Part One
The following is an Amicus Curiae legal brief submitted to the 6th Court of Appeals with respect to a case focusing on the legality of the 'Ohio Pilot School Choice Scholarship Program'. The 6th Court of Appeals ruled against the scholarship program, and that decision has been appealed with arguments for and against the decision having been heard by the U.S. Supreme Court on February 20, 2002.
Byline: Professor Nicole S. Garnett, Paul D. Clement, Professor Richard W. Garnett, King & Spalding, Notre Dame Law School 1730 Pennsylvania Ave., N.W. Notre Dame, IN 46556 Washington, DC 20006
Counsel of Record
Attorneys for Amici Curiae,
Center for Education Reform, et al.
CER Amicus Curiae Brief In Support of
Ohio Pilot School Choice Scholarship Program April 2000
Statement and Summary of Case
INTEREST OF AMICI CURIAE
The Center for Education Reform is an independent non-profit organization founded in 1993 to advance substantive reforms in public education. The Center for Education Reform, and amici, American Education Reform Foundation, American Legislative Exchange Council, Center for New Black Leadership, Children First CEO America, Education Leaders Council, Empower the People, I Have a Dream 末 DC, Institute for Transformation and Learning, Floridians for School Choice, Maine School Choice Coalition, Milton and Rose Friedman Foundation, Minnesota Business Partnership, Texas Coalition for Parental Choice in Education, and Texas Justice Foundation, are dedicated to promoting the best possible education for America's children by enabling parents to choose from a wide variety of alternatives, including high-quality parochial schools. All parties have consented to the filing of this brief. See Fed. R. App. Pro. 29(a).
STATEMENT OF THE CASE
The Ohio Legislature responded courageously in 1995 to "an educational crisis" in Cleveland's public schools. Simmons-Harris v. Zelman, 72 F. Supp. 2d 834 (N.D. Ohio 1999). Unwilling to sit idly by while failing schools slowly but surely trampled the hopes of Ohio's most disadvantaged children, Ohio's lawmakers enacted the "Ohio Pilot Scholarship Program."
That Program, among other things, provided parents with meaningful educational choices and students with educational opportunities. In the hope that the Program would succeed where so many half-measures have failed, Ohio's legislators empowered parents to use Program scholarships to send their children to qualified public, private, and religious schools.
Opponents of educational choice seized on this failure to exclude religious schools and urged the Ohio courts to strike down the Program as an unconstitutional "establishment" of religion.
The Supreme Court of Ohio rejected this argument. Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999). It emphasized, among other things, that the Program was religion-neutral, even though "[m]ost of [its] beneficiaries . . . attend [religious] schools," because it "does not define its recipients by reference to religion." Id. at 210, 209. The court also held that the Program's selection criteria did not "creat[e] a financial incentive to undertake religious indoctrination" because its benefits were "made available to both religious and secular beneficiaries on a nondiscriminatory basis." Id.
Thus, the court concluded that the Program satisfied the requirements of Lemon v. Kurtzman, 403 U.S. 602 (1971). In so holding, the court employed substantially the same reasoning, to reach substantially the same result, as had the Wisconsin Supreme Court in Jackson v. Benson, 578 N.W.2d 602 (Wis.) (rejecting Establishment Clause challenge to Milwaukee's ground breaking school-choice program), cert. denied, 525 U.S. 997 (1998).
The Ohio Supreme Court also concluded, though, that the original statute conflicted with certain technical provisions of the Ohio Constitution. The Ohio Legislature promptly re-enacted the statute to cure this technical defect.
This time the Program's opponents rushed to federal court and asserted that, notwithstanding the Ohio Supreme Court's decision, the Program "establishes" religion. Then, only days before the beginning of the new school year, the District Court enjoined the Program.
Three days later, after a massive public outcry concerning the precipitous ruling's effect on Cleveland's children, the court modified its order slightly, and set the case for discovery and trial. On November 5, the United States Supreme Court stayed the District Court's preliminary injunction, Zelman v. Simmons-Harris, 120 S. Ct. 443 (1999), thereby implying strongly its disagreement with the lower court's First Amendment analysis.
Then, the District Court disregarded both the considered judgment of the Ohio Supreme Court and the clear implications of the United States Supreme Court's stay and struck down the re-enacted Program. In marked contrast to the Ohio Supreme Court, the District Court strained to base its decision on Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973). In so doing, the court repeatedly emphasized that 82% of participating schools are "church-affiliated" 末 in large part because "no public schools [have] registered for the program," despite their ability to do so 末 and 96% of the students receiving scholarships for the 1999-2000 school year have selected "sectarian" schools. 72 F.Supp.2d at 836.
