U.S. Supreme Court Mueller v. Allen, 463
U.S. 388 (1983) Mueller v. Allen No. 82-195 Argued April 18, 1983 Decided June 29, 1983 463
U.S. 388 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus A Minnesota statute (§ 290.09, subd. 22) allows state taxpayers,
in computing their state income tax, to deduct expenses incurred in
providing "tuition, textbooks and transportation" for their
children attending an elementary or secondary school. Petitioner
Minnesota taxpayers brought suit in Federal District Court against
respondent Minnesota Commissioner of Revenue and respondent parents
who had taken the tax deduction for expenses incurred in sending
their children to parochial schools, claiming that § 290.09, subd.
22, violates the Establishment Clause of the First Amendment by
providing financial assistance to sectarian institutions. The
District Court granted summary judgment for respondents, holding
that the statute is neutral on its face and in its application and
does not have a primary effect of either advancing or inhibiting
religion. The Court of Appeals affirmed. Held: Section 290.09, subd. 22, does not violate the
Establishment Clause, but satisfies all elements of the
"three-part" test laid down in Lemon v. Kurtzman, 403 U. S. 602 ,
that must be met for such a statute to be upheld under the Clause.
Pp. 463 U. S.
392 -403.

															(a) The tax deduction in question has the secular purpose of
ensuring that the State's citizenry is well educated, as well as of
assuring the continued financial health of private schools, both
sectarian and nonsectarian. Pp. 463 U. S.
394 -395.

															(b) The deduction does not have the primary effect of advancing
the sectarian aims of nonpublic schools. It is only one of many
deductions -- such as those for medical expenses and charitable
contributions -- available under the Minnesota tax laws; is
available for educational expenses incurred by all parents, whether
their children attend public schools or private sectarian or
nonsectarian private schools, Committee for Public Education v.
Nyquist, 413 U. S. 756 ,
distinguished; and provides aid to parochial schools only as a
result of decisions of individual parents, rather than directly
from the State to the schools themselves. The Establishment
Clause's historic purposes do not encompass the sort of attenuated
financial benefit that eventually flows to parochial schools from
the neutrally available tax benefit at issue. The fact that,
notwithstanding § 290.09, subd. 22's facial neutrality, a
particular annual statistical analysis shows that the statute's
application primarily benefits religious institutions Page 463 U. S. 389 does not provide the certainty needed to determine the statute's
constitutionality. Moreover, private schools, and parents paying
for their children to attend these schools, make special
contributions to the areas in which the schools operate. Pp. 463 U. S.
396 -402.

															(c) Section 290.09, subd. 22, does not "excessively entangle"
the State in religion. The fact that state officials must determine
whether particular textbooks qualify for the tax deduction and must
disallow deductions for textbooks used in teaching religious
doctrines is an insufficient basis for finding such entanglement.
P. 463 U. S.
403 .

															676 F.2d 1195, affirmed.

															REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN,
BLACKMUN, and STEVENS, JJ., joined post, p. 463 U. S.
404 . Page 463 U. S. 390 JUSTICE REHNQUIST delivered the opinion of the Court.

															Minnesota allows taxpayers, in computing their state income tax,
to deduct certain expenses incurred in providing for the education
of their children. Minn.Stat. § 290.09, subd. 22 (1982). [ Footnote 1 ] The United States Court of
Appeals for the Eighth Circuit held that the Establishment Clause
of the First Amendment, as made applicable to the States by the
Fourteenth Amendment, was not offended by this arrangement. Because
this question was reserved in Committee for Public Education v.
Nyquist, 413 U. S. 756 (1973), and because Page 463 U. S. 391 of a conflict between the decision of the Court of Appeals for
the Eighth Circuit and that of the Court of Appeals for the First
Circuit in Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855 (CA1 1980), we granted certiorari. 459 U.S. 820
(1982). We now affirm.

															Minnesota, like every other State, provides its citizens with
free elementary and secondary schooling. Minn.Stat. §§ 120.06,
120.72 (1982). It seems to be agreed that about 820,000 students
attended this school system in the most recent school year. During
the same year, approximately 91,000 elementary and secondary
students attended some 500 privately supported schools located in
Minnesota, and about 95% of these students attended schools
considering themselves to be sectarian.

															Minnesota, by a law originally enacted in 1955 and revised in
1976 and again in 1978, permits state taxpayers to claim a
deduction from gross income for certain expenses incurred in
educating their children. The deduction is limited to actual
expenses incurred for the "tuition, textbooks and transportation"
of dependents attending elementary or secondary schools. A
deduction may not exceed $500 per dependent in grades K through 6
and $700 per dependent in grades 7 through 12. Minn.Stat. § 290.09,
subd. 22 (1982). [ Footnote
2 ] Page 463 U. S. 392 Petitioners -- certain Minnesota taxpayers -- sued in the United
States District Court for the District of Minnesota claiming that §
290.09, subd. 22, violated the Establishment Clause by providing
financial assistance to sectarian institutions. They named as
defendants, respondents here, the Commissioner of the Department of
Revenue of Minnesota and several parents who took advantage of the
tax deduction for expenses incurred in sending their children to
parochial schools. The District Court granted respondents' motion
for summary judgment, holding that the statute was "neutral on its
face and in its application, and does not have a primary effect of
either advancing or inhibiting religion." 514 F . Supp. 998, 1003
(1981). On appeal, the Court of Appeals affirmed, concluding that
the Minnesota statute substantially benefited a "broad class of
Minnesota citizens." 676 F.2d 1195, 1205 (1982).

															Today's case is no exception to our oft-repeated statement that
the Establishment Clause presents especially difficult questions of
interpretation and application. It is easy enough to quote the few
words constituting that Clause -- "Congress shall make no law
respecting an establishment of Page 463 U. S. 393 religion." It is not at all easy, however, to apply this Court's
various decisions construing the Clause to governmental programs of
financial assistance to sectarian schools and the parents of
children attending those schools. Indeed, in many of these
decisions, we have expressly or implicitly acknowledged that "we
can only dimly perceive the lines of demarcation in this
extraordinarily sensitive area of constitutional law." Lemon v.
Kurtzman, 403 U. S. 602 , 403 U. S. 612 (1971), quoted in part with approval in Nyquist, 413 U.S.
at 413 U. S. 761 ,
n. 5.

															One fixed principle in this field is our consistent rejection of
the argument that "any program which in some manner aids an
institution with a religious affiliation" violates the
Establishment Clause. Hunt v. McNair, 413 U.
S. 734 , 413 U. S. 742 (1973). See, e.g., Bradfield v. Roberts, 175 U.
S. 291 (1899); Walz v. Tax Comm'n, 397 U.
S. 664 (1970). For example, it is now well established
that a State may reimburse parents for expenses incurred in
transporting their children to school, Everson v. Board of
Education, 330 U. S. 1 (1947),
and that it may loan secular textbooks to all schoolchildren within
the State, Board of Education v. Allen, 392 U.
S. 236 (1968).

