The Constitutionality of “Charitable Choice”

Posted on June 1, 1999 In Press Releases

The Constitutionality of “Charitable Choice”

Charitable choice requires that social service providers be permitted to participate in government grant programs without regard to their religious character. When discussing the restraints of the Establishment Clause on generally available programs of aid, this principle of equal treatment or nondiscrimination is termed “neutrality theory.” The Supreme Court case that most recently addressed the neutrality principle is Mitchell v. Helms.[1] The four-justice plurality, written by Justice Thomas, and joined by the Chief Justice, and Justices Scalia and Kennedy, embraced the neutrality principle.[2] In the sense of legal positivism, however, Justice O’Connor’s opinion concurring in the judgment is controlling in the lower courts.[3]

From Justice O’Connor’s opinion, when combined with the numbers comprising the plurality, it can be said that: (1) neutral, indirect aid to a religious organization does not violate the Establishment Clause;[4] (2) neutral, direct aid to a religious organization does not, without more, violate the Establishment Clause.[5] Having indicated that program neutrality is an important but not sufficient factor in determining the constitutionality of direct aid, Justice O’Connor went on to say that: (a) Meek v. Pittenger[6] and Wolman v. Walter[7] should be overruled; (b) the Court should do away with presumptions of unconstitutionality, hence, the “pervasively sectarian” test would seem to be no longer relevant to the Court’s analysis; and (c) proof of actual diversion of government aid to religious indoctrination would be violative of the Establishment Clause.

The issue in Mitchell concerned the scope of the Establishment Clause when evaluating a program of governmental assistance entailing direct aid to organizations, including religious organizations.[8] The federal program at issue in Mitchell entailed federal aid to k-12 schools, public and private, secular and religious, allocated on a per-student basis. The same principles apply, presumably, to social service or health care programs, albeit the Court has scrutinized more closely direct aid to k-12 schools compared to social welfare and health care services.[9]

In cases involving programs of direct aid to k-12 schools, Justice O’Connor started by announcing that she will follow the analysis used in Agostini v. Felton.[10] She began with the two-prong Lemon test: is there a secular purpose and is the primary effect to advance religion? Plaintiffs did not contend that the program failed to have a secular purpose, thus she moved on to the second prong of Lemon.[11] Drawing on Agostini, Justice O’Connor noted that the primary-effect prong is guided by three criteria. The first two inquiries are whether the aid is diverted to government indoctrination of religion and whether the program of aid is neutral with respect to religion. The third criterion is whether the program creates excessive administrative entanglement, now clearly just a factor under the primary-effect prong.[12] Alternatively, the same evidence sifted under the effect prong of Lemon can be examined pursuant to Justice O’Connor’s no-endorsement test.[13]

To summarize, when examining a government program of direct aid, the steps of an Establishment Clause analysis as outlined by Justice O’Connor are as follows:

1. Does the program of aid have a secular purpose?

2. Does the program of aid have the primary effect of advancing religion? The effect inquiry is guided by three factors:

a. Is the aid actually diverted to religious indoctrination?

b. Does the program define the eligibility of participating organizations without regard to religion?

c. Does the program create excessive administrative entanglement?

[Alt. 2.] The no-endorsement test asks whether an “objective observer” would feel civic alienation upon examining the program of aid.[14]

After reviewing the Court’s application in Agostini of the above-outlined analysis, Justice O’Connor then inquired into factors 2(a) and 2(b) on the facts as presented in Mitchell. Because the federal k-12 educational program was unquestionably neutral as to religion,[15] she spent most of her time on the diversion-to-indoctrination factor. Justice O’Connor noted that the educational aid in question was to supplement rather than to supplant monies from private sources, that the nature of the aid was such that it could not reach the coffers of a religious school, and that the use of the aid was statutorily restricted to “secular, neutral, and nonideological” purposes. On the point about nature of the aid, she noted that the aid consisted of materials and equipment rather than cash, and that the materials were loaned to the religious schools with government retaining title.[16]

