concurring in the denial of rehearing en banc:
A majority of the active judges of our court declined to vote for rehearing of this case en banc. We concur in the court’s decision not to go en banc.
The State of Arizona finances private “school tuition organizations” (STOs) by giving dollar-for-dollar tax credits to individuals who contribute to them. On its face, the statute creating this subsidy requires STOs to provide scholarships for students “to attend any qualified school of their parents’ choice.” Ariz.Rev.Stat. Ann. § 43-1089(G)(3) (2005) (emphasis added).1 As the Arizona Department of Revenue applies the statute, however, the state reimburses contributions to STOs that restrict their scholarships to use at religious schools. Consequently, 85 percent or more of the state-financed scholarship money is available only to students whose parents are willing to send them to sectarian institutions.2
If these facts are proved true, the Arizona Department of Revenue’s execution of the scholarship program (Section 1089) violates the Establishment Clause. In Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), the Court upheld a school voucher program that “provide[d] assistance directly” to parents without regard for religion, and public funds reached religious institutions only as the result of parents’ choices about their children’s education. Id. at 652, 122 S.Ct. 2460. Parents received aid whether or not they were willing to enroll their children in sectarian schools, so the program did not exert pressure on parents to choose religious schools. Under the Arizona program, by contrast, taxpayers, rather than parents, direct funds to religious organizations. Access to assistance is restricted on the basis of religion, creating financial incentives that may skew parents’ choices toward religious schools. See id. at 650, 122 S.Ct. 2460. The differences between the Ohio and Arizona programs are constitutionally meaningful.
The dissent from rehearing en banc demonstrates that others may prefer a more expansive reading of Zelman. Careful review of the two cases, however, shows why the dissent’s argument that “Winn cannot be squared with the Supreme Court’s mandate in Zelman ” is not persuasive. Dissent 14719-20.
I. Background
On its face, Section 1089 appears to provide for parental choice. The statute says that for an organization to qualify as *651an STO eligible to receive state-reimbursed contributions the organization must provide scholarships “to children to allow them to attend any qualified school of their parents’ choice.” Ariz.Rev.Stat. Ann § 43-1089(G)(3) (emphasis added).3 If this were how Arizona applied the statute, the Arizona program would be similar to the majority of the tax credit programs currently in operation. Like Section 1089, four of these programs contain provisions directing scholarship organizations to provide scholarships for students to attend any qualified school of their parents’ choice.4 These “parental choice” clauses may explain the apparent absence of any Establishment Clause challenges to those programs.
This is not, however, how the Arizona Department of Revenue applies the statute. According to plaintiffs’ complaint, Arizona gives tax credits reimbursing individuals who contribute to STOs that expressly restrict their scholarships to use at religious schools. The largest STO, the Catholic Tuition Organization of the Diocese of Phoenix, restricts its scholarships to use at Catholic schools in the Phoenix Diocese; the second largest, the Arizona Christian School Tuition Organization provides scholarships only to students attending evangelical Christian schools; and the third largest, Brophy Community Foundation, restricts its scholarships to use at two specific Catholic schools. See Winn, 562 F.3d at 1006. As a result of how the Arizona Department of Revenue applies Section 1089, plaintiffs allege, these three religious STOs controlled 85 percent of the total STO donations in 1998, the year before the complaint was filed. See id. at 1006. Plaintiffs argue that it is this application of Section 1089 that violates the Establishment Clause.
II. Effect
We turn first to the issue of “whether Section 1089 ‘has the forbidden “effect” of advancing or inhibiting religion.’ ” Winn, 562 F.3d at 1012 (quoting Zelman, 536 U.S. at 649, 122 S.Ct. 2460).
A. Parental Choice
The Winn panel held that the Arizona Department of Revenue’s application of Section 1089 may not provide parents with “true private choice” within the meaning of Zelman. See id. at 1015-18. With respect to this conclusion, the dissent accuses the panel of rejecting the majority’s holding in Zelman in favor of Judge Souter’s dissent. Not so.
1.
The dissent fails to address the crucial difference between the Ohio voucher program upheld in Zelman and the Arizona Department of Revenue’s application of Section 1089: with respect to religion, the Ohio program gave parents equal access to tuition benefits. See Zelman, 536 U.S. at 645, 122 S.Ct. 2460. Under the Ohio program, the state provided tuition aid on the basis of financial need, without regard to religion, and eligible parents were free to apply the aid toward any private school, *652religious or secular, or toward a public school outside the district willing to participate in the program (though none was). If a parent decided to send her child to a private school, the state wrote a check made payable to the parent, which the parent could then endorse over to her chosen school. See id. at 646., 122 S.Ct. 2460 Crucially, a parent’s choice to send her child to a religious school would neither help nor harm her chance of receiving tuition aid.
