Part Two
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
The Argument
The United States Supreme Court's Establishment Clause cases stress two bedrock principles: First, the Supreme Court's religion cases uniformly have stressed the importance of government neutrality toward religion. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 18 (1947); Board of Educ. v. Allen, 392 U.S. 236, 243 (1968). Second, and more recently, the Supreme Court has emphasized the importance of intervening choice. Although programs involving direct funding of religious institutions do not necessarily violate the Establishment Clause, see, e.g., Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980), when schools receive funds only as a result of the independent, intervening decisions of students and parents, Establishment Clause problems are avoided. See Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Dept. of Servs. for the Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993); Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995); Agostini, supra.
In light of these two principles, the Cleveland Program passes all the Supreme Court's Establishment Clause tests. When a program provides neutral benefits to parents and students and aid flows only as a result of their intervening choices, then the program's purpose and primary effect under Lemon are those served by providing a benefit directly to students. Any benefit indirectly received by religious schools is secondary.
In Witters, for example, the vocational aid program's purpose and effect were to provide vocational education to handicapped students. Any aid that ultimately flowed to religious schools because of individual student choices was incidental and secondary. See 474 U.S. at 490-91 (Powell, J., concurring).
Moreover, when aid flows to religious schools only as a consequence of the choices of students and parents, there is no danger that a reasonable observer would perceive any government endorsement of religion. As the Supreme Court concluded in Witters: "Nor does the mere circumstance that petitioner has chosen to use neutrally available state aid to help pay for his religious education confer any message of state endorsement of religion." 474 U.S. at 488-89; see also id. at 493 (O'Connor, J., concurring) ("The aid to religion here is the result of petitioner's private choice. No reasonable observer is likely to draw from the facts before us an inference that the State itself is endorsing a religious practice or belief.").
Finally, the private choice that is the hallmark of the Cleveland Program is the antithesis of coercion. The Program offers choice, not compulsion. Accordingly, the Cleveland Program does not raise any problem of state coercion. See, e.g., Lee v. Weisman, 505 U.S. 577 (1992).
Remarkably, the District Court recognized the importance of the principles of neutrality and choice, only to ignore them in favor of a misguided focus on the numbers. The Supreme Court has rejected such an approach, and with good reason.
A statute that provides benefits to parents on a neutral basis does not violate the Establishment Clause merely because a certain percentage choose to send their children to religious schools.
B. As A Neutral Statute Providing Parents With Genuine Choices, The Cleveland Program Fully Complies With The Establishment Clause.
1. The Cleveland Program Is Neutral.
The Cleveland Program is neutral not just between religious and secular schools, but between public and non-public schools as well. The State made public schools from neighboring areas eligible to participate. Of course, the State did not force any schools to participate in the Program. To do so would raise a host of problems, both legal and practical.
To date, no eligible public school has joined the Cleveland Program. The District Court seized upon this fact to disregard the Program's neutrality, even though it reflects the suburban schools' reticence, not the Program's preference for religion. 72 F.Supp.2d at 853-54. "Because analysis of the Program's constitutionality requires consideration of where the challenged aid actually flows, the court is obligated to consider only registered schools, not eligible schools." Id. at 854. This analysis gets it exactly backwards.
The key to the Establishment Clause's commitment to neutrality is the eligibility of public schools to participate 末 not the extent to which they actually do participate. The Supreme Court made this point crystal clear in Mueller.
The Minnesota statute upheld in Mueller provided a tax deduction for actual educational expenses incurred by parents for such things as tuition and textbooks. See 463 U.S. at 391.
As the dissenters emphasized, parents of public-school students generally do not incur any significant educational expenses. See id. at 405, 408-09 (Marshall, J., dissenting).
Nonetheless, the majority emphasized the law's facial neutrality 末 that the "deduction is available for educational expenses incurred by all parents," id. at 397 (emphasis added) 末 and refused to allow its constitutionality to turn on, to borrow the District Court's phrase, "where the challenged aid actually flows." 72 F.Supp.2d at 854. As the Court concluded: "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." Mueller, 463 U.S. at 401; accord Agostini, 521 U.S. at 229-30.
Indeed, the Cleveland Program is even more obviously neutral than the deductions upheld in Mueller. Under the Cleveland Program, there is no question that public schools are eligible and would receive the exact same benefits as participating private schools. Likewise, parents would receive the same benefit whether they chose a participating public or private school. Public schools simply have declined to participate.
