Amicus Curiae Brief — Agostini v. Felton

FILEL

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ot FEB 27 1997

Nos. 96-552 & 96-553

—eemese@r THE CLERK

IN THE me

Supreme Court of the Qnited States

OCTOBER TERM, 1996

RACHEL AGOSTINI, ef al.,

Petitioners,

Vv.

BETTY-LOUISE FELTON, ef ai.,

Respondents.

CHANCELLOR OF THE BOARD OF EDUCATION

OF THE CITY OF NEW YORK, ef ai.,

Petitioners,

Vv.

BETTY-LOUISE FELTON, ef ai.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF AMICI CURIAE OF

THE INSTITUTE FOR JUSTICE,

THE CENTER FOR EDUCATION REFORM,

PARENTS FOR SCHOOL CHOICE, AND

HOPE FOR CLEVELAND’S CHILDREN

IN SUPPORT OF NEITHER PARTY

WILLIAM H. MELLOor III * MARK SNYDERMAN

CLINT BOLICK GIBSON, DUNN & CRUTCHER LLP

RICHARD D. KOMER 1050 Connecticut Ave., N.W.

INSTITUTE FOR JUSTICE Washington, D.C. 20036

1717 Pennsylvania Ave., N.W. (202) 955-8500

Washington, D.C. 20006

(202) 955-1300

* Counsel of Record

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. 1-800-347-8208

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i

TABLE OF CONTENTS

Page

ee Fe cccncccccsccccccsccccecsee i

INTEREST OF AMICI CURIAE ..............0000e00- l

INTRODUCTION AND SUMMARY OF

Eee aN 2

i 5

I. THE NATION DESPERATELY NEEDS

INNOVATIVE SOLUTIONS TO THE

CRISIS IN THE EDUCATION OF POOR

EEE AT ee eee 5

A. Low-Income Children Are Not

Receiving the Education They

IE a EN 5

B. Solutions to These Problems

Necessarily Must Involve Private and

Parochial Schools ...................+- 8

C. School Choice Programs Improve

Education By Enabling Poor Parents

to Choose the Best Schools For Their

EEEEED -dadpcacosacectbssebessooscocces 10

ii

Il. UNCHALLENGED PRINCIPLES OF

NEUTRALITY AND PRIVATE

DECISION MAKING ESTABLISH THE

CONSTITUTIONALITY OF STATE-

FUNDED SCHOOL CHOICE

Il. WHATEVER THE OUTCOME IN THESE

CASES, THE COURT SHOULD

REAFFIRM THOSE PRINCIPLES THAT

VALIDATE SCHOOL CHOICE............ 20

CONCLUSION ..........ccccccccccccccccccccscessocescs 24

TABLE OF AUTHORITIES

Page(s)

Cases:

Aguilar v. Felton, 473 U.S. 402 (1985).............. 20,21,22

Board of Educ. of Kiryas Joel Village Sch. Dist. v.

Grumet, 114 S.Ct. 2481 (1994) ............. 20

Brown v. Board of Education, 347 U.S. 483 (1954) 5,24

Committee for Public Education and Religious

Liberty v. Nyquist, 413 U.S. 756 (1973)... 17

Davis v. Grover, 480 N.W.2d 460 (Wis. 1992).... 13

Jackson v. Benson, No. 95-CV-1982 (Wisc. Dane

Cop. Css. Ce. Fam. 15, 1997) ...0cccccccces. 4

Lemon v. Kurtzman, 403 U.S. 602 (1971)........... 20,21

Mueller v. Allen, 463 U.S. 388 (1983)............... passim

Pierce v. Society of the Sisters of the Holy Names,

TIED nccccnccscsccosesoesoorees 10

Rosenberger v. Rector and Visitors of the University

of Virginia, 115 S.Ct. 2510 (1995) ......... 15,16,19

Widmar v. Vincent, 454 U.S. 263 (1981)............ 16

Witters v. Washington Dept. of Serv. for the Blind,

474 U.S. 481 (1986) .....cccccccceeeeceeeeees 18,19,21,22

iv

Zobrest v. Catalina Foothills School Dist., 509 U.S.

§ GEE coccccccdcsvesenssovectnesunesesecsctsees 19

Statutes and Regulations:

Ohio Rev. Code Ann. §§ 3313.974-.979 ............ 2,15

Wile, Biet, © BER Ticcecccccecesceccccscosesoccessocecese 2,15

Other Authority:

Anthony S. Bryk, Valerie E. Lee, and Peter B.