The District Court correctly observed that: "Where aid is provided under a neutral program and only flows to religious schools as a result of the genuine and independent choices of beneficiaries, a challenged program will not be found to result in government inculcation of religious beliefs." Id. at 863. Nonetheless, the District Court erroneously concluded that the Cleveland Program was neither neutral nor involved genuinely independent choices by students and parents.
First, the District Court concluded "that the Voucher Program is not neutral." Id. at 865. The court believed that the public schools' failure to participate somehow distinguished the Cleveland Program from other programs upheld since Nyquist that provided indirect benefits to all schools, public and non-public, religious and secular. See id. at 854, 855, 859, 864. In addition, the District Court repeatedly invoked the fact that 82% of participating schools had a religious affiliation to obscure the Program's neutrality. See id. at 837, 847, 857, 863, 864. "Because the vast majority of schools participating in the Voucher Program are sectarian in nature, the Program does not make aid available without regard to the nature of the institutions benefited. " Id. at 864.
More remarkably, the District Court also used this 82% figure to conclude that parents lacked a genuine choice between religious and secular schools. See id. at 855-56, 857, 859, 862, 863, 864. The court suggested that the prevalence of religious schools somehow created an incentive to choose a religious school. See id. at 860, 865. The District Court therefore permanently enjoined the school-choice Program, but stayed its order pending this Court's review. Id. at 865. This appeal followed.
INTRODUCTION AND SUMMARY OF ARGUMENT
Nearly 50 years ago, in Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court promised to all "equality of educational opportunity" and "full partnership in the American experiment." Joseph P. Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society 3 (1999). The Court emphasized that education "is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Brown, 347 U.S. at 493.
As many scholars have recognized, and as far too many economically disadvantaged parents are painfully aware, many of our urban public schools fail to live up to the promise of Brown. Too many poor children are consigned, and their parents resigned, to unsafe and under performing schools. But Cleveland's school-choice program empowers hundreds of parents, who likely would not otherwise have the choice, to decide whether to send their children to public or private, secular or religious, schools.
The Program provides choice; it does not "establish" religion. Using entirely neutral and secular criteria, the State has expanded the pool of schools 末 public, private, and religious 末 from which the parents of Cleveland school children can choose.
Individual parents'' free and independent choices 末 not government decisions 末 drive the Program. The Constitution permits 末 indeed, it values 末 such choices.
Sometimes religious conviction will animate these choices. But that does not render them unconstitutional. Indeed, choices that are made possible only through government programs and benefits are often motivated by religious concerns. A young G.I. or student-loan recipient might choose to study theology; a Medicaid recipient might choose a religious hospital; or a state employee might decide that, with this year's performance bonus, he can finally afford to send his child to yeshiva. In all these cases, money that was once in the hands of the government ends up 末 via religiously- motivated, but still private, choices 末 being put to a religious use. All these choices are permitted by the Constitution. See Agostini v. Felton, 521 U.S. 203, 225-26 (1997).
The District Court lost sight of these basic principles. When individuals use resources disbursed according to religion-neutral criteria to purchase services from a religious institution (e.g., education from a school), these private choices do not unconstitutionally establish religion.
The District Court overlooked these constitutional principles by its misguided focus on the numbers. In the District Court's view, too many religious schools participated and too many parents chose religious schools. However, the Supreme Court already has rejected this "by the numbers" approach. See Mueller v. Allen, 463 U.S. 388 (1983).
The dignity of individual parents'' choices about religion, and about the education and upbringing of children, is at the core of the liberty guaranteed by the United States Constitution. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). And so, not only is Ohio's scholarship program consistent with the First Amendment's Religion Clauses, but had the Ohio Legislature barred religious schools from participating in the program, that exclusion itself would have violated the Constitution.
Education reform is perhaps the Nation's most vital task, and the court below not only has hamstrung one State's efforts to do better by students, but also, through its misreading of the Constitution, has clouded the future of reform generally. The school-choice program at issue here creates more freedom for hundreds of parents and more opportunities for hundreds of children. The First Amendment permits Ohio to pursue Brown's promise of equal educational opportunity through equal treatment of religious schools.
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