Appendix — Zelman v. Simmons-Harris

® pene

No. 001751 may 23 200%

In the Supreme Court of the UottedeStates cep

SUSAN TAVE ZELMAN, Superintendent

of Public Instruction, et a/..

Petitioners,

Vv.

DORIS SIMMONS-HARRIS, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

BETTY D. MONTGOMERY

Attorney General of Ohio

DAVID M. GORMLEY

State Solicitor

KENNETH W. STARR JUDITH L. FRENCH*

ROBERT R.GASAWAY KAREN L. LAZORISHAK

Kirkland & Ellis Assistant Attorneys General

655 Fifteenth Street, N.W. 30 East Broad Street, 17" Fir.

Washington, DC 20005 Columbus, OH 43215-3428

(202) 879-5000 (614) 466-2872

*Counsel of Record

TABLE OF CONTENTS

PAGE

Appendix A

(U.S. Court of Appeals Opinion,

dated December 11, 2000)..............ccccccssssssseeseeeeeeseeees la

Appendix B

(U.S. District Court, Northern District of Ohio,

Eastern Division, Judgment Entry, dated

eg | 59a

Appendix C

(U.S. District Court, Northern District of Ohio,

Eastern Division, Order,

dated December 20, 1999).............ccccccccssssssssssseceeeees 6la

Appendix D

(U.S. Supreme Court, Case No. 99A320,

Order in Pending Case, dated November 5, 1999). 127a

Appendix E

(U.S. District Court, Northern District of Ohio,

Eastern Division, Order, dated August 27, 1999) .. 128a

Appendix F

(U.S. District Court, Northern District of Ohio,

Eastern Division, Order, dated August 24, 1999) .. 133a

Appendix G

(U.S. Court of Appeals, Case No. 00-3055/3060

/3063, Order denying rehearing,

Gated February 28, 2001 ).......cccccccsssesscccesessoosscseees 166a

Appendix H

(Ohio Rev. Code 3313.974)........ccsscccsssesseseseeeeenees 168a

iia

Appendix I

(Ohio Rev. Code 3313.975)........cccccccssessseseseseeesees 170a

Appendix J

(Ohio Rev. Code 3313.976)..........ccccsccseeeeeeeeeeseees 173a

Appendix K

(Ohio Rev. Code 3313.977).......cccccsscssseesscesseeseeeees 176a

Appendix L

(Ohio Rev. Code 3313.978).........ccscsssseesseseeeeeeeees 178a

Appendix M

(Ohio Rev. Code 3313.979).........cccccceseseeeeseeeeeeeeee 183a

Appendix N

(Ohio Rev. Code 3314.01)..........cccccsssesercserseseeeeees 186a

Appendix O

(Ohio Rev. Code 3314.02).........::cccsccseseseeseseeeeeeees 189a

Appendix P

(Ohio Rev. Code 3314.04).........ccsssseeesseesseeeseeenes 194a

Appendix Q

(Ohio Rev. Code 3314.06).......... heseusevestesnssessenensesss 195a

Appendix R

(Ohio Rev. Code 3314.1 1).......cscseseeessseesereeeeeees 197a

Appendix S

(Ohio Rev. Code 3314.12)........scsscccsrsseresseeesseeeees 198a

a I

Appendix A

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0411P (6" Cir.)

File Name: 00a0411p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DORIS SIMMONS-HARRIS;

MARLA FRANKLIN; STEVEN _ :

BEHR, Rev.; SUE GATTON; Nos. 00-3055/

MARY MURPHY; MICHAEL : 3060/3063

DEBOSE; CHERYL DEBOSE;

GLENN ALTSCHULD; DEIDRA

PEARSON,

Plaintiffs-Appellees,

Vv.

SUSAN TAVE ZELMAN,

Superintendent of Public Instruction, :

State of Ohio, et al.,

Defendants-Appellants

(00-3055/3060),

SENEL HERMAN TAYLOR, et al., :

Intervenors-Defendants-

Appellants (00-3055),

HANNA PERKINS SCHOOL, et al.,:

Intervenors-Defendants-

Appellants (00-3063 ).

2a

Appeal from the United States District Court

For the Northern District of Ohio at Cleveland.

Nos. 99-01740, 99-018 18—Solomon Oliver, Jr.,

District Judge.

