Wolman v. Walter

Mr. Justice Powell,

concurring in part, concurring in the judgment in part, and dissenting in part.

Our decisions in this troubling area draw lines that often must seem arbitrary. No doubt we could achieve greater analytical tidiness if we were to accept the broadest implications of the observation in Meek v. Pittenger, 421 U. S. 349, 366 (1975), that “[substantial aid to the educational function of [sectarian] schools . . . necessarily results in aid to the sectarian enterprise as a whole.” If we took that course, it would become impossible to sustain state aid of any kind— even if the aid is wholly secular in character and is supplied to the pupils rather than the institutions. Meek itself would have to be overruled, along with Board of Education v. Allen, 392 U. S. 236 (1968), and even perhaps Everson v. Board of Education, 330 U. S. 1 (1947). The persistent desire of a number of States to find proper means of helping sectarian education to survive would be doomed. This Court has not yet thought that such a harsh result is required by the Establishment Clause. Certainly few would consider it in the public interest. Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover,' a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them.

*263It is important to keep these issues in perspective. At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. See Walz v. Tax Comm’n, 397 U. S. 664, 668 (1970). The risk of significant religious or denominational control over our democratic processes — or even of deep political division along religious lines — is remote, and when viewed against the positive contributions of sectarian schools, any such risk seems entirely tolerable in light of the continuing oversight of this Court. Our decisions have sought to establish principles that preserve the cherished safeguard of the Establishment Clause without resort to blind absolutism. If this endeavor means a loss of some analytical tidiness, then that too is entirely tolerable. Most of the Court’s decision today follows in this tradition, and I join Parts I through VI of the opinion.

With respect to Part VII, I concur only in the judgment. I am not persuaded, nor did Meek hold, that all loans of secular instructional material and equipment “inescapably [have] the primary effect of providing a direct and substantial advancement of the sectarian enterprise.” Ante, at 250. If that were the case, then Meek surely would have overruled Allen. Instead the Court reaffirmed Allen, thereby necessarily holding that at least some such loans of materials helpful in the educational process are permissible — so long as the aid is incapable of diversion to religious uses, cf. Committee for Public Education v. Nyquist, 413 U. S. 756 (1973), and so long as the materials are lent to the individual students or their parents and not to the sectarian institutions. Here the statute is expressly limited to materials incapable of diversion. Therefore the relevant question is whether the materials are such that they are “furnished for the use of individual students and at their request.” Allen, supra, at 244 n. 6 (emphasis added).

The Ohio statute includes some materials such as wall maps, *264charts, and other classroom paraphernalia for which the concept of a loan to individuals is a transparent fiction. A loan of these items is indistinguishable from forbidden “direct aid” to the sectarian institution itself, whoever the technical bailee. See Meek, supra, at 362-366. Since the provision makes no attempt to separate these instructional materials from others meaningfully lent to individuals, I agree with the Court that it cannot be sustained under our precedents. But I would find no constitutional defect in a properly limited provision lending to the individuals themselves only appropriate instructional materials and equipment similar to that customarily used in public schools.

I dissent as to Part VIII, concerning field trip transportation. The Court writes as though the statute funded the salary of the teacher who takes the students on the outing. In fact only the bus and driver are provided for the limited purpose of physical movement between the school and the secular destination of the field trip. As I find this aid indistinguishable in principle from that upheld in Everson, supra, I would sustain the District Court's judgment approving this part of the Ohio statute.