Holland, Catholic Schools and the Common

Jay R. Campbell, et al., Report in Brief? NAEP

Markets, and America's Schools (Brookings,

Kenneth B. Clark, “Alternative Public School

Systems," Network News & Views at 8 (July

1994) (reprinted from 38 Harvard

Educational Review (Winter 1968))......... 7

James S. Coleman, Thomas Hoffer, and Sally

Kilgore, High School Achievement (Basic

i eon 8,9

v

Milton and Rose Friedman, Free to Choose

for School Choice (Forum, 1996) ........... 6

Daniel Patrick Moynihan, "Government and the

TEED GUE ceiccmantanndnadendstieasesestesetces 8

Paul E. Peterson, A Critique of the Witte Evaluation

of Milwaukee's School Choice Program

(Center for American Political Studies,

SE Cin Ge cscccscetescsscesesccesee 14

Paul E. Peterson, Jay P. Greene & Chad Noyes,

"School Choice in Milwaukee," The Public

Interest at 38 (Fall 1996) ..................... 14

Diane Ravitch, "Somebody's Children," The

Brookings Review at 9 (Fall 1994) .......... 9

Valerie Strauss and Sari Horwitz, Students Caught

in a Cycle of Classroom Failures,

Washington Post Al (Feb. 20, 1997)....... 6

Abigail Thernstrom, School Choice in Massachusetts

Fe 11

vi

Maureen Wahl, Second-Year Report of the PAVE

Scholarship Program (PAVE, 1994)....... 13

Maureen Wahl, Third-Year Report of the PAVE

Scholarship Program (PAVE, 1995)........ 13

Paul L. Williams, et al., NAEP 1994 Reading: A

First Look (U.S. Dept. Ed., 1995).......... 6,8

INTEREST OF AMICI CURIAE*

Amici curiae are organizations strongly committed to

education reform and particularly to expanding parental

choice in education. The legal issues raised in the present

tirectly impli inde tnationtionsl 3

The Institute for Justice is a nonprofit public interest

law center that litigates in support of private property

rights, entrepreneurial freedoms, school choice, and other

individual liberties. The Institute presently is defending the

constitutionality of programs in Wisconsin, Ohio, and

Vermont that allow parents to direct public education

funding to the schools of their choice, including religious

schools.

The Center for Education Reform ("CER") is an

independent non-profit organization founded in 1993 to

advance substantive reforms in public education by working

to ensure that ideas critical to education reform are

identified, understood, and implemented. CER is an active

broker in bridging policies and practices through coalition

building and by working with diverse constituencies to

implement reforms that improve access, accountability, and

assessment, and that help restore educational excellence and

equity to America's public schools.

Parents for School Choice ("PSC") is a nonprofit

community organization that provides information and

* The parties have consented to the filing of this brief. Amici

have filed letters of consent with the Clerk.

support for economically disadvantaged Milwaukee parents

to expand the range and quality of educational opportunities

available to their children. PSC was the leading catalyst for

the expansion of the Milwaukee Parental Choice Program,

Wis. Stat. § 119.23, which allows up to 15,000 low-income

Milwaukee children to use their share of state education

funds in private schools. PSC is an intervenor/defendant in

litigation challenging the choice program's constitutionality.

Hope for Cleveland's Children ("Hope") is a

nonprofit organization founded to improve the education of

Cleveland's children and to maximize the options of

Cleveland parents. Hope was instrumental in bringing

about the Pilot Project Scholarship Program, Ohio Rev.

Code Ann. §§ 3313.974-.979, which allows Cleveland

youngsters to receive publicly funded scholarships to attend

private schools or public schools in adjacent districts. Hope

has opened two schools in Cleveland to serve economically

disadvantaged youngsters. Hope is an intervenor/defendant

in a lawsuit challenging the scholarship program's

constitutionality.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Title I program at issue in these cases is

designed to address one of this Nation's most vitally

important problems: the education of underprivileged

children. The present amici are interested primarily in an

additional, alternative approach to this problem. We

promote and defend programs that offer low-income parents

a meaningful choice of educational alternatives for their

children through publicly funded vouchers and scholarships.

To be fully effective, these programs must include a wide

variety of educational options, including high quality

parochial schools. State sponsorship of such school choice

programs is the subject of ongoing litigation that presents

constitutional issues closely related to those the Court will

consider here.