Argued: June 20, 2000

Decided and Filed: December 11, 2000

Before: RYAN, SILER, and CLAY, Circuit Judges.

COUNSEL

ARGUED: Clint Bolick, INSTITUTE FOR JUSTICE,

Washington, D.C., Edward B. Foley, OFFICE OF THE

ATTORNEY GENERAL OF OHIO, Columbus, Ohio, David

J. Young, SQUIRE, SANDERS & DEMPSEY, Columbus,

Ohio, for Appellants. Robert H. Chanin, BREDHOFF &

KAISER, Washington, D.C., Marvin E. Frankel, KRAMER,

LEVIN, NAFTALIS & FRANKEL, New York, New York,

for Appellees. ON BRIEF: Clint Bolick, Matthew Berry,

INSTITUTE FOR JUSTICE, Washington, D.C., David C.

Tryon, PORTER, WRIGHT, MORRIS & ARTHUR,

Cleveland, Ohio, Edward B. Foley, Karen L. Lazorishak,

Roger F. Carroll, James G. Tassie, Mary Lynn Readey,

OFFICE OF THE ATTORNEY GENERAL, Columbus,

Ohio, David J. Young, Michael R. Reed, SQUIRE,

SANDERS & DEMPSEY, Columbus, Ohio, for Appellants.

Robert H. Chanin, Andrew D. Roth, BREDHOFF &

KAISER, Washington, D.C., David G. Latanick,

CLOPPERT, PORTMAN, SAUTER, LATANICK &

FOLEY, Columbus, Ohio, Elliot M. Mincberg, Judith E.

Schaeffer, PEOPLE FOR THE AMERICAN WAY,

3a

Washington, D.C., Raymond Vasvari, ACLU OF OHIO

FOUNDATION, INC., Cleveland, Ohio, Steven K. Green,

AMERICANS UNITED FOR SEPARATION OF CHURCH

AND STATE, Washington, D.C., Marvin E. Frankel,

KRAMER, LEVIN, NAFTALIS & FRANKEL, New York,

New York, for Appellees. William E. Thro, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, M.

Reed Hopper, PACIFIC LEGAL FOUNDATION,

Sacramento, California, Paul Clement, KING & SPALDING,

Washington, D.C., Victoria W. Ni, REBOUL,

MACMURRAY, HEWITT, MAYNARD & KRISTOL, New

York, New York, Joshua R. Cohen, KAHRMAN, JACKSON

& KRANTZ, Cleveland, Ohio, Nicholas A. Pittner,

BRICKER & ECKLER, Columbus, Ohio, for Amici Curiae.

CLAY, J., delivered the opinion of the court, in which

SILER, J., joined. RYAN, J. (32-53), delivered a separate

opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge. Defendants and Intervenors

Dr. Susan Tave Zelman, eft al.; Senel Taylor, et al.; and

Hanna Perkins School, et al., appeal from the order entered

by the United States District Court for the Northern District

of Ohio, enjoining on summary judgment the Ohio Pilot

Project Scholarship Program on the ground that it violates the

Establishment Clause of the First Amendment. For the

following reasons, we AFFIRM.

In 1995, Ohio’s General Assembly adopted the Ohio

Pilot Project Scholarship Program (“voucher program” or

4a

“the program”) in response to an order by the United States

District Court that placed the Cleveland School District under

the direct management and supervision of the State

Superintendent of Public Instruction due to mismanagement

by the local school board. The voucher program covers any

state school district that has been the subject of a federal

court order “requiring supervision and operational

management of the district by the state superintendent.”

Ohio Rev. Code § 3313.975(A). The program provides

scholarships to children residing within the applicable district

in grades kindergarten through eighth grade. See Ohio Rev.

Code § 3313.975(C)(1). The program gives “preference to

students from low-income families,” defining them as those

whose families’ income is less than 200% of the poverty line.

See Ohio Rev. Code § 3313.978(A). “Scholarships may be

awarded to students who are not from low-income families

only if all students from low-income families have been

given first consideration for placement.” Cleveland

Scholarship and Tutoring Program, Administration

Procedures Manual, |-11 (J.A. at 1358) (emphasis original).

Over sixty percent of the children receiving scholarships in

the program are from families with incomes at or below the

poverty line.

