POWELL, J., concurring

473 U. S.

U. S. 602, 619 (1971)). This is true whether the subsidized teachers are religious school teachers, as in Lemon, or public school teachers teaching secular subjects to parochial school children at the parochial schools. Judge Friendly, writing for the unanimous Court of Appeals, agreed with this assessment of our cases. He correctly observed that the structure of the Title I program required the active and extensive surveillance that the City has provided, and, "under Meek, this very surveillance constitutes excessive entanglement even if it has succeeded in preventing the fostering of religion." 739 F. 2d, at 66.

This risk of entanglement is compounded by the additional risk of political divisiveness stemming from the aid to religion at issue here. I do not suggest that at this point in our history the Title I program or similar parochial aid plans could result in the establishment of a state religion. There likewise is small chance that these programs would result in significant religious or denominational control over our democratic processes. See Wolman v. Walter, supra, at 263 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). Nonetheless, there remains a considerable risk of continuing political strife over the propriety of direct aid to religious schools and the proper allocation of limited governmental resources. As this Court has repeatedly recognized, there is a likelihood whenever direct governmental aid is extended to some groups that there will be competition and strife among them and others to gain, maintain, or increase the financial support of government. E. g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 796-797 (1973); Lemon v. Kurtzman, supra, at 623. In States such as New York that have large and varied sectarian populations, one can be assured that politics will enter into any state decision to aid parochial schools. Public schools, as well as private schools, are under increasing financial pressure to meet real and perceived needs. Thus, any proposal to extend direct governmental

1

402

POWELL, J., concurring

aid to parochial schools alone is likely to spark political disagreement from taxpayers who support the public schools, as well as from nonrecipient sectarian groups, who may fear that needed funds are being diverted from them. In short, aid to parochial schools of the sort at issue here potentially leads to "that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point." Walz v. Tax Comm'n, 397 U. S. 664, 694 (1970) (opinion of Harlan, J.). Although the Court's opinion does not discuss it at length, see ante, at 413, the potential for such divisiveness is a strong additional reason for holding that the Title I and Grand Rapids programs are invalid on entanglement grounds.

The Title I program at issue in this case also would be invalid under the "effects" prong of the test adopted in Lemon v. Kurtzman, supra.* As has been discussed thoroughly in Ball, ante, at 392-397, with respect to the Grand Rapids programs, the type of aid provided in New York by the Title I program amounts to a state subsidy of the parochial schools by relieving those schools of the duty to provide the remedial and supplemental education their children require. This is not the type of "indirect and incidental effect beneficial to [the] religious institutions" that we suggested in Nyquist would survive Establishment Clause scrutiny. 413 U. S., at 775. Rather, by directly assuming part of the parochial schools' education function, the effect of the Title I aid is "inevitably . . . to subsidize and advance the religious mission of [the] sectarian schools," id., at 779-780, even though the program provides that only secular subjects will

*Nothing that I say here should be construed as suggesting that a court inevitably must determine whether all three prongs of the Lemon test have been violated. See, e. g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 794 (1973). I discuss an additional infirmity of the programs at issue in these cases only to emphasize why even a beneficial program may be invalid because of the way it is structured.

POWELL, J., concurring

473 U. S.

be taught. As in Meek v. Pittenger, 421 U. S. 349 (1975), the secular education these schools provide goes ""hand in hand'" with the religious mission that is the reason for the schools' existence. 421 U. S., at 366 (quoting Lemon v. Kurtzman, 403 U. S., at 657 (opinion of BRENNAN, J.)). Because of the predominantly religious nature of the schools, the substantial aid provided by the Title I program "inescapably results in the direct and substantial advancement of religious activity." Meek v. Pittenger, supra, at 366.