															Notwithstanding the repeated approval given programs such as
those in Allen and Everson, our decisions also
have struck down arrangements resembling, in many respects, these
forms of assistance. See, e.g., Lemon v. Kurtzman, supra;
Levitt v. Committee for Public Education, 413 U.
S. 472 (1973); Meek v. Pittenger, 421 U.
S. 349 (1975); Wolman v. Walter, 433 U.
S. 229 , 433 U. S.
237 -238 (1977). [ Footnote 3 ] In this case, we Page 463 U. S. 394 are asked to decide whether Minnesota's tax deduction bears
greater resemblance to those types of assistance to parochial
schools we have approved, or to those we have struck down.
Petitioners place particular reliance on our decision in Committee for Public Education v. Nyquist, supra, where we
held invalid a New York statute providing public funds for the
maintenance and repair of the physical facilities of private
schools and granting thinly disguised "tax benefits," actually
amounting to tuition grants, to the parents of children attending
private schools. As explained below, we conclude that § 290.09,
subd. 22, bears less resemblance to the arrangement struck down in Nyquist than it does to assistance programs upheld in our
prior decisions and those discussed with approval in Nyquist. The general nature of our inquiry in this area has been guided,
since the decision in Lemon v. Kurtzman, supra, by the
"three-part" test laid down in that case:

															"First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion . . . ; finally, the statute must
not foster 'an excessive government entanglement with
religion.'" Id. at 403 U. S.
612 -613. While this principle is well settled, our cases
have also emphasized that it provides "no more than [a] helpful
signpos[t]" in dealing with Establishment Clause challenges. Hunt v. McNair, supra, at 413 U. S. 741 .
With this caveat in mind, we turn to the specific challenges raised
against § 290.09, subd. 22, under the Lemon framework.

															Little time need be spent on the question of whether the
Minnesota tax deduction has a secular purpose. Under our prior
decisions, governmental assistance programs have consistently
survived this inquiry even when they have run afoul of other
aspects of the Lemon framework. See, e.g., Lemon v. Kurtzman, supra; Meek v. Pittenger, supra, at 421 U. S. 363 ; Wolman v. Walter, supra, at 433 U. S. 236 .
This reflects, at least in part, our reluctance to attribute
unconstitutional motives to the States, particularly when a
plausible secular purpose Page 463 U. S. 395 for the State's program may be discerned from the face of the
statute.

															A State's decision to defray the cost of educational expenses
incurred by parents -- regardless of the type of schools their
children attend -- evidences a purpose that is both secular and
understandable. An educated populace is essential to the political
and economic health of any community, and a State's efforts to
assist parents in meeting the rising cost of educational expenses
plainly serves this secular purpose of ensuring that the State's
citizenry is well educated. Similarly, Minnesota, like other
States, could conclude that there is a strong public interest in
assuring the continued financial health of private schools, both
sectarian and nonsectarian. By educating a substantial number of
students, such schools relieve public schools of a correspondingly
great burden -- to the benefit of all taxpayers. In addition,
private schools may serve as a benchmark for public schools, in a
manner analogous to the "TVA yardstick" for private power
companies. As JUSTICE POWELL has remarked:

															"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." Wolman v. Walter, supra, at 433 U. S. 262 (concurring in part, concurring in judgment in part, and dissenting
in part). All these justifications are readily available to support
§ 290.09, subd. 22, and each is sufficient to satisfy the secular
purpose inquiry of Lemon. [ Footnote 4 ] Page 463 U. S. 396 We turn therefore to the more difficult but related question
whether the Minnesota statute has "the primary effect of advancing
the sectarian aims of the nonpublic schools." Committee for
Public Education v. Regan, 444 U. S. 646 , 444 U. S. 662 (1980); Lemon v. Kurtzman, 403 U.S. at 403 U. S.
612 -613. In concluding that it does not, we find several
features of the Minnesota tax deduction particularly significant.
First, an essential feature of Minnesota's arrangement is the fact
that § 290.09, subd. 22, is only one among many deductions -- such
as those for medical expenses, § 290.09, subd. 10, and charitable
contributions, § 290.21, subd. 3 -- available under the Minnesota
tax laws. [ Footnote 5 ] Our
decisions consistently have recognized that, traditionally,
"[l]egislatures have especially broad latitude in creating
classifications and distinctions in tax statutes," Regan v.
Taxation With Representation of Wash., 461 U.
S. 540 , 461 U. S. 547 (1983), in part because the "familiarity with local conditions"
enjoyed by legislators especially enables them to "achieve an
equitable distribution of the tax burden." Madden v.
Kentucky, 309 U. S. 83 , 309 U. S. 88 (1940). Under our prior decisions, the Minnesota Legislature's
judgment that a deduction for educational expenses fairly equalizes
the tax burden of its citizens and encourages desirable
expenditures for educational purposes is entitled to substantial
deference. [ Footnote 6 ] Page 463 U. S. 397 Other characteristics of § 290.09, subd. 22, argue equally
strongly for the provision's constitutionality. Most importantly,
the deduction is available for educational expenses incurred by all parents, including those whose children attend public
schools and those whose children attend nonsectarian private
schools or sectarian private schools. Just as in Widmar v.
Vincent, 454 U. S. 263 , 454 U. S. 274 (1981), where we concluded that the State's provision of a forum
neutrally "available to a broad class of nonreligious as well as
religious speakers" does not "confer any imprimatur of state
approval," ibid., so here: "[t]he provision of benefits to
so broad a spectrum of groups is an important index of secular
effect." [ Footnote 7 ] Ibid. Page 463 U. S. 398 In this respect, as well as others, this case is vitally
different from the scheme struck down in Nyquist. There,
public assistance amounting to tuition grants was provided only to
parents of children in nonpublic schools. This fact had
considerable bearing on our decision striking down the New York
statute at issue; we explicitly distinguished both Allen and Everson on the grounds that "[i]n both cases the class
of beneficiaries included all schoolchildren, those in
public as well as those in private schools." 413 U.S. at 413 U. S.
782 -783, n. 38 (emphasis in original). [ Footnote 8 ] Moreover, we intimated that
"public assistance ( e.g., scholarships) made available
generally without regard to the sectarian-nonsectarian, or
public-nonpublic nature of the institution benefited," ibid., might not offend the Establishment Clause. We think
the tax deduction adopted by Minnesota is more similar to this
latter type of program than it is to the arrangement struck down in Nyquist. Unlike the assistance at issue in Nyquist, § 290.09, subd. 22, permits all parents --
whether their children attend public school or private -- to deduct
their children's educational expenses. As Widmar and our
other decisions indicate, a program, like § 290.09, subd. 22, that
neutrally provides Page 463 U. S. 399 state assistance to a broad spectrum of citizens is not readily
subject to challenge under the Establishment Clause.