The voucher program pays scholarships according to

family income. The program requires participating private

schools to cap tuition at $2500 per student per year and pays

90% of whatever tuition the school actually charges for low-

income families; for other families, the State pays 75% of the

school’s tuition up to a maximum of $1875. See Ohio Rev.

Code §§ 3313.976(A)(8), 3313.978(A). Each scholarship for

children attending a private school is payabie to the parents

of the student entitled to the scholarship. Ohio Rev. Code §

3313.979. Scholarship checks are mailed to the school

selected by the parents, where the parents are required to

endorse the checks over to the school in order to pay tuition.

Sa

Schools wishing to be designated as program

participants eligible to enroll scholarship students must

register with the voucher program. Private schools located

within the boundaries of the Cleveland school district which

meet the State’s educational standards may participate. See

Ohio Rev. Code § 3313.976(A)(1) and (3). Schools are

required to follow the program’s priority rules regarding the

placement of students and may not discriminate on the basis

of race, religion, or ethnic background; advocate or foster

unlawful behavior; or teach hatred of any person or group on

the basis of race, ethnicity, national origin, or religion. See

Ohio Rev. Code § 3313.976(A)(6). Public schools in

districts adjacent to the district in which the voucher program

is implemented may also register for the program and

“receive scholarship payments on behalf of parents,” but

none of the public schools in districts adjacent to Cleveland

have done so. Ohio Rev. Code § 3313.976(C). The checks

for program participants at public schools are made out to the

participating school district rather than to the parents. No

public schools have registered for the program since its

enactment.

For the 1999-2000 school year, 3,761 students

enrolled in the program; 60% of the enrollees are from

families at or below the poverty level. Of these, 3,632 (96%)

are enrolled in sectarian schools. At one time in the course

of the program, as many as 22% of the students enrolled in

the program attended nonreligious schools. During the 1999-

2000 school year, fifty-six schools registered to participate in

the program; forty-six (82%) are church-affiliated. Program

monies may be used by the participating schools for

whatever purpose they deem appropriate; the voucher

program does not place restrictions on the use of funds made

available under the program.

6a

The sectarian schools vary in their religious affiliation

and approaches; however, the handbooks and mission

statements of these schools reflect that miost believe in

interweaving religious beliefs with secular subjects. The

sectarian schools also follow religious guidelines, including

instruction in religion and mandated participation in religious

services; interweaving of Christian doctrines with science

and language arts classes; requiring that “all learning take

place in an atmosphere of religious ideals,” St. Vincent de

Paul School, Parent Handbook 11 (1999-2000); and

designing educational scholarship in order “to make ... faith

become living, conscious, and active through the light of

instruction ... religious truths and values permeate the whole

atmosphere of the school.” Saint Rocco School, Parent-

Student Handbook | (1999-2000). Other sectarian schools in

the voucher program believe that “the one cardinal objective

of education to which all others point is to develop devotion

to God as our Creator, Redeemer, and Sanctifier,” Saint John

Nottingham Lutheran School, Parent Handbook 2 (1999-

2000); and to require students to “pledge allegiance to the

Christian flag and to the Savior for whose Kingdom it stands,

One Savior crucified, risen and coming again with life and

liberty for all who believe.” Calvary Center Academy,

Parent-Student Handbook 24 (1999-2000).

In prior litigation, Doris Simmons-Harris, one of the

Plaintiffs herein, brought a state court lawsuit challenging the

constitutionality of the voucher program under multiple

provisions of the Ohio Constitution, and under the

Establishment Clause of the United States Constitution. On

May 27, 1999, the Ohio Supreme Court issued a judgment in

favor of Plaintiffs, holding that the 1995 voucher program

had been enacted in violation of the one-subject rule of the

Ohio Constitution, and “must be stricken” from the Ohio

statute books. See Simmons-Harris v. Goff, 711 N.E.2d 203,

216 (Ohio 1999). However, a majority of the justices

Ta

rejected Plaintiffs’ claims that the program violated the

Establishment Clause. /d. at 207-11, 218-19. Those justices

reasoned that “(t]he Nyquist holding [had been] undermined”

by subsequent cases and was thus no longer good law. /d. at

208. A concurring opinion noted that “[w]ith regard to the

rest of the majority opinion [the section not dealing with the

one-subject rule], ... I find a number of the other assertions

by the majority to be advisory in nature.” /d. at 216

(Douglas, J., joined by Resnick and Sweeney, JJ., concurring

in the judgment only). Since this case, the Ohio Legislature

has re-enacted the voucher program in a manner remedying

the one-subject problem; however, the 1999 program is in all

relevant aspects, the same as the original pilot scholarship

program enacted by the Legislature in 1995.

