2 of the Education Consolidation and Improvement Act of 1981, which provides federal funds to state and local education agencies to purchase and lend neutral, secular, and nonreligious materials and which allocates funds to public and private - secular and sectarian - schools on an equal per-student basis, violate the Establishment Clause of the First Amendment?


"Chapter 2 of the Education Consolidation and Improvement Act of 1981 channels federal funds via state educational agencies (SEA's) to local educational agencies (LEA's), which in turn lend educational materials and equipment, such as library and media materials and computer software and hardware, to public and private elementary and secondary schools to implement 'secular, neutral, and nonideological' programs. The enrollment of each participating school determines the amount of Chapter 2 aid that it receives.

In an average year, about 30% of Chapter 2 funds spent in Jefferson Parish, Louisiana, are allocated for private schools, most of which are Catholic or otherwise religiously affiliated. Respondents filed suit alleging, among other things, that Chapter 2, as applied in the parish, violated the First Amendment's Establishment Clause. Agreeing, the Chief Judge of the District Court held...that Chapter 2 had the primary effect of advancing religion because the materials and equipment loaned to the Catholic schools were direct aid and the schools were pervasively sectarian...

After the judge issued an order permanently excluding pervasively sectarian schools in the parish from receiving any Chapter 2 materials or equipment, he retired. Another judge then reversed that order, upholding Chapter 2 under, inter alia, Zobrest v. Catalina Foothills School Dist., in which a public school district was allowed to provide a sign-language interpreter to a deaf student at a Catholic high school as part of a federal program for the disabled. While respondents' appeal was pending, this Court decided Agostini v. Felton, approving a program under Title I of the Elementary and Secondary Education Act of 1965 that provided public employees to teach remedial classes at religious and other private schools.

Concluding that Agostini had neither directly overruled Meek and Wolman nor rejected their distinction between textbooks and other in-kind aid, the Fifth Circuit relied on those two cases to invalidate Chapter 2."

On certiorari, the US Supreme Court reversed the judgment of the United States Court of Appeals for the Fifth Circuit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Deputy Solicitor General Underwood argued the cause for respondents. With her on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Paul R. Q. Wolfson, Michael Jay Singer, and Howard S. Scher. Lee Boothby argued the cause for respondents. With him on the brief was Nicholas P. Miller.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Drew S. Days III, Anthony M. Radice, Lev L. Dassin, and Laura R. Taichman; for the Baptist Joint Committee on Public Affairs by Melissa Rogers and J. Brent Walker; for the Interfaith Religious Liberty Foundation et al. by Derek Davis and Alan J. Reinach; for the National Committee for Public Education and Religious Liberty et al. by Marshall Beil and Philip Goldstein; for the National Education Association by Robert H. Chanin, Jeremiah A. Collins, and Michael D. Simpson; for the National Jewish Commission on Law and Public Affairs by Dennis Rapps, David Zwiebel, Nathan Diament, and Nathan Lewin; and for the National School Boards Association et al. by Julie Underwood, Jay Worona, and Pilar Sokol.

Michael W. McConnell argued the cause for petitioners. With him on the briefs were Patricia A. Dean, Andrew T. Karron, John C. Massaro, and Steffen N. Johnson.

Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, Robert C. Maier, Assistant Solicitor, and by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Don Stenberg of Nebraska, John J. Farmer, Jr., of New Jersey, Charles M. Condon of South Carolina, and Mark L. Earley of Virginia; for the City of New York et al. by Michael D. Hess, Leonard J. Koerner, and Edward F. X. Hart; for the American Center for Law and Justice by Jay Alan Sekulow, John P. Tuskey, Walter W. Weber, Colby M. May, and Vincent P. McCarthy; for the Arizona Council for Academic Private Education et al. by Edward McGlynn Gaffney, Jr., and David J. Hessler; for the AVI CHAI Foundation by Nathan Lewin, Julia E. Guttman, and Jody Manier Kris; for the Becket Fund for Religious Liberty by Kevin J. Hasson and Eric W. Treene; for the Catholic League for Religious and Civil Rights by Robert P. George; for the Knights of Columbus by Kevin T. Baine and Emmet T. Flood; for the United States Catholic Conference by Mark E. Chopko, John A. Liekweg, and Jeffrey Hunter Moon; and for the Washington Legal Foundation by Daniel J. Popeo and R. Shawn Gunnarson.


The Supreme Court held that:

"...[T]here is no basis for concluding that Jefferson Parish's Chapter 2 program has the effect of advancing religion. First, Chapter 2 does not define its recipients by reference to religion, since aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. There is no improper incentive because, under the statute, aid is allocated based on school enrollment. Second, Chapter 2 does not result in governmental indoctrination of religion. It determines eligibility for aid neutrally, making a broad array of schools eligible without regard to their religious affiliations or lack thereof...the Chapter 2 aid provided to religious schools does not have an impermissible content. The statute explicitly requires that such aid be 'secular, neutral, and nonideological,' and the record indicates that the Louisiana SEA and the Jefferson Parish LEA have faithfully enforced this requirement insofar as relevant to this case."

The United States Supreme Court reversed the United States Court of Appeals for the Fifth Circuit judgment.

Justice Vote: 3 Pro vs. 6 Con
  • Souter, D. Pro (Wrote dissenting opinion)
  • Stevens, J. Pro (Joined dissenting opinion)
  • Ginsburg, R. Pro (Joined dissenting opinion)
  • Thomas, C. Con (Wrote majority opinion)
  • O'Connor, S. Con (Wrote concurring opinion)
  • Breyer, S. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged affirmance of the judgment of the United States Court of Appeals for the Fifth Circuit; the Supreme Court reversed in a 3-6 vote, giving the ACLU an apparent loss.