Amici believe that the principles this Court has

enunciated in its prior Establishment Clause decisions

mandate the conclusion that school choice programs are

constitutional. Asnici do not, of course, ask this Court to

address this question in the present cases. We ask only that

the Court remain cognizant of school choice in crafting its

opinion, and that the Court thereby reaffirm the principles

amici believe establish the constitutionality of state-

sponsored school choice.

Solutions to the crisis in the education of

underprivileged children inevitably will involve private and

parochial schools, which often are the only institutions

providing high-quality education in inner-cities.

Unfortunately, our present system consigns poor parents

and their children to failed public schools. School choice

programs give these parents a way out—the option to

choose the best education for their children. By providing

partial or full tuition for parents who choose private or

alternative public schools, school choice programs empower

parents to control their children's future, and promote

accountability and incentives for improvement among the

schools in competition for parents’ tuition dollars. School

choice enables parents to exercise their constitutional right

to choose their children's school, including their right to

choose a parochial school.

Two fundamental aspects of state-funded school

choice programs ensure that they do not constitute an

establishment of religion: such programs are neutral toward

religion, and they “aid” sectarian institutions only indirectly

through the independent and private decisions of individual

parents. School choice programs that give parents an

option to send their children to parochial schools are neutral

towards religion because they provide assistance to a class

of beneficiaries defined without reference to religion and do

not restrict choices to religious schools. School choice

programs do not constitute direct aid to sectarian institutions

because no funds are transmitted to schools except upon the

direction of parents. “Where ... aid to parochial schools is

available only as a result of decisions of individual parents

no ‘imprimatur of state approval’ can be deemed to have

been conferred on any particular religion, or on religion

generally." Mueller v. Allen, 463 U.S. 388, 399 (1983).

Whatever the outcome in the present cases, the Court

should hold inviolate these Establishment Clause principles

of neutrality and private decision making.

These principles cannot be reaffirmed often enough.

In a recent decision of the Wisconsin trial court considering

the constitutionality of the state-funded school choice

program in Milwaukee, the court refused to accept this

Court's constitutional delineation between direct and

indirect assistance. To the Wisconsin court, a program of

parental choice constitutes state assistance to sectarian

schools no less direct than if the state had determined where

the money was to go; this Court's decisions to the contrary

were simply misguided: “Although the U.S. Supreme

Court has chosen to turn its head and ignore the real impact

of such aid, this court refuses to accept that myth."

Jackson v. Benson, No. 95-CV-1982, Memorandum

Decision and Order at 28 (Wisc. Dane Cty. Circ. Ct. Jan.

15, 1997). A rule that can engender this kind of disrespect

from lower tribunals is in need of reassertion.

ARGUMENT

I. THE NATION DESPERATELY NEEDS

INNOVATIVE SOLUTIONS TO THE CRISIS IN

THE EDUCATION OF POOR CHILDREN

A. Low-Income Children Are Not Receiving

the Education They Deserve

The importance of education to the lives of our

children and the future of our Nation is beyond

peradventure:

[E}ducation is ... a principal instrument in

awakening the child to cultural values, in

preparing him for later professional training,

and in helping him 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.

Brown v. Board of Education, 347 U.S. 483, 493 (1954).

Education provides not only the basic skills necessary for

meaningful participation in the American economy and

political system, but, at least as important, inculcates those

basic values critical to the orderly functioning of American

society.

The American education system has failed many of

our children. In the 1991 International Assessment of

Educational Progress, United States 13-year-olds ranked

twelfth of fourteen countries in math and science. Daniel

McGroarty, Break These Chains: The Battle for School

Choice at 17-18 (Forum, 1996). The bellwether National

Assessment of Educational Progress ("NAEP") reveals that

only 30 percent of fourth graders, 30 percent of eighth

graders, and 36 percent of twelfth graders nationwide were

reading at a proficient level in 1994. Paul L. Williams, et

al., NAEP 1994 Reading: A First Look at 15 (U.S. Dept.

Ed., 1995). In the interval between 1992 and 1994 alone,

the average reading assessment score for twelfth-grade

students declined significantly. Jd. at 7.

These educational deficiencies are greatest among

poor and minority children. “[I]}n large cities—whose poor

and minority children desperately need quality education—

the [high school drop out rate] can climb to 50 percent."

John E. Chubb and Terry M. Moe, Politics, Markets, and

America's Schools at ix (Brookings, 1990). In the District

of Columbia, for example, more than 40 percent of public

school students drop out before high school graduation.