															We also agree with the Court of Appeals that, by channeling
whatever assistance it may provide to parochial schools through
individual parents, Minnesota has reduced the Establishment Clause
objections to which its action is subject. It is true, of course,
that financial assistance provided to parents ultimately has an
economic effect comparable to that of aid given directly to the
schools attended by their children. It is also true, however, that,
under Minnesota's arrangement, public funds become available only
as a result of numerous private choices of individual parents of
school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to
private schools is of some importance: we said that "the fact that
aid is disbursed to parents, rather than to . . . schools," is a
material consideration in Establishment Clause analysis, albeit
"only one among many factors to be considered." 413 U.S. at 413 U. S. 781 .
It is noteworthy that all but one of our recent cases invalidating
state aid to parochial schools have involved the direct
transmission of assistance from the State to the schools
themselves. The exception, of course, was Nyquist, which,
as discussed previously, is distinguishable from this case on other
grounds. Where, as here, aid to parochial schools is available only
as a result of decisions of individual parents, no "imprimatur of
state approval," Widmar, supra, at 454 U. S. 274 ,
can be deemed to have been conferred on any particular religion, or
on religion generally.

															We find it useful, in the light of the foregoing characteristics
of § 290.09, subd. 22, to compare the attenuated financial benefits
flowing to parochial schools from the section to the evils against
which the Establishment Clause was designed to protect. These
dangers are well described by our statement that

															"'[w]hat is at stake as a matter of policy [in Establishment
Clause cases] is preventing that kind and degree of government
involvement in religious life that, as history Page 463 U. S. 400 teaches us, is apt to lead to strife and frequently strain a
political system to the breaking point.'" Nyquist, 413 U.S. at 413 U. S. 796 ,
quoting Walz v. Tax Comm'n, 397 U.S. at 397 U. S. 694 (opinion of Harlan, J.). It is important, however, 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 , 397 U. S.
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." Wolman, 433 U.S. at 433 U. S. 263 (POWELL, J., concurring in part, concurring in judgment in part,
and dissenting in part). The Establishment Clause, of course,
extends beyond prohibition of a state church or payment of state
funds to one or more churches. We do not think, however, that its
prohibition extends to the type of tax deduction established by
Minnesota. The historic purposes of the Clause simply do not
encompass the sort of attenuated financial benefit, ultimately
controlled by the private choices of individual parents, that
eventually flows to parochial schools from the neutrally available
tax benefit at issue in this case.

															Petitioners argue that, notwithstanding the facial neutrality of
§ 290.09, subd. 22, in application, the statute primarily benefits
religious institutions. [ Footnote
9 ] Petitioners rely, as they did Page 463 U. S. 401 below, on a statistical analysis of the type of persons claiming
the tax deduction. They contend that most parents of public school
children incur no tuition expenses, see Minn.Stat. §
120.06 (1982), and that other expenses deductible under § 290.09,
subd. 22, are negligible in value; moreover, they claim that 96% of
the children in private schools in 1978-1979 attended religiously
affiliated institutions. Because of all this, they reason, the bulk
of deductions taken under § 290.09, subd. 22, will be claimed by
parents of children in sectarian schools. Respondents reply that
petitioners have failed to consider the impact of deductions for
items such as transportation, summer school tuition, tuition paid
by parents whose children attended schools outside the school
districts in which they resided, rental or purchase costs for a
variety of equipment, and tuition for certain types of instruction
not ordinarily provided in public schools.

															We need not consider these contentions in detail. We would be
loath to adopt a rule grounding the constitutionality of a facially
neutral law on annual reports reciting the extent to which various
classes of private citizens claimed benefits under the law. Such an
approach would scarcely provide the certainty that this field
stands in need of, nor can we perceive principled standards by
which such statistical evidence might be evaluated. Moreover, the
fact that private persons fail in a particular year to claim the
tax relief to which they are entitled -- under a facially neutral
statute -- should be of little importance in determining the
constitutionality of the statute permitting such relief.

															Finally, private educational institutions, and parents paying
for their children to attend these schools, make special
contributions to the areas in which they operate.

															"Parochial Page 463 U. S. 402 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." Wolman, supra, at 433 U. S. 262 (POWELL, J., concurring in part, concurring in judgment in part,
and dissenting in part). If parents of children in private schools
choose to take especial advantage of the relief provided by §
290.09, subd. 22, it is no doubt due to the fact that they bear a
particularly great financial burden in educating their children.
More fundamentally, whatever unequal effect may be attributed to
the statutory classification can fairly be regarded as a rough
return for the benefits, discussed above, provided to the State and
all taxpayers by parents sending their children to parochial
schools. In the light of all this, we believe it wiser to decline
to engage in the type of empirical inquiry into those persons
benefited by state law which petitioners urge. [ Footnote 10 ]

															Thus, we hold that the Minnesota tax deduction for educational
expenses satisfies the primary effect inquiry of our Establishment
Clause cases. Page 463 U. S. 403 Turning to the third part of the Lemon inquiry, we have
no difficulty in concluding that the Minnesota statute does not
"excessively entangle" the State in religion. The only plausible
source of the "comprehensive, discriminating, and continuing state
surveillance," 403 U.S. at 403 U. S. 619 , necessary to run afoul of this standard
would lie in the fact that state officials must determine whether
particular textbooks qualify for a deduction. In making this
decision, state officials must disallow deductions taken for

															"instructional books and materials used in the teaching of
religious tenets, doctrines or worship, the purpose of which is to
inculcate such tenets, doctrines or worship."

															Minn.Stat. § 290.09, subd. 22 (1982). Making decisions such as
this does not differ substantially from making the types of
decisions approved in earlier opinions of this Court. In Board
of Education v. Allen, 392 U. S. 236 (1968), for example, the Court upheld the loan of secular textbooks
to parents or children attending nonpublic schools; though state
officials were required to determine whether particular books were
or were not secular, the system was held not to violate the
Establishment Clause. See also Wolman v. Walter, 433 U. S. 229 (1977); Meek v. Pittenger, 421 U.
S. 349 (1975). The same result follows in this case.
[ Footnote 11 ] Page 463 U. S. 404 For the foregoing reasons, the judgment of the Court of Appeals
is Affirmed. [ Footnote 1 ]

															Minnesota Stat. § 290.09, subd. 22 (1982), permits a taxpayer to
deduct from his or her computation of gross income the
following:

															"Tuition and transportation expense. The amount he has paid to
others, not to exceed $500 for each dependent in grades K to 6 and
$700 for each dependent in grades 7 to 12, for tuition, textbooks
and transportation of each dependent in attending an elementary or
secondary school situated in Minnesota, North Dakota, South Dakota,
Iowa, or Wisconsin, wherein a resident of this state may legally
fulfill the state's compulsory attendance laws, which is not
operated for profit, and which adheres to the provisions of the
Civil Rights Act of 1964 and chapter 363. As used in this
subdivision, 'textbooks' shall mean and include books and other
instructional materials and equipment used in elementary and
secondary schools in teaching only those subjects legally and
commonly taught in public elementary and secondary schools in this
state and shall not include instructional books and materials used
in the teaching of religious tenets, doctrines or worship, the
purpose of which is to inculcate such tenets, doctrines or worship,
nor shall it include such books or materials for, or transportation
to, extracurricular activities including sporting events, musical
or dramatic events, speech activities, driver's education, or
programs of a similar nature."

