Mitchell v. Helms — O'Connor, J., Concurring

Summary

Justice O’Connor, joined by Justice Breyer, concurred in the judgment because she concluded that the Title II, or Chapter 2, school-aid program was constitutional under the framework previously used for neutral government aid. She rejected the plurality’s broader view that neutrality alone is sufficient and maintained that actual diversion, safeguards, and other factual characteristics remain relevant, although the limited evidence of diversion here was de minimis. Justice Souter, joined by Justices Stevens and Ginsburg, dissented, arguing that the program was unconstitutional because neutrality is not dispositive and the aid was divertible and actually diverted to religious purposes.