Valerie Strauss and Sari Horwitz, Students Caught in a

Cycle of Classroom Failures, Washington Post Al (Feb.

20, 1997). Recent NAEP data shows African-American

and Hispanic children lagging considerably behind whites in

reading, writing, math, and science performance at all ages

and grade levels studied—17-year-old black students in

1994, for example, were reading at a level equivalent to 13-

year-old whites—and the gap generally has been growing in

recent years. Jay R. Campbell, et al., Report in Brief:

NAEP 1994 Trends in Academic Progress at 7, 9, 11 (U.S.

Dept. Ed., 1996). Widespread drug use and rampant

violence in the schools that are supposed to be serving these

children contribute to and compound these problems. It is

no wonder that a recent national survey found that only 16

percent of respondents believe children in America's inner

cities are receiving the education they need. International

Communications Research, A National Survey of

Americans’ Attitudes Toward Education and School Reform

at 3 (Center for Education Reform, 1996). In many inner-

city schools, there simply is no education taking place.

Sadly, for the overwhelming majority of children

and their parents who are the victims of this failed system,

there is no way out. For most poor children, education

overwhelming is received through a single provider, the

local school district, which determines what, where, and

how students will be taught, with virtually no parental

choice in these fundamental matters. !

1 One of the earliest critiques of the monopolistic American

education system came from Kenneth Clark, the educator and

psychologist whose work with African-American children so

influenced this Court's decision in Brown:

(jt appears that the present system of

Organization and functioning of urban public

schools is a chief blockage in the mobility of the

masses of Negro and other lower-status minority

... Victims of the monopolistic inefficiency of the

present pattern of organization and functioning of

our public schools.

Kenneth B. Clark, “Alternative Public School Systems,”

Network News & Views at 8, 15 (July 1994) (reprinted from

38 Harvard Educational Review (Winter 1968)).

B. Solutions to These Problems Necessarily

Must Involve Private and Parochia!

Schools

Alternatives exist, for those who can afford them, in

the very neighborhoods where public school students

perform worst. The educational performance of children in

private and parochial schools considerably exceeds that of

children from similar backgrounds attending public schools.

E.g., James S. Coleman, Thomas Hoffer, and Sally

Kilgore, High School Achievement at 180-81 (Basic Books,

1982). Private and parochial schools provide a safer, more

disciplined, and orderly environment than public schools,

and impose greater academic demands. Jd. The recent

NAEP data reveal that private school students’ reading

performance exceeded public school performance at all

grade levels examined. NAEP 1994 at 12. Public school

students lacked basic reading skills at more than twice the

rate of their private and parochial school counterparts. Id.

at 22.

"Parochial schools, quite apart from their sectarian

purpose, have provided an educational alternative for

millions of young Americans." Mueller v. Allen, 463 U.S.

388, 401-02 (1983) (internal quotations omitted). Nowhere

has this been more evident than in the education of poor and

minority children. In the words of economist Thomas

Sowell, "'One of the great untold stories of contemporary

American education is the extent to which Catholic schools,

left behind in ghettoes by the departure of their original

white clientele, are successfully educating black youngsters

there at low cost.'" Quoted in Daniel Patrick Moynihan,

"Government and the Ruin of Private Education," Harper's

at 28, 37 (April 1978).

Disadvantaged students in Catholic schools have a

lower dropout rate than their peers in public schoois. Diane

Ravitch, "Somebody's Children,” The Brookings Review at

9 (Fall 1994). Parental participation is greater in Catholic

schools than in public schools, with parents of poor

African-American students in particular participating in the

PTA at much higher levels in Catholic schools. /d.

Catholic school students consistently score higher in

standardized tests. Jd. One recent study found Catholic

school suidents' average math achievement “considerably

higher” than that of public school students from the same

economic class: "By senior year, lower-middle class

students attending Catholic schools are achieving 4.5 years

ahead of their counterparts in the public sector." Anthony

S. Bryk, Valerie E. Lee, and Peter B. Holland, Catholic

Schools and the Common Good at 246-48 (Harvard, 1993).

In Catholic high schools, the average learning rate in math

for minority students between the sophomore and senior

years was 65 percent faster than the average learning rate of

public school students in general, and 100 percent faster

than that of their minority counterparts in public schools.