															[ Footnote 2 ]

															Both lower courts found that the statute permits deduction of a
range of educational expenses. The District Court found that
deductible expenses included:

															"1. Tuition in the ordinary sense."

															"2. Tuition to public school students who attend public schools
outside their residence school districts."

															"3. Certain summer school tuition."

															"4. Tuition charged by a school for slow learner private
tutoring services."

															"5. Tuition for instruction provided by an elementary or
secondary school to students who are physically unable to attend
classes at such school."

															"6. Tuition charged by a private tutor or by a school that is
not an elementary or secondary school if the instruction is
acceptable for credit in an elementary or secondary school."

															"7. Montessori School tuition for grades K through 12."

															"8. Tuition for driver education when it is part of the school
curriculum." 514 F.
Supp. 998 , 1000 (1981). The Court of Appeals concurred in this
finding.

															In addition, the District Court found that the statutory
deduction for "textbooks" included not only "secular textbooks" but
also:

															"1. Cost of tennis shoes and sweatsuits for physical
education."

															"2. Camera rental fees paid to the school for photography
classes."

															"3. Ice skates rental fee paid to the school."

															"4. Rental fee paid to the school for calculators for
mathematics classes."

															"5. Costs of home economics materials needed to meet minimum
requirements."

															"6. Costs of special metal or wood needed to meet minimum
requirements of shop classes."

															"7. Costs of supplies needed to meet minimum requirements of art
classes."

															"8. Rental fees paid to the school for musical instruments."

															"9. Cost of pencils and special notebooks required for
class." Ibid. The Court of Appeals accepted this finding.

															[ Footnote 3 ]

															In Lemon v. Kurtzman, the Court concluded that the
State's reimbursement of nonpublic schools for the cost of
teachers' salaries, textbooks, and instructional materials, and its
payment of a salary supplement to teachers in nonpublic schools,
resulted in excessive entanglement of church and state. In Levitt v. Committee for Public Education, we struck down
on Establishment Clause grounds a state program reimbursing
nonpublic schools for the cost of teacher-prepared examinations.
Finally, in Meek v. Pittenger and Wolman v.
Walter, we held unconstitutional a direct loan of
instructional materials to nonpublic schools, while upholding the
loan of textbooks to individual students.

															[ Footnote 4 ]

															Section 290.09 contains no express statements of legislative
purpose, and its legislative history offers few unambiguous
indications of actual intent. The absence of such evidence does not
affect our treatment of the statute.

															[ Footnote 5 ]

															Deductions for charitable contributions, allowed by Minnesota
law, Minn.Stat. § 290.21, subd. 3 (1982), include contributions to
religious institutions, and exemptions from property tax for
property used for charitable purposes under Minnesota law include
property used for wholly religious purposes, § 272.02. In each
case, it may be that religious institutions benefit very
substantially from the allowance of such deductions. The Court's
holding in Walz v. Tax Comm'n, 397 U.
S. 664 (1970), indicates, however, that this does not
require the conclusion that such provisions of a State's tax law
violate the Establishment Clause.

															[ Footnote 6 ]

															Our decision in Committee for Public Education v.
Nyquist, 413 U. S. 756 (1973), is not to the contrary on this point. We expressed
considerable doubt there that the "tax benefits" provided by New
York law properly could be regarded as parts of a genuine system of
tax laws. Plainly, the outright grants to low-income parents did
not take the form of ordinary tax benefits. As to the benefits
provided to middle-income parents, the Court said:

															"The amount of the deduction is unrelated to the amount of money
actually expended by any parent on tuition, but is calculated on
the basis of a formula contained in the statute. The formula is
apparently the product of a legislative attempt to assure that each
family would receive a carefully estimated net benefit, and that
the tax benefit would be comparable to, and compatible with, the
tuition grant for lower income families." Id. at 413 U. S. 790 (footnote omitted). Indeed, the question whether a program having
the elements of a "genuine tax deduction" would be constitutionally
acceptable was expressly reserved in Nyquist, supra, at 413 U. S. 790 ,
n. 49. While the economic consequences of the program in Nyquist and that in this case may be difficult to
distinguish, we have recognized on other occasions that "the form
of the [State's assistance to parochial schools must be examined]
for the light that it casts on the substance." Lemon v.
Kurtzman, 403 U.S. at 403 U. S. 614 . The fact that the Minnesota plan embodies
a "genuine tax deduction" is thus of some relevance, especially
given the traditional rule of deference accorded legislative
classifications in tax statutes.

															[ Footnote 7 ]

															Likewise, in Sloan v. Lemon, 413 U.
S. 825 , 413 U. S. 832 (1973), where we held that a Pennsylvania statute violated the
First Amendment, we emphasized that "the State [had] singled out a
class of its citizens for a special economic benefit." We also
observed in Widmar that "empirical evidence that religious
groups will dominate [the school's] open forum," 454 U.S. at 454 U. S. 275 ,
might be relevant to analysis under the Establishment Clause. We
address this infra at 463 U. S.
400 -402.

															[ Footnote 8 ]

															Our full statement was:

															" Allen and Everson differ from the present
litigation in a second important respect. In both cases, the class
of beneficiaries included all schoolchildren, those in public as
well as those in private schools. See
also Tilton v.
Richardson , [ 403 U.S.
672 (1971)], in which federal aid was made available to all
institutions of higher learning, and Walz v. Tax Comm'n,
supra, in which tax exemptions were accorded to all
educational and charitable nonprofit institutions. . . . Because of
the manner in which we have resolved the tuition grant issue, we
need not decide whether the significantly religious character of
the statute's beneficiaries might differentiate the present cases
from a case involving 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. . . . Thus, our decision today does not
compel . . . the conclusion that the educational assistance
provisions of the 'G. I. Bill,' 38 U.S.C. § 1651, impermissibly
advance religion in violation of the Establishment Clause."

															413 U.S. at 413 U. S.
782 -783, n. 38. See also id. at 413 U. S.
775 .

															[ Footnote 9 ]

															Petitioners cite a "Revenue Analysis" prepared in 1976 by the
Minnesota Department of Revenue, which states that

															"[o]nly those taxpayers having dependents in nonpublic
elementary or secondary schools are affected by this law, since
tuition, transportation and textbook expenses for public school
students are paid for by the school district."

															Brief for Petitioners 38. We fail to see the significance of the
report; it is no more than a capsule description of the tax
deduction provision. As discussed below, and as the lower courts
expressly found, the analysis is plainly mistaken, as a factual
matter, regarding the effect of § 290.09, subd. 22. Moreover,
several memoranda prepared by the Minnesota Department of Revenue
in 1979 -- stating that a number of specific expenses may be
deducted by parents with children in public school -- clearly
indicate that the summary discussion in the 1976 memorandum was not
intended as any comprehensive or binding agency determination.

