is another important collateral characteristic.
If the concern was divertibility
, the government could disallow all forms of aid no matter how small or seemingly meaningless.
Then, starting in 1983, concern with divertibility
was gradually lost in favor of approving aid in amounts unlikely to afford substantial benefits to religious schools, when offered evenhandedly without regard to a recipient's religious character, and when channeled to a religious institution only by the genuinely free choice of some private individual.
But the Court has rejected claims in Zobrest, Witters, and Mitchell that divertibility
necessarily renders aid unconstitutional.
99) Noting that the Court had already expressed a lack of concern for divertibility in Witters v.
First, the plurality noted its relevance was "in sharp decline," (105) as the Court had not relied on divertibility as a factor in rejecting an aid program since 1985.
69) In part, he did so because as long as the aid money can be deemed private--as long as it creates no "impermissible incentive" to choose private school--then it does not matter whether the purposes it serves are, because of divertibility, also private: "[A]ny use of that aid to indoctrinate cannot be attributed to the government and is thus not of constitutional concern.
the divertibility criterion]," the court does not "need to resolve the distinction's constitutional status today, for, as we have already noted, [the Chapter Two program] itself requires that aid may only be supplemental.
Justice O'Connor's observation of the plurality's rejection of the divertibility
of funds as a constitutional issue undoubtedly is based on a comment in the plurality opinion that "the evidence of actual diversion and the weakness of the safeguards against actual diversion are not relevant to the constitutional inquiry.
The Mitchell plurality even refused to embrace the concept that federal funds easily diverted to sectarian use should be closely scrutinized under the Establishment Clause, saying that "[t]he issue is not divertibility
of aid but rather whether the aid itself has an impermissible content.
at 2565 (rejecting dissent's divertibility
The other five Justices did not share this view, and expressed substantial concern about the divertibility