Id. The study also found that math performance of Catholic

school students varies less with economic class than in

public schools, and that the difference in math performance

between white and minority students is narrower in Catholic

schools. Over time, moreover, the white/minority gap

narrows in Catholic schools, while it increases in the public

schools. Jd. Such results have led one distinguished

research team to conclude: “Catholic schools more nearly

approximate the ‘common school’ ideal of American

education than do public schools.” High School

Achievement at 185.

10

Cc. School Choice Programs Improve

Education By Enabling Poor Parents to

Choose the Best Schools For Their

Children

The great success of inner-city private and parochial

schools has focused attention on education reform proposals

that would provide poor parents the opportunity to choose

their children's schools. School choice programs provide

such opportunities by giving these parents control over a

So ey en ee

mechanisms come into play to improve education: First, a

2 School choice also enables parents’ fundamental right

choose their children's education, including their right

choose a parochial school. “The child is not the

creature of the state; those who nurture him and

destiny have the right, coupled with the high duty,

recognize and prepare him for additional obligations.

Pierce v. Society of the Sisters of the Holy Names, 268 U.S.

510, 535 (1925) (Oregon law mandating that all childrem

between the ages of 8 and 16 attend public school

“unreasonably interfere{d] with the liberty of parents and

guardians to direct the upbringing and education of childrem

under their control.").

ll

“process of selection and sorting” occurs, whereby families

with different educational goals choose the school that best

fits their needs. Politics, Markets, and America's Schools

at 32-33. The result is a rich educational pluralism: in-

District 4 in East Harlem, where parents have been freed to

choose among different public elementary and junior high

schools, successful new schools have arisen to meet the

interests of parents and students, including the School of

Science and Humanities, the Jose Feliciano Performing Arts

School, and the East Harlem School for Health and Bio-

Medical Studies. Jd. at 213.

Second, choice makes schools directly accountable

12

public schools." Mueller, 463 U.S. at 402 (internal

quotations omitted). But with the increased competition

engendered by school choice programs, “the quality of all

schooling [will] rise so much that even the worst [school],

while it might be relarively lower on the scale, would be

better in absolute quality." Milton and Rose Friedman,

Free to Choose at 170 (Harcourt Brace Jovanovich, 1980)

(emphasis original).¢

The school choice programs conducted to date have

delivered precisely the increased parental satisfaction and

striking examples. Partners Advancing Values in Education

scholarships at religiously-affiliated schools (and thereby

in any other area in which competition is introduced, school

choice will the lower cost of education.

13

of the city’ most successful schools), but has allowed low-

income youngsters to attend nonsectarian private schools for

the past seven years. See Davis v. Grover, 480 N.W.2d

460 (Wis. 1992). PAVE, on the other hand, has included

parochial schools since its inception. PAVE grants are

made to low-income families residing in the Milwaukee

metropolitan area who choose to enroll their children in a

private elementary or secondary school. Grants are

available for up to half of the chosen school's annual

tuition.

A 1995 study of PAVE shows an extraordinary level

of satisfaction among participating parents. Fully 96

percent of parents said they were satisfied or very satisfied

with the amount their children learned, and 96 percent also

described themselves as satisfied or very satisfied with their

children's teachers. Ninety-seven percent expressed

parent involvement; 92 percent rated their child's school an

A or B. Maureen Wahl, Third-Year Report of the PAVE

Scholarship Program at 6 (PAVE, 1995).

Though improvements in educational performance

are more difficult to assess, after only two years, more than

63 percent of PAVE students tested at or above the 50th

national percentile rank ("NPR") in reading, and more than

60 percent tested at or above the 50th NPR for math. By

contrast, among low-income students in Milwaukee public

schools, only 25.2 percent tested at or above the 50th NPR

in reading, and only 33.5 percent were at or above the 50th

NPR in math. Maureen Wahl, Second-Year Report of the

PAVE Scholarship Program at 22 (PAVE, 1994).

14

Similar results have been reported from the state-

funded Milwaukee program. Thirty-six percent of choice

parents graded their children's school an "A," compared

with 27 percent of public school parents, and “[cJhoice

parents expressed substantially greater satisfaction than did

public school parents with every aspect of their child's

education: the amount their child learned, the teacher's

performance, the program of instruction, the discipline in

the school, the opportunities for parental involvement, the

textbooks, and the location of the school.” Paul E.

Peterson, A Critique of the Witte Evaluation of Milwaukee's

School Choice Program at 37-38 (Center for American

Political Studies, Harvard Univ., 1995).