Whether such a program violates the Establishment Clause, the Court held, does not depend on whether the parent receiving tuition aid has a broader array of religious than secular schools to choose from. This is because “[t]he constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school.” Id. at 658, 122 S.Ct. 2460 (emphasis added). The majority in Zelman made clear, however, that a “neutral educational aid program”— or, as the Court also put it, a “program of true private choice” — is one that grants access to benefits without regard to religion. Id. at 658, 662, 122 S.Ct. 2460.
The importance of providing equal access to benefits is emphasized throughout Zelman. A common thread running through indirect aid programs the Supreme Court has upheld against Establishment Clause challenges, the Zelman Court observed, is that they have been “neutral with respect to religion[] and provide[d] assistance directly to a broad class of citizens.” Id. at 652, 122 S.Ct. 2460 (emphases added); see also Mueller, 463 U.S. at 397, 103 S.Ct. 3062; Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 487, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993).5 Likewise, under the Ohio voucher program, the Court stressed, “[pjrogram benefits are available to participating families on neutral terms, with no reference to religion.” Zelman, 536 U.S. at 653, 122 S.Ct. 2460 (emphases added).
By contrast, as plaintiffs allege the Arizona Department of Revenue applies the statute, access to Section 1089-funded scholarships is not “available ... on neutral terms, with no reference to religion.” Parents who are unwilling to send their child to a religious school may be denied access to program benefits because, as plaintiffs allege, there are not a sufficient number of scholarships available for use at secular schools. Accordingly, these parents are shut out of the program altogether, and at the very least them chances of receiving benefits are harmed by their choice to send their child to a secular school.
This lack of access on a religiously neutral basis explains why Section 1089 as operated by the Arizona Department of Revenue would violate the Establishment Clause. This conclusion is entirely consistent with — and required by — the Court’s analysis in Zelman. It is true that the majority in Zelman rejected Justice Souter’s view that the number of religious and *653secular schools participating in the Ohio voucher program was relevant to its constitutionality. But before the Court addressed Justice Souter’s concerns, it first identified several features of the Ohio program that made it one of “true private choice ..., and thus constitutional.” Id. Among these features, the tuition aid distributed under the Ohio program created “no ‘financial incentives’ that ‘skew[ed]’ the program toward religious schools.” Id. (alteration omitted) (quoting Witters, 474 U.S. at 487-88, 106 S.Ct. 748). The Court recognized that “[s]uch incentives ‘are not present where the 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.’” Id. at 653-54, 122 S.Ct. 2460 (emphasis added, alteration and ellipses omitted) (quoting Agostini v. Felton, 521 U.S. 203, 231, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)).
The Arizona Department of Revenue permits scholarships funded under Section 1089 not to be “made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Therefore, Zelman requires a closer look at whether the program, as applied, creates “financial incentives that skew the program toward religious schools.” Id. at 653, 122 S.Ct. 2460 (alterations and internal quotation marks omitted). This is why it is relevant that, by allowing tax credits for contributions to discriminatory STOs, the Arizona Department of Revenue has created an overwhelming disparity in the number of scholarships exclusively available for use at religious schools compared to the number available for use at secular schools. See Winn, 562 F.3d at 1016-18.
Consistent with Section 1089’s parental choice provision, see Ariz.Rev.Stat. Ann. § 43-1089 (2005), the Arizona Department of Revenue could apply the program to require that STOs make state-funded scholarships “available to both religious and secular beneficiaries on a nondiscriminatory basis.” Zelman, 536 U.S. at 653-54, 122 S.Ct. 2460 (internal quotation marks omitted). If Section 1089 were applied in this neutral manner, data concerning the number of scholarships applied toward religious schools versus secular schools would indeed be irrelevant to the Establishment Clause inquiry as long as the State of Arizona otherwise provided students “a range of [secular] educational choices.” Id. at 655, 122 S.Ct. 2460.
As Section 1089 is currently applied, however, the program allows state-funded scholarships to be restricted to use at religious schools. It is therefore necessary to consider whether, in reality, the program creates incentives for parents to send their children to religious schools in order to gain access to benefits. This conclusion is required by — and, at the very least, consistent with — Zelman.6
2.