On July 20, 1999, Simmons-Harris, the parent of a

minor child enrolled in the Cleveland City School District for

the 1999-2000 school year; Marla Franklin, a teacher in the

Lorain City School District; and Steven Behr, pastor of Our

Savior/Nuestro Salvado Church in Lorain, Ohio, filed suit in

Case No. 1:99cv1740, against Defendant Dr. Susan Tave

Zelman in her official capacity as Superintendent of Public

Instruction for the Ohio Department of Education, seeking to

enjoin a portion of the program on the ground that it violated

the Establishment Clause of the First Amendment. On July

29, 1999, Sue Gatton, chair of Citizens Against Vouchers;

Mary Murphy, a teacher in the Cleveland City School

District; Michael Debose, a pastor in Cuyahoga County,

Ohio; Cheryl Debose and Glen Altschuld, Ohio Taxpayers;

and Deidra Pearson, the parent of a child enrolled in the

Cleveland City School District, filed suit in Case No.

1:99cv1818 against Defendants Dr. Susan Tave Zelman, in

her official capacity as Superintendent; the State of Ohio

through its General Assembly, Governor and other agents;

and Saundra Berry, in her official capacity as Program

Se

8a

Administrator of the Ohio Pilot Scholarship Program,

seeking the same injunctive relief as in Case No. 1:99cv1740.

Proposed Intervenors Senel Taylor, Johnnietta

McGrady, Christine Suma, Arkela Winston, and Amy

Hudock, on their own behalf and as natural guardians of their

respective children, filed an answer to Simmons-Harris’

complaint on July 27, 1999. Proposed Intervenors Hanna

Perkins School, Ivy Chambers, Carol Lambert, Our Lady of

Peace School, Westpark Lutheran School Association, Inc.,

Lutheran Memorial Association of Cleveland, and Delores

Jones, filed an answer to Simmons-Harris’ complaint on

August 2, 1999,

On August 13, 1999, the district court held a

preliminary injunction hearing in both cases, and on August

24, 1999, granted Plaintiffs the injunctive relief sought. In

the same order, the district court consolidated the two cases,

and found that the Ohio Supreme Court’s decision in

Simmons v. Gof | N.E.2d 203 (Ohio 1999), did not

preclude federal. _..Jderation of the constitutional challenge

to the voucher program because the Ohio court’s decision

rested on a state ground which independently supported its

resolution of the case. Thereafter, on August 27, 1999, the

district court granved in part Defendants’ motion for a stay of

the preliminary injunction.

On August 24, 1999, the same day that the district

court granted Plaintiffs’ motion for a preliminary injunction,

the State and the two intervening Defendants appealed that

decision to this Court. After the district court’s August 27,

1999, order granting a limited stay of its preliminary

injunction, all Defendants filed revised briefs with this Court,

appealing the preliminary injunction with regard to students

who were new to the voucher program—i.e., the portion of

the preliminary injunction not stayed by the district court's

9a

August 27, 1999 order. While those appeals were pending,

the State filed a motion for a stay of the preliminary

injunction with the United States Supreme Court, which the

Supreme Court granted by a vote of 5-4 on November 5,

1999, pending this Court’s final disposition of the entire

appeal. See Simmons-Harris v. Zelman, 120 S. Ct. 443

(1999). Thereafter, this Court entered an order on November

15, 1999, concluding that the Supreme Court’s decision

granting the State’s motior for a stay rendered moot

Defendants’ pending motions for a stay in this Court. The

case proceeded in the district court on an expedited basis.

On October 15, 1999, all parties stipulated that the

handbooks, mission statements and brochures of the schools

participating in the Cleveland scholarship program are

“authentic, speak for themselves, have been made available

to the parents of the scholarship students and are not false or

misleading. Some of these documents however may not

accurately reflect admission standards that had to be

revised.” Plaintiffs and Defendants both filed motions for

summary judgment on November |, 1999.

On November 29, 1999, the district court denied

Intervenor Taylor’s motion to have the following question

certified to the Ohio Supreme Court: “Does Ohio law give

preclusive effect to the resolution of the Establishment

Clause claim in Simmons-Harris v. Goff, 711 N.E.2d 203

(Ohio 1999)?”