															[ Footnote 10 ]

															Our conclusion is unaffected by the fact that § 290.09, subd.
22, permits deductions for amounts spent for textbooks and
transportation as well as tuition. In Everson v. Board of
Education, 330 U. S. 1 (1947),
we approved a statute reimbursing parents of all schoolchildren for the costs of transporting their children to
school. Doing so by means of a deduction, rather than a direct
grant, only serves to make the State's action less objectionable.
Likewise, in Board of Education v. Allen, 392 U.
S. 236 (1968), we approved state loans of textbooks to all schoolchildren; although we disapproved, in Meek
v. Pittenger, 421 U. S. 349 (1975), and Wolman v. Walter, 433 U.
S. 229 (1977), direct loans of instructional materials
to sectarian schools, we do not find those cases controlling.
First, they involved assistance provided to the schools themselves,
rather than tax benefits directed to individual parents, see
supra at 463 U. S. 399 .
Moreover, we think that state assistance for the rental of
calculators, see App. A18, ice skates, ibid., tennis shoes, ibid., and the like, scarcely poses the type
of dangers against which the Establishment Clause was intended to
guard.

															[ Footnote 11 ]

															No party to this litigation has urged that the Minnesota plan is
invalid because it runs afoul of the rather elusive inquiry,
subsumed under the third part of the Lemon test, whether
the Minnesota statute partakes of the "divisive political
potential" condemned in Lemon, 403 U.S. at 403 U. S. 622 .
The argument is advanced, however, by amici National
Committee for Public Education and Religious Liberty et
al. This variation of the "entanglement" test has been
interpreted differently in different cases. Compare Lemon v.
Kurtzman, 403 U.S. at 403 U. S. 622 -625, with id. at 403 U. S.
665 -666 (opinion of WHITE, J.); Meek v.
Pittenger, 421 U.S. at 421 U. S.
359 -362, with id. at 421 U. S.
374 -379 (BRENNAN, J., concurring in part and dissenting
in part). Since this aspect of the "entanglement" inquiry
originated with Lemon v. Kurtzman, supra, and the Court's
opinion there took pains to distinguish both Everson v. Board
of Education, supra, and Board of Education v. Allen,
supra, the Court in Lemon must have been referring to
a phenomenon which, although present in that case, would have been
absent in the two cases it distinguished.

															The Court's language in Lemon respecting political
divisiveness was made in the context of Pennsylvania and Rhode
Island statutes which provided for either direct payments of, or
reimbursement of, a proportion of teachers' salaries in parochial
schools. We think, in the light of the treatment of the point in
later cases discussed above, the language must be regarded as
confined to cases where direct financial subsidies are paid to
parochial schools or to teachers in parochial schools.

															JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.

															The Establishment Clause of the First Amendment prohibits a
State from subsidizing religious education, whether it does so
directly or indirectly. In my view, this principle of neutrality
forbids not only the tax benefits struck down in Committee for
Public Education v. Nyquist, 413 U. S. 756 (1973), but any tax benefit, including the tax deduction at issue
here, which subsidizes tuition payments to sectarian schools. I
also believe that the Establishment Clause prohibits the tax
deductions that Minnesota authorizes for the cost of books and
other instructional materials used for sectarian purposes. I The majority today does not question the continuing vitality of
this Court's decision in Nyquist. That decision
established that a State may not support religious education either
through direct grants to parochial schools or through financial aid
to parents of parochial school students. Id. at 413 U. S. 780 , 413 U. S.
785 -786. Nyquist also established that
financial aid to parents of students attending parochial schools is
no more permissible if it is provided in the form of a tax credit
than if provided in the form of cash payments. Id. at 413 U. S.
789 -791; see ante at 463 U. S.
396 -397, n. 6. Notwithstanding these accepted
principles, Page 463 U. S. 405 the Court today upholds a statute that provides a tax deduction
for the tuition charged by religious schools. The Court concludes
that the Minnesota statute is "vitally different" from the New York
statute at issue in Nyquist. Ante at 463 U. S. 398 .
As demonstrated below, there is no significant difference between
the two schemes. The Minnesota tax statute violates the
Establishment Clause for precisely the same reason as the statute
struck down in Nyquist: it has a direct and immediate
effect of advancing religion. A In calculating their net income for state income tax purposes,
Minnesota residents are permitted to deduct the cost of their
children's tuition, subject to a ceiling of $500 or $700 per child.
By taking this deduction, a taxpayer reduces his tax bill by a sum
equal to the amount of tuition multiplied by his rate of tax.
Although this tax benefit is available to any parents whose
children attend schools which charge tuition, the vast majority of
the taxpayers who are eligible to receive the benefit are parents
whose children attend religious schools. In the 1978-1979 school
year, 90,000 students were enrolled in nonpublic schools charging
tuition; over 95% of those students attended sectarian schools.
Although the statute also allows a deduction for the tuition
expenses of children attending public schools, Minnesota public
schools are generally prohibited by law from charging tuition.
Minn.Stat. § 120.06 (1982). Public schools may assess tuition
charges only for students accepted from outside the district. §
123.39, subd. 5. In the 1978-1979 school year, only 79 public
school students fell into this category. The parents of the
remaining 815,000 students who attended public schools were
ineligible to receive this tax benefit.

															Like the law involved in Nyquist, the Minnesota law can
be said to serve a secular purpose: promoting pluralism and
diversity among the State's public and nonpublic schools. But the
Establishment Clause requires more than that legislation have a
secular purpose. Nyquist, 413 U.S. at 413 U. S.
773 .

															"[T]he Page 463 U. S. 406 propriety of a legislature's purposes may not immunize from
further scrutiny a law which . . . has a primary effect that
advances religion." Id. at 413 U. S. 774 .
[ Footnote 2/1 ] Moreover, even if
one "'primary' effect [is] to promote some legitimate end under the
State's police power," the legislation is not "immune from further
examination to ascertain whether it also has the direct and
immediate effect of advancing religion." Id. at 413 U. S.
783 -784, n. 39. See, e.g., Wolman v. Walter, 433 U. S. 229 , 433 U. S.
248 -254 (1977); Meek v. Pittenger, 421 U.
S. 349 , 421 U. S.
364 -366 (1975)

															As we recognized in Nyquist, direct government
subsidization of parochial school tuition is impermissible because
"the effect of the aid is unmistakably to provide desired financial
support for nonpublic, sectarian institutions." 413 U.S. at 413 U. S. 783 .
"[A]id to the educational function of [parochial] schools . . .
necessarily results in aid to the sectarian school enterprise as a
whole" because "[t]he very purpose of many of those schools is to
provide an integrated secular and religious education." Meek v.
Pittenger, supra, at 421 U. S. 366 .
For this reason, aid to sectarian schools must be restricted to
ensure that it may be not used to further the religious mission of
those schools. See, e.g., Wolman v. Walter, supra, at 433 U. S.
250 -251. While "services such as police and fire
protection, sewage disposal, highways, and sidewalks," may be
provided to parochial schools in common with other institutions,
because this type of assistance is clearly " marked off from the
religious function'" of those schools, Nyquist, supra, at 413 U. S.
781 -782, quoting Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 18 (1947), unrestricted financial assistance, such as grants for the
maintenance and construction of parochial schools, may not
be Page 463 U. S. 407 provided. Nyquist, 413 U.S. at 413 U. S.
774 -780.