I recognize the difficult dilemma in which governments are placed by the interaction of the "effects" and entanglement prongs of the Lemon test. Our decisions require governments extending aid to parochial schools to tread an extremely narrow line between being certain that the "principal or primary effect" of the aid is not to advance religion, Lemon v. Kurtzman, supra, at 612, and avoiding excessive entanglement. Nonetheless, the Court has never foreclosed the possibility that some types of aid to parochial schools could be valid under the Establishment Clause. Mueller v. Allen, 463 U. S., at 393. Our cases have upheld evenhanded secular assistance to both parochial and public school children in some areas. E. g., ibid. (tax deductions for educational expenses); Board of Education v. Allen, 392 U. S. 236 (1968) (provision of secular textbooks); Everson v. Board of Education, 330 U. S. 1 (1947) (reimbursements for bus fare to school). I do not read the Court's opinion as precluding these types of indirect aid to parochial schools. In the cases cited, the assistance programs made funds available equally to public and nonpublic schools without entanglement. The constitutional defect in the Title I program, as indicated above, is that it provides a direct financial subsidy to be administered in significant part by public school teachers within parochial schools-resulting in both the advancement of religion and forbidden entanglement. If, for example, Congress could fashion a program of evenhanded financial assistance to both public and private schools that could

402

BURGER, C. J., dissenting

be administered, without governmental supervision in the private schools, so as to prevent the diversion of the aid from secular purposes, we would be presented with a different question.

I join the opinions and judgments of the Court.

CHIEF JUSTICE BURGER, dissenting.

Under the guise of protecting Americans from the evils of an Established Church such as those of the 18th century and earlier times, today's decision will deny countless schoolchildren desperately needed remedial teaching services funded under Title I. The program at issue covers remedial reading, reading skills, remedial mathematics, English as a second language, and assistance for children needing special help in the learning process. The "remedial reading" portion of this program, for example, reaches children who suffer from dyslexia, a disease known to be difficult to diagnose and treat. Many of these children now will not receive the special training they need, simply because their parents desire that they attend religiously affiliated schools.

What is disconcerting about the result reached today is that, in the face of the human cost entailed by this decision, the Court does not even attempt to identify any threat to religious liberty posed by the operation of Title I. I share JUSTICE WHITE's concern that the Court's obsession with the criteria identified in Lemon v. Kurtzman, 403 U. S. 602 (1971), has led to results that are "contrary to the long-range interests of the country," ante, at 400. As I wrote in Wallace v. Jaffree, 472 U. S. 38, 89 (1985) (dissenting opinion), "our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion." Federal programs designed to prevent a generation of children from growing up without being able to read effectively are not remotely steps in that direction. It borders on paranoia to perceive the Archbishop of Canterbury or the Bishop of

REHNQUIST, J., dissenting

473 U. S.

Rome lurking behind programs that are just as vital to the Nation's schoolchildren as textbooks, see generally Board of Education v. Allen, 392 U. S. 236 (1968), transportation to and from school, see generally Everson v. Board of Education, 330 U. S. 1 (1947), and school nursing services.

On the merits of this case, I dissent for the reasons stated in my separate opinion in Meek v. Pittenger, 421 U. S. 349 (1975). We have frequently recognized that some interaction between church and state is unavoidable, and that an attempt to eliminate all contact between the two would be both futile and undesirable. Justice Douglas, writing for the Court in Zorach v. Clauson, 343 U. S. 306, 312 (1952), stated:

"The First Amendment . . . does not say that in every and all respects there shall be a separation of Church and State. . . . Otherwise the state and religion would be aliens to each other-hostile, suspicious, and even unfriendly."

The Court today fails to demonstrate how the interaction occasioned by the program at issue presents any threat to the values underlying the Establishment Clause.

I cannot join in striking down a program that, in the words of the Court of Appeals, "has done so much good and little, if any, detectable harm." 739 F. 2d 48, 72 (CA2 1984). The notion that denying these services to students in religious schools is a neutral act to protect us from an Established Church has no support in logic, experience, or history. Rather than showing the neutrality the Court boasts of, it exhibits nothing less than hostility toward religion and the children who attend church-sponsored schools.

JUSTICE REHNQUIST, dissenting.

I dissent for the reasons stated in my dissenting opinion in Wallace v. Jaffree, 472 U. S. 38, 91 (1985). In this case the Court takes advantage of the "Catch-22" paradox of its own creation, see Wallace, supra, at 109-110 (REHNQUIST, J.,