Justice O’Connor went on to reject a rule of unconstitutionality where the character of aid is capable of diversion to religious indoctrination, hence overruling Meek and Wolman.[17] In doing so, she rejected employing presumptions of unconstitutionality, as the Court did in Agostini, and stated that she requires proof that the government aid was actually diverted.[18] Because the “pervasively sectarian” test is a presumption of this sort, indeed, an irrebutable presumption (i.e., any direct aid to a k-12 parochial school is assumed to advance sectarian or inherently religious objectives), [19] Justice O’Connor is best understood to have rendered the “pervasively sectarian” test no longer relevant.[20] Justice O’Connor’s opinion apparently requires that religious organizations monitor or “compartmentalize” program aid.[21] If the aid is utilized for secular educational functions, then there is no problem. If the aid flows into the entirety of an educational activity and some “religious indoctrination [is] taking place therein,” then that indoctrination “would be directly attributable to the government.”[22]

In the final part of her opinion, Justice O’Connor explained why safeguards in the federal educational program at issue in Mitchell reassured her that the program, as applied, was not violative of the Establishment Clause. A program of aid need not be failsafe, nor does every program require pervasive monitoring.[23] The statute limited aid to “secular, neutral, and nonideological” assistance, required that the aid supplement rather than supplant private-source funds, and expressly prohibited use of the aid for “religious worship or instruction.”[24] State educational authorities required religious schools to sign assurances of compliance with the above-quoted statutory spending prohibition a term of the contract.[25] The state conducted monitoring visits, albeit infrequent, and did a random review of government-purchased library books for their religious content.[26] There was also monitoring of religious schools by local public school districts, including review of required project proposals submitted by the religious schools and annual program-review visits to each recipient school.[27] The monitoring did catch instances of actual diversion, albeit not a substantial number, and Justice O’Connor was encouraged that when problems were detected they were corrected.[28]

The diversion-prevention factors of supplement/supplant, aid not reaching religious coffers, the form of aid being in-kind rather than cash, and statutory prohibitions on “worship or other ideological uses,” are not talismanic. Justice O’Connor expressly declined to elevate them to the level of constitutional requirements.[29] Rather, the factors are to be utilized if they make sense given the nature of the government’s program of aid. There may be programs where, for example, the supplement/supplant factor makes little sense.[30]


Charitable choice is clearly responsive to many aspects of Justice O’Connor’s opinion in Mitchell:

1. The legislation giving rise to the program of aid expressly prohibits diversion of the aid to “sectarian worship, instruction, or proselytization.”[31]

2. The government-source funds may be kept in accounts separate from an FBO’s private-source funds, and the government may audit the accounts with government funds at any time.[32]

3. The government requires regular audits by a certified public accountant. The results are to be submitted to the government, along with a plan of correction if any noncompliance is uncovered.[33]

4. FBOs may self-monitor and, if need be, segregate aspects of their program to ensure that the government-provided aid is spent only on program activities involving no religious indoctrination.[34]

Moreover, nothing in charitable choice prevents officials from implementing additional procurement regulations such as requiring all providers to sign an Assurance of Compliance. It would be a material breach of the contract if a provider’s conduct does not measure up to the assurances. It is also common for procurement regulations to require self-audits. Any discrepancies uncovered by a self-audit must be promptly reported to the government along with a plan to correct the deficiency. These procurement policies would, of course, have to be equally applicable to secular providers, and none of the details of the procurement requirements may be intrusive of the “religious character” of FBOs. Charitable choice facially satisfies the parameters of Justice O’Connor’s Mitchell opinion, and for most FBOs it can be applied in accord with her requirements as well.


[1] 530 U.S.793, 120 S. Ct. 2530 (2000) (plurality opinion).

[2] Before proceeding under the assumption that Justice O’Connor’s opinion is controlling, at least until the Supreme Court should again address this issue, it is well to extol the virtues of the plurality opinion. The plurality adopted the neutrality principle without any qualifications. Hence, the plurality is not only a bright-line rule of easy and sure application, but brings the constitutional theory of the Establishment Clause—heretofore in confusing disarray—in line with the Free Exercise Clause and the Free Speech Clauses. See Carl H. Esbeck, Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 Notre Dame J. of Law, Ethics & Pub. Policy 285, 300-02 (1999). In the plurality opinion, Justice Thomas said that failing to adhere to the neutrality principle “would raise serious questions under the Free Exercise Clause.” Mitchell, 120 S. Ct. at 2555 n.19.