															"In the absence of an effective means of guaranteeing that the
state aid derived from public funds will be used exclusively for
secular, neutral, and nonideological purposes, it is clear from our
cases that direct aid in whatever form is invalid." Id. at 413 U. S.
780 .

															Indirect assistance in the form of financial aid to parents for
tuition payments is similarly impermissible, because it is not
"subject to . . . restrictions" which

															"'guarantee the separation between secular and religious
educational functions and . . . ensure that State financial aid
supports only the former.'" Id. at 413 U. S. 783 ,
quoting Lemon v. Kurtzman, 403 U.
S. 602 , 403 U. S. 613 (1971). By ensuring that parents will be reimbursed for tuition
payments they make, the Minnesota statute requires that taxpayers
in general pay for the cost of parochial education and extends a
financial "incentive to parents to send their children to sectarian
schools." Nyquist, 413 U.S. at 413 U. S. 786 .
As was true of the law struck down in Nyquist :

															"[I]t is precisely the function of [Minnesota's] law to provide
assistance to private schools, the great majority of which are
sectarian. By reimbursing parents for a portion of their tuition
bill, the State seeks to relieve their financial burdens
sufficiently to assure that they continue to have the option to
send their children to religion-oriented schools. And while the
other purposes for that aid -- to perpetuate a pluralistic
educational environment and to protect the fiscal integrity of
overburdened public schools -- are certainly unexceptionable, the
effect of the aid is unmistakably to provide desired financial
support for nonpublic, sectarian institutions." Id. at 413 U. S.
783 That parents receive a reduction of their tax liability, rather
than a direct reimbursement, is of no greater significance here
than it was in Nyquist. "[F]or purposes of determining
whether such aid has the effect of advancing religion," Page 463 U. S. 408 it makes no difference whether the qualifying "parent receives
an actual cash payment [or] is allowed to reduce . . . the sum he
would otherwise be obliged to pay over to the State." Id. at 413 U. S.
790 -791. It is equally irrelevant whether a reduction in
taxes takes the form of a tax "credit," a tax "modification," or a
tax "deduction." Id. at 413 U. S.
789 -790. What is of controlling significance is not the
form, but the "substantive impact" of the financial aid. Id. at 413 U. S.
786 .

															"[I]nsofar as such benefits render assistance to parents who
send their children to sectarian schools, their purpose
and inevitable effect are to aid and advance those religious
institutions." Id. at 793 (emphasis added). B The majority attempts to distinguish Nyquist by
pointing to two differences between the Minnesota tuition
assistance program and the program struck down in Nyquist. Neither of these distinctions can withstand scrutiny. 1 The majority first attempts to distinguish Nyquist on
the ground that Minnesota makes all parents eligible to deduct up
to $500 or $700 for each dependent, whereas the New York law
allowed a deduction only for parents whose children attended
nonpublic schools. Although Minnesota taxpayers who send their
children to local public schools may not deduct tuition expenses
because they incur none, they may deduct other expenses, such as
the cost of gym clothes, pencils, and notebooks, which are shared
by all parents of school-age children. This, in the majority's
view, distinguishes the Minnesota scheme from the law at issue in Nyquist. That the Minnesota statute makes some small benefit available to
all parents cannot alter the fact that the most substantial benefit
provided by the statute is available only to those parents who send
their children to schools that charge tuition. It is simply
undeniable that the single largest expense that may be deducted
under the Minnesota statute is tuition. The statute is little more
than a subsidy of tuition masquerading Page 463 U. S. 409 as a subsidy of general educational expenses. The other
deductible expenses are de minimis in comparison to
tuition expenses.

															Contrary to the majority's suggestion, ante at 463 U. S. 401 ,
the bulk of the tax benefits afforded by the Minnesota scheme are
enjoyed by parents of parochial school children not because parents
of public school children fail to claim deductions to which they
are entitled, but because the latter are simply unable to
claim the largest tax deduction that Minnesota authorizes.
[ Footnote 2/2 ] Fewer than 100 of
more than 900,000 school-age children in Minnesota attend public
schools that charge a general tuition. Of the total number of
taxpayers who are eligible for the tuition deduction, approximately
96% send their children to religious schools. [ Footnote 2/3 ] Parents who send their children to
free public schools are simply ineligible to obtain the full
benefit of the deduction except in the unlikely event that they buy
$700 worth of pencils, notebooks, and bus rides for their
school-age children. Yet parents who pay at least $700 in tuition
to nonpublic, sectarian schools can claim the full deduction even
if they incur no other educational expenses.

															That this deduction has a primary effect of promoting religion
can easily be determined without any resort to the type of
"statistical evidence" that the majority fears would lead to
constitutional uncertainty. Ibid. The only factual inquiry
necessary is the same as that employed in Nyquist Page 463 U. S. 410 and Sloan v. Lemon, 413 U. S. 825 (1973): whether the deduction permitted for tuition expenses
primarily benefits those who send their children to religious
schools. In Nyquist, we unequivocally rejected any
suggestion that, in determining the effect of a tax statute, this
Court should look exclusively to what the statute on its face
purports to do and ignore the actual operation of the challenged
provision. In determining the effect of the New York statute, we
emphasized that "virtually all" of the schools receiving direct
grants for maintenance and repair were Roman Catholic schools, 413
U.S. at 413 U. S. 774 ,
that reimbursements were given to parents "who send their children
to nonpublic schools, the bulk of which is concededly sectarian in
orientation," id. at 413 U. S. 780 ,
that "it is precisely the function of New York's law to provide
assistance to private schools, the great majority of which are
sectarian," id. at 413 U. S. 783 ,
and that "tax reductions authorized by this law flow primarily to
the parents of children attending sectarian, nonpublic schools." Id. at 413 U. S. 794 .
Similarly, in Sloan v. Lemon, supra, at 413 U. S. 830 ,
we considered important to our

															"consider[ation of] the new law's effect . . . [that]"

															"more than 90% of the children attending nonpublic schools in
the Commonwealth of Pennsylvania are enrolled in schools that are
controlled by religious organizations or that have the purpose of
propagating and promoting religious faith. [ Footnote 2/4 ] " Page 463 U. S. 411 In this case, it is undisputed that well over 90% of the
children attending tuition-charging schools in Minnesota are
enrolled in sectarian schools. History and experience likewise
instruct us that any generally available financial assistance for
elementary and secondary school tuition expenses mainly will
further religious education, because the majority of the schools
which charge tuition are sectarian. Cf. Nyquist, 413 U.S.
at 413 U. S. 785 ; Lemon v. Kurtzman, 403 U.S. at 403 U. S.
628 -630 (Douglas, J., concurring). Because Minnesota,
like every other State, is committed to providing free public
education, tax assistance for tuition payments inevitably redounds
to the benefit of nonpublic, sectarian schools and parents who send
their children to those schools. 2 The majority also asserts that the Minnesota statute is
distinguishable from the statute struck down in Nyquist in
another respect: the tax benefit available under Minnesota law is a
"genuine tax deduction," whereas the New York law provided a
benefit which, while nominally a deduction, also had features of a
"tax credit." Ante at 463 U. S. 396 ,
and n. 6. Under the Minnesota law, the amount of the tax benefit
varies directly with the amount of the expenditure. Under the New
York law, the amount of deduction was not dependent upon the amount
actually paid for tuition, but was a predetermined amount which
depended on the tax bracket of each taxpayer. The deduction was
designed to yield roughly the same amount of tax "forgiveness" for
each taxpayer.