By contrast, the Minnesota statute involved more than just a failure of parents of public-school children to take advantage of an available deduction. As the dissenters emphasized, the Minnesota statute provided inherently less valuable benefits to parents of public-school children because they did not incur the single largest educational expense, tuition. Id. at 409 (Marshall, J., dissenting). Nonetheless, the Court upheld the statute because of its facial neutrality. The Cleveland Program's neutrality follows, a fortiori.
Moreover, the Supreme Court's refusal to analyze "where the challenged aid actually flows" reflects more than a reluctance to engage in empirical analysis. It reflects the fundamental requirement of constitutional law that only state action can violate the Establishment Clause. See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 767 (1995) ("By its terms [the Establishment] Clause applies only to the words and acts of government.") (plurality opinion) (emphasis in original).
Here, the relevant state action was the State's creation of a Program with neutral eligibility requirements. By contrast, the actions of individual schools in deciding whether to participate and parents' choices among participating schools are not state action.
The Court recognized as much in Mueller. "[T]he fact that private persons fail in a particular year to claim the tax relief to which they are entitled 末 under a facially neutral statute 末 should be of little importance in determining the constitutionality of the statute permitting such relief." Mueller, 463 U.S. at 401.
The proper focus was the state action "permitting" deductions on a neutral basis, not the extent to which private citizens took advantage of the deductions. For the same reasons, the constitutionality of the Cleveland Program turns on the statute's neutral eligibility standards, not on the decisions of schools or parents whether to participate.
The court below ignored not only the Program's facial neutrality, but also the other relevant choices open to parents. Parents in Cleveland can choose among a number of different educational options, including local schools, community schools, and magnet schools. The Cleveland Program simply rounded out the available educational options by empowering parents to send their children to eligible private schools and neighboring public school districts.
The District Court dismissed these other programs as legally irrelevant and focused only on the specific program challenged by appellees. See 72 F.Supp.2d at 861-83.
Nothing in the Establishment Clause or applicable precedents justifies such an analytical straitjacket. For example, the Supreme Court repeatedly has upheld the provision of free textbooks to private-school students. See Allen, supra; Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977).
In both Meek and Wolman, the challenged statute authorized the provision of textbooks for private-school students without directly addressing textbooks in public schools. Nonetheless, in both cases, the Supreme Court read the challenged provision in conjunction with other provisions that furnished free textbooks to public-school students. See Meek, 421 U.S. at 360 n.8; Wolman, 433 U.S. at 238 n.6.
Needless to say, had the Supreme Court employed the District Court's judicial blinders approach, it would have struck down both private-school textbook provisions. There is no greater basis for ignoring the options available to parents within the Cleveland public schools than for ignoring that public-school students receive free textbooks.
2. The Cleveland Program Permits Parents To Make Meaningful Educational Choices And Any Aid That Flows To Schools Reflects Those Genuinely Independent Choices.
The Cleveland Program permits parents to make meaningful choices among public schools, private religious schools, and private secular schools. The District Court reached a contrary conclusion based on the kind of empirical analysis the Supreme Court rejected in Mueller.
According to the District Court, because 82% of participating private schools were religious, parents lacked a meaningful or genuine choice to attend a non-religious school. This analysis flies in the face of both precedent and reality.
In Mueller, the majority expressly held that the constitutionality of a facially neutral policy does not turn on an empirical analysis of "where the challenged aid actually flows." The Supreme Court reaffirmed this principle in Agostini: "Nor are we willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid." 521 U.S. at 229.
The District Court attempted to distinguish Mueller by suggesting that analyzing "the number of participating religious schools," is different than analyzing "the number of students who have availed themselves of a particular option." 72 F.Supp.2d at 852 (emphases added). This is no distinction at all.
First, the dissenters in Mueller did not rely exclusively, or even primarily, on an analysis of students, but on "[h]istory and experience" which instructed that "the majority of the schools which charge tuition are sectarian." 463 U.S. at 411 (Marshall, J., dissenting); see also id. at 409 n.3 (Marshall, J., dissenting) (noting that "the percentage of private schools that are nonsectarian is far greater in New York than in Minnesota"). While purporting to follow Mueller, the District Court simply adopted the Mueller dissent.