Even more impressive are the data on academic

achievement in Milwaukee. An important recent

students in the program, who had been selected randomly

for inclusion, to a control group who had applied for the

program but had been rejected by the same random process.

Paul E. Peterson, Jay P. Greene & Chad Noyes, “School

Choice in Milwaukee," The Public Interest at 38 (Fall

1996). By their third year in the program, choice students

15

Il. UNCHALLENGED PRINCIPLES OF

NEUTRALITY AND PRIVATE DECISION

MAKING ESTABLISH THE

CONSTITUTIONALITY OF STATE-FUNDED

SCHOOL CHOICE PROGRAMS

Two fundamental aspects of state-funded school

choice programs ensure that they do not constitute an

establishment of religion: such programs are neutral toward

religion, and they “aid” sectarian institutions only indirectly

through the independent and private decisions of individual

parents.

"A central lesson of [this Court's] decisions is that a

significant factor in upholding governmental programs in

the face of Establishment Clause attack is their neutrality

towards religion." Rosenberger v. Rector and Visitors of

the University of Virginia, 115 S.Ct. 2510, 2521 (1995).

School choice programs that give parents an option to send

their children to parochial schools are neutral towards

religion because the class of beneficiaries is defined without

reference to religion, and no financial incentive exists to

choose private or religious schools. Such is the nature of

the programs in Milwaukee and Cleveland, for example,

currently under challenge in the state courts. See Wis. Stat.

§ 119.23; Ohio Rev. Code Ann. §§ 3313.974-.979. The

state provides the same benefits to these parents irrespective

of the nature of the particular school the parents choose for

their children. “[TJhe 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, 115

S.Ct. at 2521.

16

The Rosenberger Court suggested, nonetheless, that

“even ... a neutral program that includes nonsectarian

recipients" might violate the Establishment Clause if “the

government is making direct money payments to an

institution or group that is engaged in religious activity."

Id. at 2523. Assuming arguendo that such payments would

constitute an Establishment Clause violation, school choice

programs do not suffer from this infirmity because the

recipients of government benefits in such programs are the

parents, not religious schools. “Where ... aid to parochial

schools is available only as a result of decisions of

individual parents no ‘imprimatur of state approval' can be

deemed to have been conferred on any particular religion,

or on religion generally." Mueller v. Allen, 463 U.S. 388,

399 (1983) (quoting Widmar v. Vincent, 454 U.S. 263, 274

(1981)) (emphasis added).

In Mueller, the Court sustained against

Establishment Clause challenge a Minnesota statute that

allowed parents to deduct from their taxes tuition and other

educational expenses incurred in sending their children to

elementary and secondary schools, including parochial

schools. The Minnesota program, like more traditional

school choice programs involving vouchers or direct

payment to parents, provided benefits to parents sending

their children to both public and private schools, with no

preference for the sectarian or nonsectarian nature of the

school. As in Rosenberger, the Court declared that “a

program, like [the Minnesota statute], that neutrally

provides state assistance to a broad spectrum of citizens is

17

not readily subject to challenge under the Establishment

Clause." Jd. at 398-99.5 Petitioners argued that the

financial assistance provided to parents under the Minnesota

program ultimately had an economic effect comparable to

aid given directly to the schools. The Court explained the

5 The Mueller Court expressly distinguished Committee for

Public Education and Religious Liberty v. Nyquist, 413 U.S.

756 (1973). In that case, the Court held that a tuition

assistance grant to parents for use at private schools only

violated the Establishment Clause. The Nyquist Court noted,

however, that assistance made generally available without

regard to the sectarian-nonsectarian or public-nonpublic

nature of the school might not offend the Establishment

Clause. Jd. at 782-83 n.38. That case arose in Mueller v.

Allen. The Court there explained the “vital difference”

between the universally-applicable Minnesota tax credit and

the New York statute at issue in Nyquist: In Nyquist, “public

assistance amounting to tuition grants was provided only to

parents of children in nonpublic schools" thus showing a

possible state preference for parochial schools. Mueller, 463

U.S. at 398 (emphasis original). Moreover, all of the

various aid programs challenged in Nyquist directed

assistance exclusively to private schools.

The Court noted in Mueller that Nyquist is an aberration

in Establishment Clause jurisprudence. 463 U.S. at 399. To

the extent Nyquist is still good law, Mueller constrained that

case to its facts. School choice programs do not run afoul of

Nyquist because, like the program in Mueller, they provide

assistance to children attending both sectarian and

nonsectarian, public and nonpublic schools, or they exist

within an overall framework of school reform that provides a

wide range of public and private educational options.

