# Amicus Curiae Brief — Agostini v. Felton

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0024%3A32

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1141

## Text

FILEL

“
i AK

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

>t

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0024%3A32. Public record. Not legal advice.