The district court granted Plaintiffs’ motion for

summary judgment on December 20, 1999, finding that the

voucher program violated the Establishment Clause; enjoined

Defendants from administering the program; and denied

Defendants’ motion for summary judgment. See Simmons-

Harris v. Zelman, 72 F. Supp.2d 834, 836 (N.D. Ohio 1999).

The court stayed its summary judgment order with Plaintiffs’

10a

consent pending review by this Court. Defendants and

Intervenors appealed to this Court on January !2, 2000.

We recognize the significance that this issue holds for

many members of our society. The issue of school vouchers

has been the subject of intense political and public

commentary, discussion, and attention in recent years, and

we would be remiss if we failed to acknowledge the

seriousness of the concerns this case has raised. We do not,

however, have the luxury of responding to advents in

educational policy with academic discourse on practical

solutions to the problem of failing schools; nor may we

entertain a discussion on what might be legally acceptable in

a hypothetical school district. We may only apply the

controlling law to the case and statute before us.

The courts do not make educational policy; we do not

sit in omnipotent judgment as to the efficacy of one scheme

or program versus another. The design or specifics of a

program intended to remedy the problem of failing schools

and to rectify educational inequality must be reserved to the

states and the school boards within them, with one caveat:

the proposed program may not run afoul of the freedoms

guaranteed to all citizens in the Constitution. In other words,

the determinations of states and school boards cannot

infringe upon the necessary separation between church and

state. We therefore consider the program presented before us

under the controlling precedents of the United States

Supreme Court and this Court to determine whether such

infringement has occurred.

This Court reviews the district court’s grant of

summary judgment de novo. See Coles v. Cleveland Bd. of

Educ., 171 F.2d 369, 376 (6" Cir. 1999). Summary

judgment is proper when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). There is

no genuine issue of material fact when the “record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

The Establishment Clause provides that “Congress

shall make no law respecting an establishment of religion....”

U.S. Const., amend. 1. In Lemon v. Kurtzman, 403 U.S. 602,

612-13 (1971), the Supreme Court set forth the following test

to determine whether a statute passes muster under the

Establishment Clause: 1) the statute must have a secular

legislative purpose; 2) the principal or primary effect of the

statute must be one that neither advances nor inhibits

religion; and 3) the statute must not foster excessive

entanglement with religion. If a statute fails any portion of

this test, it violates the Establishment Clause. /d. The

Supreme Court has applied the Lemon test regularly in the

context of schools and education. See, e.g., Kiryas Joel Sch.

Dist. v. Gromet, 512 U.S. 687 (1994) (drawing a separate

school district for one religion violates the Establishment

Clause); Stone v. Graham, 449 U.S. 39 (1989) (posting Ten

Commandments on walls of public school violates

Establishment Clause); Bowen v. Kendrick, 487 U.S. 589

(1988) (holding that Establishment Clause does not prevent

religious organizations from participating in federally funded

program); Edwards v. Aguillard, 482 U.S. 578 (1987)

(overturning statute which required the teaching of

Creationism in public schools); Aguilar v. Felton, 473 U.S.

402 (1985) (paying public school employees to teach in

parochial school violates the Establishment Clause),

overruled by Agostini v. Felton, 521 U.S. 203 (1997); Grand

12a

Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) (finding a

shared time program to be a violation of Establishment

Clause), overruled by Agostini v. Felton, 521 U.S. 203

(1997); Mueller v. Allen, 463 U.S. 388 (1983) (permitting

taxpayers to deduct from state income tax expenses incurred

in sending children to parochial schools does not violate

Establishment Clause); Roemer v. Bd. of Pub. Works, 426

U.S. 736 (1976) (finding no violation of Establishment

Clause in providing government aid to both public and

private universities).

The Supreme Court and individual justices have

introduced variations on the Lemon test in other contexts.