The dissent contends that the Arizona program is valid because the State of Arizona has other programs in place that pro*654vide secular educational options for those unable to obtain a program scholarship. See Zelman, 586 U.S. at 655-56, 122 S.Ct. 2460 (“The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by-evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.” (emphases added)). The dissent fails to recognize Zelman’s holding that a program of “true private choice” is one in which “[p]rogram benefits are available to participating families on neutral terms, with no reference to religion.” Id. at 653, 122 S.Ct. 2460. A short hypothetical will show why the dissent’s reading of Zelman is untenable. Consider a program, instituted by a state that provides an array of secular educational options, that offers tax deductions exclusively to parents sending their children to private schools. Each eligible parent receives a tax deduction unrelated to the amount spent on tuition, thus ensuring a windfall to parents who send their children to religious schools, which typically charge lower rates than secular private schools. Assume this hypothetical program has a valid secular purpose. For most potential recipients, however, benefits under the program are, as a practical matter, available only if the recipient chooses to send her child to a relatively low-cost religious school. Thus, the unmistakable effect of the program is to create special incentives to send one’s child to a sectarian school.
Under the dissent’s reading of Zelman, this hypothetical program would easily withstand an Establishment Clause challenge. Anyone can participate in the program. Anyone who participates receives identical tax benefits. Anyone can apply the tax benefits toward a private school of his or her choice. See Dissent 660. Moreover, for those who choose not to participate in the program, the state provides an array of public schooling options. See id. at 666-67.
This program is not a hypothetical; it is the New York tax deduction scheme invalidated in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2993, 37 L.Ed.2d 948 (1973)— a case that Zelman distinguished but declined to overturn.7 See Nyquist, 413 U.S. at 788, 93 S.Ct. 2955 (“In its attempt to enhance the opportunities of the poor to choose between public and nonpublic education, the State has taken a step which can only be regarded as one ‘advancing’ religion.”); Zelman, 536 U.S. at 661, 122 S.Ct. 2460 (observing that the “ ‘function’ ” of the New York program “was ‘unmistakably to provide desired financial support for nonpublic, sectarian institutions’ ” (quoting Nyquist, 413 U.S. at 783, 93 S.Ct. 2955 (emphasis added))). Zelman explained that Nyquist had “expressly reserved judgment with respect to ‘a case *655involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited.’ ” Id. (quoting Nyquist, 413 U.S. at 782-83, 93 S.Ct. 2955). The Ohio voucher program fit this description. The Arizona Department of Revenue’s application of Section 1089 does not.
In Zelman, the Court clarified that “Nyquist does not govern neutral educational assistance programs that ... offer aid directly to a broad class of individual recipients defined without regard to religion.” Id. at 662, 122 S.Ct. 2460. According to the dissent, Section 1089 is such a “neutral educational assistance program.” By the dissent’s logic, however, the New York program invalidated in Nyquist would also be such a program. Even more troublesome, a program that provided tax deductions exclusively to parents sending their children to religious schools would also constitute a “neutral educational assistance program” as long as the state had other programs in place that provided secular educational options. It is this result, not the outcome in Winn, “that simply cannot be reconciled with Zelman.” Dissent 661. The Supreme Court elected not to overturn Nyquist, and we may not do so on its behalf.
B. Taxpayer Choice
Next, the dissent challenges the panel’s conclusion that the choices provided to taxpayers under Section 1089 — choices that, plaintiffs allege, restrict parents’ access to secular educational scholarships — fail to render the program constitutional. See Winn, 562 F.3d at 1018-23. Specifically, the dissent contends the panel misapplied Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). A careful reading of Winn shows that the dissent exaggerates the panel’s reliance on Larkin.
Larkin does not control this case. See Winn, 562 F.3d at 1020 (emphasizing that “the delegation of scholarship funding to individual taxpayers, such as in Section 1089, does less to promote religion than the delegation of zoning authority to churches,” such as provided under the statute at issue in Larkin). Rather, the panel observed that Larkin’s holding
illustrates that when a statute delegates “a power ordinarily vested in agencies of government” to a private party, see [Larkin, 459 U.S.] at 122, 103 S.Ct. 505, without reasonable assurance that the party’s choices will advance the secular purposes of the statute, any ensuing “perceived endorsement of a religious message” may be “reasonably attribut[ed]” to the government.
