Part Three
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 (Continued)
II. It Would Violate the Constitution for a School Choice Program To Discriminate Against Religious Schools and Religious Choices.
To help young people in Cleveland, the State of Ohio attempted a bold experiment. It expanded Cleveland parents' educational options by providing them with the means of selecting from among a range of participating alternative schools 末 private, religious, or public.
The Program's opponents have insisted, and the District Court held, that this program is unconstitutional because it includes religious schools. Evidently, in their view, the Program would pass constitutional muster only if Ohio had excluded religious schools.
The Program's opponents, and the District Court, are wrong. Not only does the Constitution permit Ohio to allow otherwise-eligible religious schools to participate in the Program, it would prohibit Ohio from enacting a choice program that included private, non-religious schools but excluded religious schools, or discriminated against religiously motivated choices.
A. The Constitution Requires Equal Treatment of, Not Hostility Toward, Religion.
It is a bedrock constitutional principle that the government "may not . . . impose special disabilities on the basis of religious views or religious status." Employment Div. v. Smith, 494 U.S. 872, 877 (1990); see also, e.g., McDaniel v. Paty, 435 U.S. 618, 639 (1978) (Brennan, J., concurring) ("[G]overnment may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits."). That is, the government may not "discriminate[] against some or all religious beliefs or regulate[] or prohibit[] conduct because it is undertaken for religious reasons." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993).
As the Supreme Court said long ago, this non-discrimination rule is no less fundamental than the command that the government not require or subsidize religious observance:
[The First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them. Everson, 330 U.S. at 18.
But the District Court's decision sanctions 末 indeed, it mandates 末 unconstitutional discrimination against "religious ideas, religious people, [and] religious schools." Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 717 (1994) (O'Connor, J., concurring). It singles out religious ideas, religious schools, and those who choose those schools for "special disabilities on the basis of religious views or religious status[.]" Smith, 494 U.S. at 877.
It rests on the baseless premise that religion may be specially disadvantaged in the operation of neutral, generally applicable public-benefit programs. This is not the law.
Not only does the District Court's decision conflict with precedent, it also undermines core First Amendment values. Religious expression 末 including choosing to educate one's child in a religious faith 末 has long been valued, not feared, in our constitutional tradition.
Indeed, for many low-income parents, choosing how to educate their children may be one of the few available vehicles for expressing publicly their beliefs about matters of ultimate concern. The District Court's demand that Ohio exclude religious schools from the Program effectively would preclude many low-income parents from enjoying the fulfillment and satisfaction such expression brings. See generally Stephen G. Gilles, On Educating Children: A Parentalist Manifesto, 63 U. Chi. L. Rev. 937 (1996).
In light of these core values, the Constitution protects religious liberty and equality in at least four complementary ways, each of which illustrates the basic equal-treatment-of- religion requirement. First, the Establishment Clause itself maximizes individuals' ability freely to exercise, or refrain from exercising, religion. That is, the government is forbidden to establish religion, not because religion is bad or to be feared, but because decisions about religion are left to the people. See, e.g., Everson, supra.
Just as the Establishment Clause prohibits government conduct that promotes, advances, or endorses religion, it guards with equal vigor against any government discrimination against or official disapproval of faith. Under the Establishment Clause, the state may neither advance nor inhibit religion; it may neither favor nor display hostility toward faith; it may not endorse or disapprove religion.
Second, the Free Exercise Clause works together, and not at cross-purposes, with the Establishment Clause, by making clear that religious practice and belief are specially privileged under our Constitution. Accordingly, the government "may not . . . impose special disabilities on the basis of religious views or religious status." Smith, 494 U.S. at 877; Lukumi, 508 U.S. at 533.
It is no less discriminatory to deny otherwise-generally-available benefits 末 vouchers, for instance 末 on the basis of religion than to single out religious conduct for prohibition or disfavor. The Free Exercise Clause would not permit the government to say, for example, "every retiree gets $30,000 per year, unless he or she plans on spending any of that money on Bibles," nor should it permit the government to say, "every child is entitled to a publicly-funded education at the public or private school of his or her parents' choice, unless the parents select a religious private school."
Third, the Free Speech Clause requires that the government not single out and disadvantage certain kinds of expression and speech, including religious expression, based on the religious content of that expression and speech. See Rosenberger, supra; Pinette, supra; Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993); Board of Education v. Mergens, 496 U.S. 226 (1990); Widmar v. Vincent, 454 U.S. 263 (1981).
Indeed, few constitutional propositions are more basic than the rule that, absent compelling justification, the government may not discriminate against or deny a benefit to a person because of the content of his expression. Rosenberger, 515 U.S. at 828. The Supreme Court reaffirmed that principle just last month. See Board of Regents v. Southworth, No. 98-1189 (U.S. March 22, 2000). Just as in those cases the government could not create open forums for expression that excluded religious speech, the District Court erred in requiring Ohio to establish an open forum for education but exclude religious schools.
Finally, discrimination on the basis of religion violates the Fourteenth Amendment's Equal Protection Clause. That Clause requires that religion and religiosity may not be the basis for the distribution of public-welfare benefits. Once the government elects to provide a public-welfare benefit 末 education 末 it may not single out religious people and religious institutions for a shoddier version of that benefit, any more than it could decide to reduce the Fire Department's budget by telling it not to bother with "house calls" to churches.