															This is a distinction without a difference. Our prior decisions
have rejected the relevance of the majority's formalistic
distinction between tax deductions and the tax benefit at issue in Nyquist. See Byrne v. Public Funds for Public
Schools, 442 U.S. 907 (1979), summarily aff'g 590
F.2d 514 (CA3); Grit v. Wolman, 413 U.S. 901 (1973), summarily aff'g Kosydar v. Wolman, 353 F.
Supp. 744 (SD Ohio 1972). [ Footnote
2/5 ] Page 463 U. S. 412 The deduction afforded by Minnesota law was "designed to yield a
[tax benefit] in exchange for performing a specific act which the
State desires to encourage." Nyquist, supra, at 413 U. S. 789 .
Like the tax benefit held impermissible in Nyquist, the
tax deduction at issue here concededly was designed to "encourag[e]
desirable expenditures for educational purposes." Ante at 463 U. S. 396 .
Of equal importance, as the majority also concedes, the "economic
consequenc[e]" of these programs is the same, ante at 463 U. S. 397 ,
n. 6, for in each case, the "financial assistance provided to
parents ultimately has an economic effect comparable to that of aid
given directly to the schools." Ante at 463 U. S. 399 . See Walz v. Tax Comm'n, 397 U. S. 664 , 397 U. S. 699 (1970) (opinion of Harlan, J.). It was precisely the substantive
impact of the financial support, and not its particular form, that
rendered the programs in Nyquist and Sloan Page 463 U. S. 413 v. Lemon unconstitutional. See Nyquist, supra, at 413 U. S.
790 -791, 413 U. S. 794 ; Sloan v. Lemon, 413 U.S. at 413 U. S.
832 . C The majority incorrectly asserts that Minnesota's tax deduction
for tuition expenses

															"bears less resemblance to the arrangement struck down in Nyquist than it does to assistance programs upheld in our
prior decisions and those discussed with approval in Nyquist. " Ante at 463 U. S. 394 .
One might as well say that a tangerine bears less resemblance to an
orange than to an apple. The two cases relied on by the majority, Board of Education v. Allen, 392 U.
S. 236 (1968), and Everson v. Board of
Education, 330 U. S. 1 (1947),
are inapposite today for precisely the same reasons that they were
inapposite in Nyquist. We distinguished these cases in Nyquist, supra, at 413 U. S.
781 -782, and again in Sloan v. Lemon, supra, at 413 U. S. 832 .
Financial assistance for tuition payments has a consequence
that

															"is quite unlike the sort of 'indirect' and 'incidental'
benefits that flowed to sectarian schools from programs aiding all
parents by supplying bus transportation and secular textbooks for
their children. Such benefits were carefully restricted to the
purely secular side of church-affiliated institutions, and
provided no special aid for those who had chosen to support
religious schools. Yet such aid approached the 'verge' of the
constitutionally impermissible." Sloan v. Lemon, supra, at 413 U. S. 832 (latter emphasis added).

															As previously noted, supra, at 463 U. S. 409 ,
the Minnesota tuition tax deduction is not available to all parents, but only to parents whose children attend
schools that charge tuition, which are comprised almost entirely of
sectarian schools. More importantly, the assistance that flows to
parochial schools as a result of the tax benefit is not restricted,
and cannot be restricted, to the secular functions of those
schools. Page 463 U. S. 414 II In my view, Minnesota's tax deduction for the cost of textbooks
and other instructional materials is also constitutionally infirm.
The majority is simply mistaken in concluding that a tax deduction,
unlike a tax credit or a direct grant to parents, promotes
religious education in a manner that is only "attenuated." Ante at 463 U. S. 399 , 463 U. S. 400 .
A tax deduction has a primary effect that advances religion if it
is provided to offset expenditures which are not restricted to the
secular activities of parochial schools.

															The instructional materials which are subsidized by the
Minnesota tax deduction plainly may be used to inculcate religious
values and belief. In Meek v. Pittenger, 421 U.S. at 421 U. S. 366 ,
we held that even the use of "wholly neutral, secular instructional
material and equipment" by church-related schools contributes to
religious instruction because

															"'[t]he secular education those schools provide goes hand in
hand with the religious mission that is the only reason for the
schools' existence.'"

															In Wolman v. Walter, 433 U.S. at 433 U. S.
249 -250, we concluded that precisely the same
impermissible effect results when the instructional materials are
loaned to the pupil or his parent, rather than directly to the
schools. We stated that "it would exalt form over substance if this
distinction were found to justify a result different from that in Meek. " Id. at 433 U. S. 250 .
It follows that a tax deduction to offset the cost of purchasing
instructional materials for use in sectarian schools, like a loan
of such materials to parents, "necessarily results in aid to the
sectarian school enterprise as a whole," and is therefore a
"substantial advancement of religious activity" that "constitutes
an impermissible establishment of religion." Meek v. Pittenger,
supra, at 421 U. S.
366 .

															There is no reason to treat Minnesota's tax deduction for
textbooks any differently. Secular textbooks, like other secular
instructional materials, contribute to the religious mission of the
parochial schools that use those books. Although this Court upheld
the loan of secular textbooks to religious Page 463 U. S. 415 schools in Board of Education v. Allen, supra, the
Court believed at that time that it lacked sufficient experience to
determine "based solely on judicial notice" that

															"the processes of secular and religious training are so
intertwined that secular textbooks furnished to students by the
public [will always be] instrumental in the teaching of
religion."

															392 U.S. at 392 U. S. 248 .
This basis for distinguishing secular instructional materials and
secular textbooks is simply untenable, and is inconsistent with
many of our more recent decisions concerning state aid to parochial
schools. See Wolman v. Walter, 433 U.S. at 433 U. S.
257 -258 (MARSHALL, J., concurring in part and dissenting
in part); id. at 433 U. S.
264 -266 (STEVENS, J., concurring in part and dissenting
in part); Meek v. Pittenger, supra, at 421 U. S. 378 (BRENNAN, J., concurring in part and dissenting in part).

															In any event, the Court's assumption in Allen that the
textbooks at issue there might be used only for secular education
was based on the fact that those very books had been chosen by the
State for use in the public schools. 392 U.S. at 392 U. S.
244 -245. In contrast, the Minnesota statute does not
limit the tax deduction to those books which the State has approved
for use in public schools. Rather, it permits a deduction for books
that are chosen by the parochial schools themselves. Indeed, under
the Minnesota statutory scheme, textbooks chosen by parochial
schools but not used by public schools are likely to be precisely
the ones purchased by parents for their children's use. Like the
law upheld in Board of Education v. Allen, supra, Minn.Stat. §§ 123.932 and 123.933 (1982) authorize the State Board
of Education to provide textbooks used in public schools to
nonpublic school students. Parents have little reason to purchase
textbooks that can be borrowed under this provision. [ Footnote 2/6 ] Page 463 U. S. 416 III There can be little doubt that the State of Minnesota intended
to provide, and has provided, "[s]ubstantial aid to the educational
function of [church-related] schools," and that the tax deduction
for tuition and other educational expenses "necessarily results in
aid to the sectarian school enterprise as a whole." Meek v.
Pittenger, supra, at 421 U. S. 366 .
It is beside the point that the State may have legitimate secular
reasons for providing such aid. In focusing upon the contributions
made by church-related schools, the majority has lost sight of the
issue before us in this case.