Winn, 562 F.3d at 1020-21 (second quotation from Zelman, 536 U.S. at 652, 122 S.Ct. 2460).
Contrary to the dissent’s suggestion, Larkin’s holding is not limited to cases where the state vests governmental powers in a “pervasively sectarian organization.” Dissent 668. In Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994), for example, the Court applied Larkin when considering an Establishment Clause challenge to a statute creating a school district coextensive with a religious community. This statute vested power in individual taxpayers, not in a religious organization, but the Court nonetheless invalidated it. See id. at 698, 114 S.Ct. 2481 (“The Establishment Clause problem [at issue] is more subtle [than that in Larkin ], but it resembles the issue raised in Larkin to the extent that the earlier case teaches that a State may not delegate its civic authority to a *656group chosen according to a religious criterion.”). Again, Winn does not suggest that the choices delegated to taxpayers under the Arizona Department of Revenue’s construction of Section 1089 are the constitutional equivalent of the legislative action at issue in Kiryas Joel. That case makes clear, however, that the delegation concerns identified in Larkin are relevant to whether a reasonable, informed observer would conclude that the choices delegated under Section 1089 have the effect of promoting, or hindering, the program’s secular purpose.8
The dissent further argues that in terms of constraining parents’ access to secular educational options, taxpayers’ choices under Section 1089 are no more constitutionally problematic than the choice of public schools not to participate in the Ohio voucher program in Zelman. Dissent 668. This misses the point. Under the Ohio program, it was not the public schools’ choices that ensured “the Establishment Clause was not implicated” — it was the parents’ choices. Zelman, 536 U.S. at 652, 122 S.Ct. 2460. Each parent had an equal choice under the Ohio program as to whether to apply a tuition voucher toward a private school, and the choice of one parent did not directly alter the array of options available to another parent. Accordingly, under the Ohio program, a parent’s choice as to how best to educate her child had no coercive effect on another parent’s choice whether to send her child to a secular or religious school. The Ohio program thus provided each eligible parent with a “genuine and independent private choice” whether to direct assistance to a religious school. Id. (emphasis added). The choices given to parents under the program therefore ensured “the circuit between government and religion was broken.” Id. Although a public school’s decision not to accept a voucher could indeed frustrate the secular purpose of the Ohio program, the Supreme Court did not rely on those choices to conclude the program was constitutional.
By contrast, the appellees in Winn rely on taxpayers’ choices in arguing that the current construction of Section 1089 is valid under the Establishment Clause. The effect of these taxpayer choices, however, may be to ham the ability of aspiring scholarship recipients to obtain a scholarship available for use at a secular school. Accordingly, Section 1089 “delegat[es] to taxpayers a choice that, from the perspective of the program’s aid recipients, ‘deliberately skew[s] incentives toward religious schools.’ ” Winn, 562 F.3d at 1013 (quoting Zelman, 536 U.S. at 650, 122 S.Ct. 2460). Such choices are not, in themselves, sufficient to render an educational aid program valid under the Establishment Clause.
In summary, it was crucial to Zelman’s holding that the Ohio program afforded aid recipients a “genuine and independent private choice” whether to direct the assistance they received toward a religious school. Zelman, 536 U.S. at 652, 122 S.Ct. 2460. Although the Arizona Department of Revenue’s application of Section 1089 does not afford such choice, Winn carefully determined that the choice provided to taxpayers is insufficient to ensure “the circuit between government and religion was broken.” Id. For reasons carefully *657laid out in the decision, our court was correct to decline en banc review.
III. Secular Purpose
The dissent also faults Winn for concluding that Section 1089 may lack a valid secular purpose. See 562 F.3d at 1011-12. This criticism is premature. The question before the panel was “not whether Section 1089 in fact has a genuine, secular purpose, but whether plaintiffs could prove, on the facts alleged in the complaint, that it does not.” Id. at 1012.
As the dissent states, a “legislature’s stated reasons” for enacting a statute “will generally get deference,” and must be accepted as true except in “unusual cases where the claim was an apparent sham, or the secular purpose secondary.” McCreary County v. ACLU of Ky., 545 U.S. 844, 865, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). The inquiry into whether a statute’s ostensible purpose is a sham or secondary to a religious objective, however, must be “undertaken from the perspective of ‘an objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.’ ” Winn, 562 F.3d at 1012 (quoting McCreary, 545 U.S. at 862, 125 S.Ct. 2722). The dissent’s position would foreclose such an inquiry.