[3] Id. at 2556 (O’Connor, J., concurring in the judgment). Justice Breyer joined Justice O’Connor’s opinion.

[4] Id. at 2558-59.

[5] Id. at 2557.

[6] Id. at 2556, 2563-66. Meek v. Pittenger, 421 U.S. 349 (1975) (plurality in part), had struck down loans to religious schools of maps, photos, films, projectors, recorders, and lab equipment, as well as disallowed services for counseling, remedial and accelerated teaching, psychological, speech, and hearing therapy.

[7] Id. at 2556, 2563-66. Wolman v. Walter, 433 U.S. 229 (1977) (plurality in part), had struck down use of public school personnel to provided guidance, remedial and therapeutic speech and hearing services away from the religious school campus, disallowed the loan of instructional materials to religious schools, as well as disallowed transportation for field trips by religious school students.

[8] Mitchell does not speak—except in the most general way—to the scope of the Establishment Clause when it comes to other issues such as religious exemptions in regulatory or tax laws, issues of church autonomy, religious symbols on public property, or religious expression by government officials. In that regard, Mitchell continues the balkanization of doctrine, that is, different Establishment Clause tests for different contests. This splintering of doctrine can be avoided because a comprehensive and integrated view of the Establishment Clause is possible. See Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa L. Rev. 1 (1998).

[9] See Bowen v. Kendrick, 487 U.S. 589 (1989) (upholding, on its face, religiously neutral funding of teenage sexuality counseling centers); Bradfield v. Roberts, 15 U.S. 291 (1899) (upholding use of federal funds for construction at religious hospital).

[10] Mitchell, 120 S. Ct. at 2556, 2560. Agostini v. Felton, 521 U.S. 203 (1997), upheld a neutral program whereby public school teachers go into religious schools to deliver remedial educational services.

[11] Mitchell, 120 S. Ct. at 2560. Plaintiffs were wise not to argue the program lacked a secular purpose. See Carl H. Esbeck, The Lemon Test: Should It Be Retained, Reformulated or Rejected ?, 4 Notre Dame J. of Law, Ethics & Pub. Policy 513, 515-21 (1990) (collecting authorities holding that the secular-purpose prong of Lemon is easily satisfied when dealing with neutral programs of aid to education, health care, or social welfare).

[12] In Mitchell, plaintiffs did not contend that the program created excessive administrative entanglement. 120 S. Ct. at 2560. For a survey of cases where the Supreme Court sought to employ the excessive entanglement test, see Carl H. Esbeck, supra note 27, Notre Dame J. at 304-07 (1999).

The Supreme Court has long since abandon “political divisiveness” as an aspect of entanglement analysis. See Carl H. Esbeck, A Restatement of the Supreme Court’s Law of Religious Freedom: Coherence, Conflict, or Chaos?, 70 Notre Dame L. Rev. 581, 634-35 (1995) (collecting authorities).

[13] Mitchell, 120 S. Ct. at 2560.

[14] Endorsement is unlikely unless a facially neutral program, when applied, singles out religion for favoritism. In Mitchell, Justice O’Connor little utilized the alternative endorsement test. See id. at 2559. For criticism of the no-endorsement test because it focuses on individual harm rather than on policing the line between church and state, see Esbeck, supra note 37, Notre Dame L. Rev. at 631. The endorsement test, if still used by courts facing claims under the Establishment Clause, is more suited to analyzing issues such as government displaying religious symbols on public property.

[15] Religious neutrality, explained Justice O’Connor, ensures that an aid program does not provide a financial incentive for citizens intended to ultimately benefit from the aid “to undertake religious indoctrination.” Mitchell, 120 S. Ct. at 2561 (quoting Agostini).

[16] Id. at 2562. On at least one occasion the Supreme Court upheld direct cash payments to religious k-12 schools. See Committee for Public Education v. Regan, 444 U.S. 646 (1980). The payments were in reimbursement for state-required testing. Rejecting a rule that cash was never permitted, the Regan Court explained, “[w]e decline to embrace a formalistic dichotomy that bears so little relationship either to common sense or the realities of school finance. None of our cases requires us to invalidate these reimbursements simply because they involve [direct] payments in cash.” Id. at 658. See also Mitchell, 120 S. Ct. at 2546 n.8 (noting that monetary assistance is not “per se bad”).