															"The sole question is whether state aid to these schools can be
squared with the dictates of the Religion Clauses. Under our
system, the choice has been made that government is to be entirely
excluded from the area of religious instruction. . . . The
Constitution decrees that religion must be a private matter for the
individual, the family, and the institutions of private choice, and
that, while some involvement and entanglement are inevitable, lines
must be drawn." Lemon v. Kurtzman, 403 U.S. at 403 U. S.
625 .

															In my view, the lines drawn in Nyquist were drawn on a
reasoned basis, with appropriate regard for the principles of
neutrality embodied by the Establishment Clause. I do not believe
that the same can be said of the lines drawn by the majority today.
For the first time, the Court has upheld financial support for
religious schools without any reason at all to assume that the
support will be restricted to the secular functions of those
schools and will not be used to support religious Page 463 U. S. 417 instruction. This result is flatly at odds with the fundamental
principle that a State may provide no financial support whatsoever
to promote religion. As the Court stated in Everson, 330
U.S. at 330 U. S. 16 , and
has often repeated, see, e.g., Meek v. Pittenger, 421 U.S.
at 421 U. S. 359 ; Nyquist, 413 U.S. at 413 U. S.
780 :

															"No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice
religion."

															I dissent.

															[ Footnote 2/1 ]

															As we noted in Nyquist, it is "firmly established" that
a statute may impermissibly advance religion "even though it does
not aid one religion more than another, but merely benefits all
religions alike." 413 U.S. at 413 U. S. 771 . See, e.g., Wolman v. Walter, 433 U.
S. 229 , 433 U. S.
248 -254 (1977); Meek v. Pittenger, 421 U.
S. 349 , 421 U. S.
364 -366 (1975).

															[ Footnote 2/2 ]

															Even if the Minnesota statute allowed parents of public school
students to deduct expenses that were likely to be equivalent to
the tuition expenses of private school students, it would still be
unconstitutional. Insofar as the Minnesota statute provides a
deduction for parochial school tuition, it provides a benefit to
parochial schools that furthers the religious mission of those
schools. Nyquist makes clear that the State may not
provide any financial assistance to parochial schools unless that
assistance is limited to secular uses. 413 U.S. at 413 U. S.
780 -785.

															[ Footnote 2/3 ]

															Indeed, in this respect the Minnesota statute has an even
greater tendency to promote religious education than the New York
statute struck down in Nyquist, since the percentage of
private schools that are nonsectarian is far greater in New York
than in Minnesota.

															[ Footnote 2/4 ]

															Similarly, in Meek v. Pittenger, 421 U.S. at 421 U. S. 363 ,
we held that

															"the direct loan of instructional material and equipment has the
unconstitutional primary effect of advancing religion because of
the predominantly religious character of the schools benefiting
from the Act." See id. at 421 U. S. 366 .
We relied on a finding that,

															"of the 1,320 nonpublic schools in Pennsylvania that . . .
qualify for aid under Act 195, more than 75% are church-related or
religiously affiliated educational institutions." Id. at 421 U. S. 364 .
This could not possibly have been ascertained from the text of the
facially neutral statute, but could only be determined on the basis
of an "empirical inquiry." And in Wolman v. Walter, 433
U.S. at 433 U. S. 234 ,
the Court relied on a stipulation that

															"during the 1974-1975 school year, there were 720 chartered
nonpublic schools in Ohio. Of these, all but 29 were sectarian.
More than 96% of the nonpublic enrollment attended sectarian
schools, and more than 92% attended Catholic schools."

															[ Footnote 2/5 ]

															In Byrne v. Public Funds for Public Schools, we
summarily affirmed a decision striking down a program of tax
deductions. The amount of deduction was fixed at $1,000 for each
dependent attending a tuition-charging nonpublic school. This
decision makes clear that the constitutionality of a tax benefit
does not turn on whether the benefit is in the form of a deduction
from gross income or a tax "credit."

															In Grit v. Wolman, we summarily affirmed a decision
invalidating a system of tax credits for nonpublic school parents
in which the amount of the credit depended on the amount of tuition
paid. This decision demonstrates that it is irrelevant whether the
amount of a tax benefit is proportionate to the amount of tuition
paid or is simply an arbitrary sum. The Court's affirmance of the
result in each of these cases was a "decision on the merits,
entitled to precedential weight." Meek v. Pittenger,
supra, at 421 U. S.
366 -367, n. 16.

															The deduction at issue in this case does differ from the tax
benefits in Nyquist and our other prior cases in one
respect: by its very nature, the deduction embodies an inherent
limit on the extent to which a State may subsidize religious
education. Unlike a tax credit, which may wholly subsidize the cost
of religious education if the size of the credit is sufficiently
large, or a tax deduction of an arbitrary sum, a deduction of
tuition payments from adjusted gross income can never "provide a
basis for . . . complete subsidization of . . . religious
schools." Nyquist, 413 U.S. at 413 U. S. 782 ,
n. 38 (emphasis in original). See also id. at 413 U. S. 779 ,
787, n. 44. Nyquist made clear, however, that absolutely
no subsidization is permissible unless it is restricted to the
purely secular functions of those schools. See, e.g., id. at 413 U. S.
777 -779, 413 U. S.
787 -788.

															[ Footnote 2/6 ]

															For similar reasons, I would hold that the deduction for
transportation expenses is constitutional only insofar as it
relates to the costs of traveling between home and school. See
Wolman v. Walter, 433 U.S. at 433 U. S.
252 -255 (reimbursement of nonpublic schools for field
trip transportation impermissibly fosters religion because the
nonpublic schools control the timing, frequency, and destination of
the trips, which, for sectarian schools, are an integral part of
the sectarian education). I would therefore reverse the judgment of
the Court of Appeals and remand for a determination whether the
insignificant deductions that remain -- e.g., deductions
for transportation between home and school and for pencils and
notebooks -- are severable from the other deductions.

Summary: The Supreme Court upheld a Minnesota statute allowing taxpayers to deduct expenses for tuition, textbooks, and transportation for their children attending elementary or secondary school, including parochial schools. The Court found that the statute had a secular purpose of ensuring a well-educated citizenry and did not have the primary effect of advancing religion. The deduction was neutral and available to all parents, regardless of their children's school choice. The Court distinguished this case from previous cases striking down tax benefits for parochial schools, as the deduction in this case was not a direct subsidy and had inherent limits on the state's ability to subsidize religious education.