See Lee v. Wiseman, 505 U.S. 577, 592-98 (1992) (using

coercion test developed by Justice Kennedy to hold that

schoo! could not provide for nonsectarian prayer to be given

at graduation by school-selected clergyman); County of

Allegheny v. ACLU, 492 U.S. 573, 594-602, 655-79 (1989)

(using two-part test developed by Justice O’Connor—

Establishment Clause is violated when 1) government is

excessively entangled with religion, or 2) government

endorses or disapproves of religion—as part of the Lemon

test regarding government displays of objects with religious

connotations; introducing Justice Kennedy’s two-part

coercion test — 1) government may not coerce participation in

religion, and 2) government may not directly benefit religion

— in his concurrence); Wallace v. Jaffree, 472 U.S. 38, 56 &

n.42 (1985) (using Justice O’Connor’s two-part test as part of

the Lemon analysis and finding it appropriate to determine

whether the government’s purpose is to endorse or

disapprove of religion); Lynch v. Donnelly, 465 U.S. 668,

687-94 (1984) (introducing Justice O’Connor’s two-part

test).

In Agostini v. Felton, 521 U.S. 203 (1997), the Court

reaffirmed the importance of the Lemon test in Establishment

as eM i ne NR a an a. ann leat mana cesar anatase temas

13a

Clause cases involving school aid, but noted that the

entanglement prong could be considered as an aspect of the

effects inquiry. Agostini found “three primary criteria” used

by the Court in evaluating whether government aid has the

effect of advancing religion: whether the statute or programs

in question “result in governmental indoctrination; define its

recipients by reference to religion; or create an excessive

entanglement.” /d. at 234.

The Supreme Court has not overturned or rescinded

the Lemon test even as it has used its framework to shape

differing analyses. Although in Agostini, the Court

articulated the primary criteria it would utilize to determine

whether a government-aid program impermissibly advanced

or endorsed religion, the Court has not necessarily limited

itself to considering solely those criteria. Rather, it seems

evident that the Agostini Court illustrated the Lemon test's

flexibility and its evolution from the relatively rigid three-

part test to an approach in which the varying components of a

particular program or statute are analyzed with regard to their

impact on, in the context of schools, the relevant students or

communities. We therefore look to these components as

aspects of the proper analysis under Lemon, but acknowledge

that precedent does not limit itself to only these components

should other components previously utilized by the Court be

relevant, such as coercion of citizens, endorsement of

religion, and direct benefit to religion. See Mitchell v. Helms,

120 S. Ct. 2530, 2556 (2000) (O’Connor, J., concurring)

(finding that Agostini represents a general framework for

approaching questions concerning neutral school-aid

programs but recognizing that these types of cases depend on

the particular facts of each case).

Of the cases which follow Lemon, we find the most

persuasive, in that it is on point with the matter at hand, to be

Committee for Public Education v. Nyquist, 413 U.S. 756

l4a

(1973). In Nyquist, a New York State statute established,

among other aid, a tuition grant program which provided for

partial tuition reimbursement to low-income parents whose

children attended private elementary or secondary schools.

See id. at 761-70. The tuition reimbursement plan applied to

parents of children who attended any private school, not

solely sectarian schools, and was limited to 50% of tuition

paid. /d. at 764. At the time the plan was challenged, nearly

20% of New York’s school-age children attended nonpublic

schools, and approximately 85% of these schools were

sectarian. /d. at 768. The Nyquist Court noted that although

“the characteristics of individual schools may vary widely

from [the] profile,” institutions which qualified for assistance

under the statute were ones that included religious instruction

and requirements as part of their academic curriculum. See

id. at 767-68.

Following Lemon, the Nyquist Court found that the

New York statute passed the first prong of the Lemon test—

whether the statute had a secular purpose—because the

tuition reimbursement program promoted pluralism and

diversity among New York’s public and private schools, and

alleviated concern that the State’s overburdened public

schools would be harmed if a large number of children who

had previously been attending private schools decided to

return to the public schools. See 413 U.S. at 773. The Court

did “not question the propriety, and fully secular content, of

New York’s interest in preserving a healthy and safe

educational environment for all of its schoolchildren.” /d.

Under the second prong of the Lemon test—that the

statute neither advance nor inhibit religion—the New York

statute did not fare as well. The Court next found that the

New York reimbursement program failed because “[I]n the

absence of an effective means of guaranteeing that the state

aid derived from public funds will be used exclusively for

15a

secular, neutral, and nonideological purposes, it is clear from

our cases that direct aid in whatever form is invalid.” 413

U.S. at 780. The Court opined that the fact that program

grants were delivered to parents rather than schools was

“only one among many factors to be considered.” /d. at 781.