The dissent surmises that in enacting Section 1089,“[t]he legislature could hardly have had the ‘purpose’ of endorsing religion when it set up a plan that, for all it knew, could have resulted in absolutely no funding for religious entities.” Dissent 670 (emphasis added). The dissent makes this claim without citing any evidence concerning what the legislature actually knew about how Section 1089 would likely operate. This is just as well, because no such evidence yet appears in the record. But the dissent suggests it should not matter to us whether the legislature knew that Section 1089 would result in disproportionate funding being made available only for use at religious institutions. The Supreme Court has cautioned us, however, against evaluating a program’s purpose from the perspective of an “absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.” McCreary, 545 U.S. at 866, 125 S.Ct. 2722. In short, the dissent appears to call for either a heightened pleading standard for Establishment Clause claims — under which the plaintiff must allege specific facts establishing that the legislature acted for an invalid purpose — or an approach to evaluating a program’s purpose that “would cut context out of the enquiry, to the point of ignoring history.” Id. at 864, 125 S.Ct. 2722.
Regarding evidence of Section 1089’s implementation, the dissent contends that because taxpayer contributions to STOs are private conduct, they are irrelevant to whether Section 1089 has a valid secular purpose. Notably, in an as-applied context, at least two circuits have considered private conduct under a government program to be probative of the program’s purpose,9 and Winn does not foreclose the *658possibility that plaintiffs can point to private conduct probative of whether Section 1089 has a secular purpose. More probative, however, is the government conduct on the part of the State of Arizona in implementing Section 1089.
The Arizona Department of Revenue implements Section 1089 by allowing individuals to claim tax credits for contributions to private STOs. See Winn, 562 F.3d at 1009 (“The Supreme Court has recognized ... that state tax policies such as tax deductions, tax exemptions and tax credits are means of‘channeling ... [state] assistance’ to private organizations....” (emphasis added, ellipses in original) (quoting Mueller, 463 U.S. at 399, 103 S.Ct. 3062)). According to plaintiffs’ complaint, the Arizona Department of Revenue allows tax credits for contributions to STOs that provide scholarships only to religious schools. Individuals’ contributions to STOs that discriminate on the basis of religion are not, of themselves, probative of Section 1089’s purpose. The fact that the Arizona Department of Revenue gives tax credits for these contributions, however, could be probative of legislative expectations as to how state assistance under Section 1089 would be directed in practice.
Accordingly, by declining to rehear this case en banc, we appropriately rejected the suggestion that we should turn a blind eye to the history and implementation of Section 1089 simply because the statute is facially neutral.
IV. Conclusion
This case required the panel to apply Zelman to an educational aid program that, according to the allegations of plaintiffs’ complaint, lets taxpayers choose to make state-reimbursed contributions to private scholarship organizations, but allows the organizations to restrict access to state-funded scholarships on the basis of religion. Winn correctly held that such a program would not, under Zelman, provide parents with “genuine and independent private choice,” and that the choice given to taxpayers under such a program could not be treated as the constitutional equivalent of the choice given to parents under the Ohio voucher program. Unlike the program in Zelman, the program alleged here neither makes scholarships available to parents on a religiously neutral basis nor gives them a true private choice as to where to utilize the scholarships. The panel correctly held that these allegations, if proven true, could establish an Establishment Clause violation. We therefore concur in the denial of rehearing en banc.
. All references to “Section 1089” refer to the program as set forth in Arizona Revised Statutes Annotated § 43-1089 (2005), the version of the statute in place when plaintiffs' complaint was filed. Any differences between this and the current version of Section 1089 are not significant for purposes of the analysis.
. The dissent sees no constitutional distinction between a tax deduction and a tax credit. See Dissent 659 n.3. We disagree. A tax-credit eligible contribution to an STO costs the taxpayer nothing. See Winn v. Killian, 307 F.3d 1011, 1015 n. 5 (9th Cir.2002), aff'd sub. nom Hibbs v. Winn, 542 U.S. 88, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) ("From a purely financial perspective, ... a taxpayer is unaffected by his decision as to whether or not to make an STO contribution. The funds that he may contribute will be unavailable to him in any event: they will be used either to make the contribution or to pay the taxes he owes.”). Tax deductible contributions, by contrast, impose a cost on the taxpayer. See id. ("[W]hen a taxpayer is entitled to a tax deduction, the taxpayer must in most if not all instances still pay a majority of the tax involved[.]”). Whereas a tax deduction would lower the cost of contributions to STOs, a dollar-for-dollar tax credit reduces that cost to zero, in effect allowing individual taxpayers to directly allocate public funds.