In short, the exclusion of religious schools from otherwise-generally-available school-choice programs 末 that is, from programs that are open to non-religious private schools 末 is discrimination against religion and religious expression. Such exclusion is not simply a "refusal to subsidize" religion and is, instead, a decision to disadvantage religion specially in the context of a decision to fund education 末 public and private 末 generally.
The Constitution Would Not Permit Ohio To Exclude Religious Schools, or Discriminate Against Religiously Motivated Choices, in the Context of the Cleveland School-Choice Program.
The Cleveland Program aims to improve education overall by allowing parents, rather than the government, to choose which educational messages they wish to communicate to their children. The government may not, as the Program's opponents would have it do, discriminate against the private expression of religious messages. Therefore, having decided that public-school students should be given a real opportunity to seek alternative education, the Ohio Legislature could not, consistently with the Constitution, have disqualified parents who desired to educate their children in a religious school.
Nor did it. As demonstrated above, the Cleveland Program makes a public benefit 末 scholarships 末 generally available on the basis of neutral criteria. It is open to both public and private schools that meet certain religion-neutral requirements. It does not prefer religious schools and choices, nor does it discriminate against them.
But if the District Court's decision is correct, the Establishment Clause requires Cleveland to do precisely what the Constitution forbids 末 discriminate against otherwise-eligible religious schools. The decision is wrong; "equal treatment" is not "establishment."
Pinette illustrates this point. In Pinette, Justice Scalia explained that the Establishment Clause did not require, nor did the First Amendment permit, discrimination against private religious speech in a public forum available to other, nonreligious, forms of speech:
[P]rivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. . . . Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince. Pinette, 515 U.S. at 760 (plurality opinion).
In Rosenberger, the Supreme Court made clear that these core First Amendment principles extend beyond speech and apply to funding as well. Rosenberger held that "the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Rosenberger, 515 U.S. at 839.
Moreover, once the government "expends funds to encourage a diversity of views from private speakers," it may not single out religious speakers as unworthy or ineligible for those funds. Id. at 834. Such discrimination "would risk fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires." Id. at 845-46.
That is precisely what the District Court opinion has done. Not only is the decision an incorrect exposition of Establishment Clause requirements, it perpetuates unconstitutional discrimination against religion.
III. The States Should Be Permitted To Serve as "Laboratories of Democracy," To Experiment With Various Means of Education Reform, and To Work Toward the Goal of Educational Equality.
Over sixty years ago, Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932), observed:
"It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
In this case, Ohio has acted just as Justice Brandeis envisioned. Faced with educational difficulties that threatened the future of the State as a whole and, more particularly, of some its most vulnerable and disadvantaged children, Ohio decided to serve as a "courageous" laboratory of democracy.
Rather than cling to its failing one-size- fits-all educational system, Ohio tapped into the creative energy and diversity of parents, teachers, and schools. And so, when the District Court invalidated the Cleveland Program, it not only misread the commands of the First Amendment. It turned our federal constitutional system on its head, using a Constitution designed to promote creative policy innovation to thwart it.
Across the Nation, from Arizona to Illinois to Florida, States are acting 末 in the face of special-interest opposition 末 in the best experimental tradition of our constitutional federalism to enact a variety of charter-school, tax-credit, school-choice, and other educational reform programs. The Cleveland Program 末 along with the similar Milwaukee program upheld by the Wisconsin Supreme Court in Jackson, supra 末 was a pioneering effort, to which many local officials have looked and will continue to look. Unfortunately, the States' creative initiatives often have been hamstrung and delayed by baseless Establishment Clause challenges that reflect policy disagreements more than sound constitutional doctrine.
The Supreme Court has clarified that the First Amendment does not require hostility toward religion and that the independent choices of citizens to direct to religious institutions government benefits that are allocated according to religion-neutral criteria do not violate the Establishment Clause. But lower courts' failure to reach consistent conclusions regarding the constitutionality of structurally similar educational-reform programs impedes innovative policy experimentation. Still, States and local governments continue to press forward with choice-based reforms, even as they await definitive resolution by the Supreme Court.
This Court should not throw further roadblocks in front of education-reform efforts. Instead, the hope for Ohio's and other educational-reform efforts depends in large part on a clear ruling that such initiatives (1) are consistent with the Establishment Clause's neutrality mandate and (2) may not discriminate against religious schools or expression.
Conclusion
The Cleveland Program is a life-line for hundreds of disadvantaged young people in Cleveland. It is their best hope for educational opportunity, and it serves as a bold exemplar of reform for other States and cities. For all the reasons discussed in this brief, we urge this Court to reverse the District Court, and to join the Supreme Court of Ohio in concluding that the Program respects the fundamental principles of neutrality, equality, and religious freedom that are at the heart of the First Amendment.
Respectfully submitted,
Professor Nicole S. Garnett
Paul D. Clement
Professor Richard W. Garnett
Counsel of Record
Attorneys for Amici Curiae,
Center for Education Reform, et al.
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