18

critical difference: “under Minnesota's arrangement public

funds become available only as a result of numerous private

choices of individual parents of school-age children." Id. at

399 (emphasis added). Accordingly, there was no

“imprimatur of state approval," and no Establishment

Clause violation.

The Minnesota program at issue in Mueller, which

allowed parents to deduct part of their tuition payments

from their taxes, is analytically identical to school choice

programs like those in Milwaukee and Cleveland, which

essentially reimburse parents for part or all of the tuition

they pay. In each case, the state has lessened the financial

burden on parents who choose a private school for their

children. But it remains the parents who may choose a

parochial school; the state provides no aid to religious

organizations. State financial assistance to parents

constitutes no establishment of religion.

This Court twice has reaffirmed the rule in Mueller,

emphasizing that individual choice negates any claim of

establishment of a state religion. The petitioner in Witters

v. Washington Dept. of Serv. for the Blind, 474 U.S. 481

(1986), sought to use money from a Washington state

vocational rehabilitation program for the blind to attend a

Christian college. The Court ruled that the Establishment

Clause does not preclude such assistance where aid is

provided to the individual who chooses the school to attend.

“Any aid provided under Washington's program that

ultimately flows to religious institutions does so only as a

result of the genuinely independent and private choices of

aid recipients.... [TJhe fact that aid goes to individuals

means that the decision to support religious education is

made by the individual, not by the State." /d. at 488.

19

Mueller and Witters provided the rule of decision in

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1

(1993). The Court there held that the Establishment Clause

does not prevent the state from providing a deaf student

with a sign-language interpreter to accompany him to

classes at a Catholic high school. Again the Court

explained that any benefit flowing to the school from the

disability assistance program was attributable to the private

choices of individual parents, and not the action of the state.

Id. at 10.

Mueller, Witters, and Zobrest answer definitively

any Establishment Clause challenge to school choice. Even

the dissent in Rosenberger—which concluded that state

payment of printing costs for a sectarian student publication

violates the Establishment Clause—acknowledged the

continuing vitality of Mueller, Witters, and Zobrest and the

decisive importance of private decision making in

Establishment Clause jurisprudence: the “'‘attenuated

financial benefit[s] [to sectarian institutions], ultimately

controlled by the private choices of individual[s],' ... are

simply not within the contemplation of the Establishment

Clause's broad prohibition.” Rosenberger, 115 S.Ct. at

2542 (Souter, J., dissenting, joined by Stevens, Ginsburg,

and Breyer, JJ.) (quoting Mueller, 463 U.S. at 400).

Providing assistance to parents so that they might choose

between various public and private educational alternatives

is not a “law respecting an establishment of religion” under

any rational understanding of that constitutional phrase.

20

Il. WHATEVER THE OUTCOME IN THESE

CASES, THE COURT SHOULD REAFFIRM

—THOSE PRINCIPLES THAT VALIDATE

SCHOOL CHOICE

however the Court decides these cases. Thus, a decision to

overrule Aguilar v. Felton, 473 U.S. 402 (1985), and allow

Title I services in parochial schools on the same basis they

are allowed in public and other private schools, will

constitute a reaffirmation of the principle of neutrality.

Like school choice programs, Title I provides services to

underprivileged children irrespective of the sectarian or

nonsectarian nature of the school they attend. Such

programs carry a strong presumption of constitutionality.

The Court invalidated the Title I program at issue in

Aguilar because it concluded that the provision of

government funded instruction in parochial schools

constitutes an excessive entanglement between church and

state. 473 U.S. at 409. Several members of the Court have

called for the reconsideration or overruling of this decision,

‘aiid have questioned the continuing utility of the

entanglement prong of the Establishment Clause test

articulated in Lemon v. Kurtgnan, 403 U.S. 602 (1971).

See Board of Educ. of Kiryas Joel Village Sch. Dist. v.

Grumet, 114 S.Ct. 2481, 2498 (O'Connor, J.), 2505

(Kennedy, J.), 2515 (Scalia, J., joined by Rehnquist, C.J.,

and Thomas, J.) (1994). Reversal in the present cases will

require the Court either to recede from the expansive

reading of entanglement in Aguilar, or discard excessive

entanglement as an element of Establishment Clause

jurisprudence altogether. In either event, the Court will

hold that the mere involvement of the state in attempts to

21

improve the education of children in a variety of schools is

not the establishment of religion. School choice programs

will benefit.