The Mueller majority rejected the exact same kind of school-based analysis proposed by the District Court. See id. at 401; see also Witters, 474 U.S. at 492 n.3 (Powell, J., concurring) (noting that the Court upheld the Minnesota statute even though "[o]ver 90% of the tax benefits in Mueller ultimately flowed to religious institutions").
Indeed, the Mueller majority could hardly have concluded otherwise. The only arguable relevance of the analysis of students in Mueller was to demonstrate that religious schools benefited disproportionately.
The Minnesota statute, like the Cleveland Program, provided direct benefits to parents and only indirect benefits to schools. The petitioners and dissenters in Mueller could not make their argument that religious schools received too much aid without analyzing which parents benefited.
The majority in Mueller rejected that approach. That mode of analysis becomes less accurate, but no more valid, by omitting the logically necessary step of evaluating which parents benefit and instead jumping right to the percentage of participating schools.
Perhaps the best that can be said in defense of the District Court is not that it engaged in a different analysis than the one rejected by Mueller (for that is not true), but that it engaged in the same analysis for a different purpose. The petitioners and dissenters in Mueller analyzed the percentages of beneficiaries and religious schools to argue that too much aid went to religious schools. The District Court analyzed the percentage of participating schools with religious affiliations to demonstrate that parents under the Cleveland Plan do not exercise genuinely independent choices.
However, this "deconstruction" of parents' choices provides no better justification for using the statistical analysis rejected in Mueller. The Supreme Court had ample reasons for rejecting such statistical analysis, and they all apply to the District Court's use of the same analysis to make a different point.
First, as noted above, the District Court's analysis makes the constitutionality of state action turn on private actions over which the State has no control. This violates principles of constitutional law and common sense.
Second, the District Court''s analysis does not address how many additional secular schools would need to sign-up (or how many religious schools would need to pull out) to make the Program constitutional. We know that 82% is too many, but how about 67%? Or does the Constitution demand a 50-50 split?
The District Court opinion provides no clues, nor could it. Once facial neutrality is abandoned as the benchmark, there is no intelligible principle to determine how much choice is enough. See Mueller, 463 U.S. at 401 ("[N]or can we perceive principled standards by which such statistical evidence might be evaluated.").
Third, the District Court's analysis poses additional practical problems. If the percentage of participating religious schools is the key to the Program's constitutionality, then its constitutionality would vary over time.
Can a subset of the participating religious schools save the Program by withdrawing? Will the Program become constitutional if 末 as is likely 末 additional private secular schools are created over time and agree to participate?
Finally, the District Court's analysis ignores the reality of the Program. The thrust of the District Court's ruling is that parents do not have a meaningful opportunity to choose anything other than a religious school.
However, no parent is forced to opt into the Program. Every parent retains the option of choosing a secular public school. Moreover, each parent in the Program has the option of choosing a private secular school. Accordingly, any money that flows to the schools is truly the result of genuine individual choice.
The District Court's repeated invocation of the fact that 82% of participating schools are religious does not make these parental choices any less meaningful. The District Court used the same flawed analysis to conclude that the Cleveland Program violated Agostini's prohibition on providing incentives for students to choose religious schools. See 72 F.Supp.2d at 860, 865.
It expressed concern that participating parents' choices were not unbounded, but limited to participating schools, many of which are religious. See id. As a consequence, the court concluded that the Program provides an incentive to choose a participating school over a non-participating school. See id.
This is irrelevant. The Supreme Court's precedents require neutrality and forbid skewing choices to favor religious options. Those precedents do not condemn neutral restrictions on the use of funds or eligibility requirements.
The student in Witters could only use his educational benefit for vocational training. Presumably, this gave him an incentive to choose religious training over a secular program that did not involve vocational training, but that did not render the program unconstitutional.
Neither the Court's precedents nor the Establishment Clause require the kind of unbounded parental discretion demanded by the District Court. To the contrary, the only relevant question is whether the eligibility requirements skew parental choice to create an incentive to favor religious schools.
The Cleveland Program is completely neutral. Every parent can choose either a public secular, a private secular, or a private religious school. The resulting parental choices are meaningful and genuine, both practically and constitutionally.
Aid flows to religious schools not because of government decisions, or because a secular option is unavailable, but because of the independent, intervening choices of parents and students. As a consequence, there is no state action favoring religion, no state endorsement of religion, and no "establishment" of religion.
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