. A "qualified school” is defined by statute as "a nongovernmental primary school or secondary school or a preschool for handicapped students that is located in this state, that does not discriminate on the basis of race, color, handicap, familial status or national origin and that satisfies the requirements prescribed by law for private schools in this state.” Id. § 43-1089(G)(2).
. See Fla. Stat. § 220.187(6)(h); Ga.Code Ann. § 20-2A-l(3)(A); Ind.Code § 20-51-3-1(b); Iowa Code § 422.1 lS(5)(c)(l); R.I. Gen. Laws § 44-62-2(a). One of the currently operating programs contains no such parental choice provision. See 24 Pa. Stat. Ann. § 20-2005-B.
. The program upheld in Mueller, Zelman explained, provided aid to " 'all parents’ ” to pay for certain educational expenses at secular or religious schools. Zelman, 536 U.S. at 650, 122 S.Ct. 2460 (quoting Mueller, 463 U.S. at 397, 103 S.Ct. 3062). Under the program in Witters, Zelman continued, "recipients generally were empowered to direct the aid to schools or institutions of their own choosing.” Id. at 651, 122 S.Ct. 2460 (emphases added). Likewise, the program upheld in Zobrest " ' distributed] benefits neutrally to any child qualifying as disabled,’ ” without regard to religion. Id. (emphasis added) (quoting Zobrest, 509 U.S. at 10, 113 S.Ct. 2462).
. The dissent's hypothetical, about a world in which Section 1089 operates to restrict scholarships to use at secular schools, is premised on the misunderstanding that, under the Free Exercise Clause, governments have an affirmative obligation to fund religious educational options if they decide to make secular options available. See Dissent 661-62. But see Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (rejecting Free Exercise challenge to statute providing postsecondary education scholarships but prohibiting use of the scholarships for a degree in devotional theology from a religious institution). Constitutional limitations on support for religion do not precisely mirror limitations on failures to support religion.
. The New York program also had provisions offering private school tuition reimbursements, paid directly to the school, for parents who fell below a certain income level and grants to private schools for the.maintenance and repair of their facilities. The Court treated each provision of the program as severable and held that each provision separately violated the Establishment Clause. See Nyquist, 413 U.S. at 791-95, 93 S.Ct. 2955. Nothing in Zelman suggests the Court would have upheld the tax deduction provision of the New York program if it had been considered in isolation. See Zelman, 536 U.S. at 661, 122 S.Ct. 2460 (observing that New York program "gave a package of benefits exclusively to private schools and the parents of private school enrollees” and "provided tax benefits 'unrelated to the amount of money actually expended by any parent on tuition,' ensuring a windfall to parents of children in religious schools” (quoting Nyquist, 413 U.S. at 790, 93 S.Ct. 2955)).
. The dissent asserts that the "allocation of scholarship funds” is not a traditional governmental function. Dissent 668 n. 20. This framing of the question is unhelpfully narrow. Educational policy is certainly a traditional government function, and the state’s decision to reimburse contributions to private scholarship funds is indisputably an educational policy decision.
. See Staley v. Harris County, Tex., 461 F.3d 504, 513 (5th Cir.2006); Bonham v. D.C. Library Admin., 989 F.2d 1242, 1244-45 (D.C.Cir.1993). In Staley, the Fifth Circuit considered the community response to a government-sponsored monument of a local citizen carrying a Bible in evaluating whether the monument had a valid secular purpose. See 461 F.3d at 513 (‘‘[T]he fact that the monument, with the Bible, stood without complaint [from citizens] for thirty-two years, supports the notion that the original purpose was not objectively seen as predominantly religious.”). In Bonham, Judge Mikva, re*658versing the district court’s dismissal under Rule 12(b)(6) of a pro se plaintiff's claim that the closing of a public library on Easter Sunday violated the Establishment Clause, observed: "In determining the legislative purpose of a law or government practice, courts generally look to .... testimony of parties who participated in the enactment or implementation of the challenged law or practice, historical context, and the sequence of events leading to the passage of the law or the initiation of the practice.” 989 F.2d at 1244-45 (emphasis added).