The Court rested its analysis on the premise that there had

been “‘no endeavor to guarantee the separation between

secular and religious educational functions and to ensure the

State financial aid supports only the former.’” /d. at 783

(quoting Lemon, 403 U.S. at 613). “By reimbursing parents

for a portion of their tuition bill, the State seeks to relieve

their financial burdens sufficiently to assure that they

continue to have the option to send their children to religion-

oriented schools.” /d. The Court noted that “while the other

purposes for that aid—to perpetuate a pluralistic educational

environment and to protect the fiscal integrity of

overburdened public schools—are certainly unexceptionable,

the effect of the aid is unmistakably to provide desired

financial support for nonpublic, sectarian institutions.” /d.

The Nyquist Court also recognized and discarded the

state’s arguments that it was of controlling significance that

New York’s program called for reimbursement of tuition

already paid, thus ensuring that the parent is free to spend

that tuition money in any manner he or she sees fit. 413 U.S.

at 785-86. “[I]f the grants are offered as an incentive to

parents to send their children to sectarian schools by making

unrestricted cash payments to them, the Establishment Clause

is violated.... Whether the grant is labeled a reimbursement,

a reward, or a subsidy, its substantive impact is still the

same.” /d. at 786. The Court also rejected the state's

argument that the plan paid for only a portion of the tuition at

a sectarian school, saying “if accepted, this argument would

provide the foundation for massive, direct subsidization of

sectarian elementary and secondary schools.” /d. at 787.

16a

The cases of Everson v. Board of Education, 330 U.S.

1 (1947), and Board of Education v. Allen, 392 U.S. 236

(1968) were carefully distinguished by the Court. In

Everson, the Court upheld tax deductions for parents who

expended bus fare for children who attended religious

schools, reasoning that the bus fare program was analogous

to the provision of services such as police and fire protection,

sewage disposal, highways and sidewalks for parochial

schools. See 330 U.S. at 17-18. The Court found that these

services, common to all citizens, are “so separate and so

indisputably marked off from the religious function, that they

may fairly be viewed as reflections of a neutral posture

toward religious institutions.” /d. at 18. In Allen, the Court

upheld a statute which allowed secular textbooks to be

provided to children attending religious schools, finding that

“the State claims no right to distribute religious literature,”

and noting that “we cannot assume that school authorities ...

are unable to distinguish between secular and religious

books.” 392 U.S. at 244-45. The Nyquist Cour

distinguished these two cases not only based on their neutral

posture toward religion, but on the fact that in both of those

cases, “the class of beneficiaries included all schoolchildren,

those in public as well as those in private schools.” 413 U.S.

at 782 n.38, (citing Tilton v. Richardson, 403 U.S. 672

(1970) (making federal aid available to all institutions of

higher learning)).

The Court noted that unlike in Everson and Allen, the

tuition grants in Nyquist were not a neutral attempt to provide

comparable benefits to all parents of schoolchildren whether

enrolled in public or nonpublic schools, as the “grants to

parents of private schoolchildren are given in addition to the

right that they have to send their children to public schools

totally at state expense.” 413 U.S. at 782 n.38 (internal

quotations marks omitted). The Court additionally

determined that this argument of neutrality, if upheld, would

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be overly broad, providing “a basis for approving through

tuition grants the complete subsidization of all religious

schools on the ground that such action is necessary if the

State is fully to equalize the position of parents who elect

such schools—a result wholly at variance with the

Establishment Clause.” /d.

The Supreme Court has revisited many of the issues

raised in Nyquist. In Agostini v. Felton, 521 U.S. 203, 237

(1997), the Court stated that “[w]Je do not acknowledge, and

we do not hold, that other courts should conclude our more

recent cases have, by implication, overruled an earlier

precedent.” The Court continued to reaffirm “that if a

precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the case which

directly controls, \eaving to this Court the prerogative of

overruling its own decisions.” /d. (emphasis added). The

Supreme Court has refrained from overruling Nyquist, and

has instead distinguished various cases on the basis of their

facts; this Court has accordingly followed that approach. “A

single factual difference consequently can serve to entangle

or free a particular governmental practice from the reach of

the [Establishment] Clause’s constitutional prohibition.”

Coles, 171 F.3d at 376. We therefore look to relevant case

law to assist us by analogy in analyzing the factual

discrepancies between this case and Nyquist.

