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The second collateral characteristic studied is "divertibility," or the ability of the firm to divert an asset (e.g., equipment) to alternative uses or reduce maintenance, which can result in lower recovery values.
Asset divertibility 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.
A concern for divertibility, as opposed to improper content, is misplaced not only because it fails to explain why the sort of aid that we have allowed is permissible, but also because it is boundless--enveloping all aid, no matter how trivial--and thus has only the most attenuated (if any) link to any realistic concern for preventing an "establishment of religion." (102) The preceding analysis of the Tilton trilogy suggests that, in rejecting any concern for divertibility, the Mitchell plurality thereby did away with any possible rationale for applying the pervasively sectarian test.
In Mitchell, the most recent Supreme Court parochial-school aid case, the Court upheld federal instructional-equipment aid for parochial schools.(68) Justice Thomas, writing for the plurality, convincingly dismissed the criterion of relative permeability to religious influence--or what he called "divertibility"--as a way of explaining what kind of aid the Court has upheld and what it has struck down.(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."(70)
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...." O'Connor noted that in Bowen v.
The other five Justices did not share this view, and expressed substantial concern about the divertibility of aid.
at 2565 (rejecting dissent's divertibility rule); id.
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."(126) Accordingly, once the content of the aid passes muster under the Establishment Clause, the plurality would apparently immunize the law from further Establishment Clause attack.