Reaffirmation of Aguilar, on the other hand, likely

will require a finding of excessive entanglement in the

provision of Title I services in parochial schools.© The

6 The Aguilar Court did not purport to find a problem with

Title I under the first two prongs of the Lemon test: a valid

secular purpose, and a primary effect that neither advances

nor inhibits religion. See Lemon, 403 U.S. at 612.

Assuming Lemon still provides the relevant inquiry in

Establishment Clause cases, school choice programs meet

these two criteria. Like Title I, school choice programs are

designed to promote the valid secular purpose of improving

education for underprivileged children. As to primary effect,

a majority of the Court in Winters declared that ‘state

) programs that are wholly neutral in offering educational

) assistance to a class defined without reference to religion do

not violate the second part of the Lemon v. Kurtzman test,

because any aid to religion results from the private choices of

individual beneficiaries." 474 U.S. at 490-91 (Powell, J.,

joined by Burger, C.J., and Rehnquist, J.); id. at 490

(White, J.) (agreeing with Powell on this point); id. at 493

(O'Connor, J.) (same).

For the same reason, school choice programs do not

constitute an unconstitutional “endorsement” of religion. Jd.

at 493 (O'Connor, J.) ("The aid to religion at issue here is

the result of petitioner's private choice. No reasonable

observer is likely to draw ... an inference that the State itself

is endorsing a religious practice or belief.").

22

entanglement about which the Court was concerned in

Aguilar derived from the presence of government funded

instructors in parochial school classrooms and the efforts

necessary to keep the government and religious instruction

separate. 473 U.S. at 412-13. No such problem exists in

school choice programs because there is no such contact

between the state and parochial schools. The schools

provide education as they see fit (subject only to the

ordinary requirements for state accreditation) and receive

payment for their services from the parents of the children

who attend. The state puts money behind the parents’

choices, and may establish certain minimal requirements for

“aud cuiaten a Ge Ge Ge such as

nondiscrimination in admissions. But the state does not

otherwise interact with the school or involve itself in the

school's internal affairs. Nor does it matter that state funds

can be traced to sectarian institutions as part of a school

choice program, as long as the decision to choose a

particular school is in the hands of a parent or student. See,

e.g., Witters, 474 U.S. at 751.’

7 In his concurrence in Aguilar, Justice Powell asserted

another alleged infirmity of the Title I program at issue in

these cases: the program violates the Establishment Clause

because it “amounts to a state subsidy of the parochial

schools by relieving those schools of the duty to provide the

remedial and supplemental education their children require.“

473 U.S. at 417 (Powell, J., concurring). Even if the Court

agrees with Justice Powell in these cases, it is plain that

school choice programs do not relieve parochial schools of

any duty they otherwise would have assumed. Absent state

funding, the children in choice programs would be unable to

[Footnote continued on next page]

23

However the Court chooses to characterize the Title

I program in the present cases, school choice programs

provide no aid to schools; they provide aid to parents. The

provision of financial assistance to low-income parents does

not help private and parochial schools; it simply widens the

circle of students who may be_enriched by the superior

education these schools offer. The Court can reaffirm in

this case that indirect effects on parochial schools resulting

from the independent and private choice of parents are not

proscribed by the Establishment Clause.

[Footnote continued from previous page]

attend private and parochial schools; the schools are relieved

of no burden because the state enables these children to

attend classes.

24

CONCLUSION

"(I]t is doubtful that any child may reasonably be

expected to succeed in life if ... denied the opportunity of

an education." Brown v. Board of Education, 347 U.S.

483, 493 (1954). Poor students trapped in dangerous and

nonfunctioning public schools today suffer from a de facto

system of segregation no less oppressive than that at issue in

Brown. Access to quality private and parochial schools

offers a way out. Amici ask that this Court take care: to

reaffirm the constitutional principles that will allow help for

those who most need it.

Respectfully submitted,,

WILLIAM H. MELLOor III *MARK SNYDERMAN

CLINT BOLICK GIBSON, DUNN &

RICHARD D. KOMER CRUTCHER LLP

INSTITUTE FOR JUSTICE 1050 Connecticut Ave. , N.W.

1717 Pennsylvania Ave., N.W. Washington, D.C. 20036

Washington, D.C. 20006 (202) 955-8500

(202) 955-1300

*Counsel of Record