[17] 120 S. Ct at 2562-68.

[18] Id. at 2567.

[19]See id. at 2561 (noting that Agostini rejected a presumption drawn from Meek and later Aguilar); id. at 2563-64 (quoting from Meek the “pervasively sectarian” rationale and noting it created an irrebutable presumption which Justice O’Connor later rejects); id. at 2558, 2566-67 (reading out of Bowen v. Kendrick dependence on the “pervasively sectarian” test); id. at 2567 (requiring proof of actual diversion, thus rendering “pervasively sectarian” test irrelevant); id. at 2568 (rejecting presumption that teachers employed by religious schools cannot follow statutory requirement that aid be use only for secular purposes); and id. at 2570 (rejecting presumption of bad faith on the part of religious school officials).

[20] While Justice O’Connor did not join in the plurality’s denunciation of the “pervasively sectarian” doctrine as bigoted, her opinion made plain that the doctrine has now lost all relevance. Justice O’Connor did not, for example, take issue with plurality’s condemnation of the doctrine as anti-Catholic, and in fact explicitly joined in overruling the specific portions of Meek and Hunt that set forth the operative core of the “pervasively sectarian” concept. 120 S. Ct. at 2563.

Being a “pervasively sectarian” organization never totally disqualified a school from receiving direct state aid. For example, the Court repeatedly permitted school bussing and secular textbooks. Other aid as well was occasionally upheld such as reimbursement for mandatory testing, but the lines between permitted and prohibited forms of aid was unclear. Indeed, the permitting of textbooks but not wall maps, the permitting of bussing from home but not on field trips, let the Court in for considerable ridicule. This line drawing was unprincipled, and dispensing with the need to do so is yet another reason to welcome discarding of the “pervasively sectarian” test.

[21] Id. at 2568.

[22] Id. (explaining why her position in Mitchell is consistent with her position in Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985)).

[23] 120 S. Ct. at 2569.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 2569-70.

[28] Id. at 2571-72.

[29] Id. at 2572 (“[r]gardless of whether these factors are constitutional requirements . . .”).

[30] In Committee for Public Education v. Regan, 444 U.S. 646, 661-62 (1980), the Supreme Court upheld aid that “supplanted” expenses otherwise borne by religious schools for state-required testing. Even the dissent in Mitchell concedes that reconciliation between Regan and an absolute prohibition on aid that supplants rather supplements “is not easily explained.” 120 S. Ct. at 2588 n.17 (Souter, J., dissenting). Regan suggests that no “blanket rule” exists. Id. at 2544 n.7 (plurality).

To get a fuller sense of what is important to Justice O’Connor, one should also consider her multi-factor analyses in her separate opinions in Rosenberger v. Rector of the Univ. of Virginia, 515 U.S. 819, 849-51 (1995), Capitol Sq. Review & Adv. Bd. v. Pinette, 515 U.S. 753, 776-83 (1995); and Bowen v. Kendrick, 487 U.S. 589, 622 (1989). Justice O’Connor is prone to have a list of factors to examine. However, as her separate opinions demonstrate, the factors she deems relevant are heavily wedded to the particular program, policy, or practice under review. Accordingly, the factors Justice O’Connor lists in Mitchell should not be elevated to the level of constitutional requirements.

[31] 42 U.S.C. § 604a(j).

[32] 42 U.S.C. § 604a(h). In the Substance Abuse and Mental Health Act the segregation of accounts is required. 42 U.S.C. § 300x-65(g)(2). This improves accountability with little loss of organizational autonomy.

[33] All federal programs involving financial assistance to nonprofits institutions require annual audits by a certified public accountant whenever the nonprofit receives less than $300,000 a year in total federal awards. Executive Office of the President of the United State, Office of Management and Budget, Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations, 62 Fed. Reg. 35289 to 35302 (June 30, 1997). The independent audit is not just over financial expenditures, but includes a review for program compliance.

[34] Justice O’Connor nowhere defined what she meant by “religious indoctrination.” The Supreme Court has found that prayer, devotional Bible reading, veneration of the Ten Commandments, classes in confessional religion, and the biblical creation story taught as science are all inherently religious. Esbeck, supra note 27, Notre Dame J. at 307-08 (collecting cases).