In Mueller v. Allen, 463 U.S. 388 (1983), the Court

found constitutional a Minnesota statute which allowed state

taxpayers to deduct on their state income tax certain tuition,

transportation and educational expenses of their children

attending elementary or secondary schools. Following the

Lemon test, the Court agreed that the statute had the secular

purpose of defraying the cost of education for all parents,

regardless of the type of school their children attend. /d. at

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395. Analyzing the effect of the statute, the Court held that

the program did not have a primary effect of advancing

religion because the tax deduction was a traditional area for

state legislatures to codify -policies which “achieve an

equitable distribution of the tax burden,” and because the

deduction was available for educational expenses incurred by

all parents, whether their children attended public schools,

nonsectarian private schools, or church-affiliated schools. /d.

at 396-98.

The Court found it compelling that the deduction was

available for all parents with school age children, stating that

this aspect was “vitally different from the scheme struck

down in Nyquist. There, public assistance amounting to

tuition grants was provided only to parents of children in

nonpublic schools.” /d. at 398. The Court analogized the tax

deduction scheme as similar to the G.I. Bill, or other forms of

“public assistance made available generally without regard to

the sectarian-nonsectarian, or public-nonpublic nature of the

institution benefitted.” /d. The Court found it significant

that under the Minnesota plan, governmental aid was only

channeled through the parents, rather than directly paid to the

parochial institutions, and noted that it would not base the

constitutionality of a statute on the consideration of yearly

statistical evidence concerning which nonsectarian schools—

religious or otherwise—benefitted from the tax deduction.

Id. at 401. The Court stated that the Establishment Clause is

not a bar to “the som of attenuated financial benefit,

ultimately controlled by the private choices of individual

parents, that eventually flows to parochial schools from the

neutrally available tax benefit at issue in this case.” /d. at

400.

In Witters v. Washington Department of Services for

the Blind, 474 U.S. 481 (1986), the Supreme Court found

constitutional a Washington State program which provided

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vocational rehabilitation assistance grants to a_ blind

individual who attended a Christian college in the hope of

becoming a pastor. The Court found the statute’s purpose

“unmistakably secular,” id. at 486, and found that unlike

Nyquist, “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.” /d. at 488. The fact that the vocational

assistance was paid directly to the student, who could expend

the educational funds on “wholly secular education,”

persuaded the Court to find that the program did not create an

incentive to apply the aid to religious education. Jd. “Aid

recipients’ choices are made among a huge variety of

possible careers, of which only a small handful are

sectarian.... Nothing in the record indicates that ... any

significant portion of the aid expended under the Washington

program as a whole will end up flowing to religious

education.” /d. The Court also found that “the mere

circumstance that petitioner has chosen to use neutrally

available state aid to help pay for his religious education

[does not] confer any message of state endorsement of

religion.” /d. at 489.

In Agostini v. Felton, the Court held that the

Establishment Clause did not bar a New York program which

sent public school teachers into parochial schools to provide

remedial education to disadvantaged children. Recognizing

that there had been significant changes in Establishment

Clause jurisprudence, the Court found that it could no longer

presume “that the placement of public employees on

parochial school grounds inevitably results in the

impermissible effect of state-sponsored indoctrination or

constitutes a symbolic union between government and

religion.” 521 U.S. at 223. The Court noted that those direct

aid programs where grants are “made available generally

without regard to the sectarian-nonsectarian, or public-

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nonpublic nature of the institution benefitted [are valid

departures from the general rule] that all government aid that

directly aids the educational function of religious schools is

invalid.” /d. at 225. Relying on an earlier case which had

found it permissible to place a public school sign language

interpreter into a private parochial school under the

Individuals with Disabilities Education Act, 20 U.S.C. §

1400, the Court determined that these instances involve

situations where money ultimately goes to religious schools

“only as a result of the genuinely independent and private

choices of individuals.” /d. at 225-26 (citing Zobrest v.

Catalina Foothills Sch. Dist., 509 U.S. 1 (1993)). The Court

noted as a central part of its analysis that the services

provided by public school employees were remedial, stating

that the “services do not, therefore, reliev[e] sectarian schools

of costs they otherwise would have borne in educating their

students.” /d. at 228. The Court concluded that the New

York program services “are available to all children who

meet the Act’s eligibility requirements, no matter what their

religious beliefs or where they go to school.” /d. at 232.

The Supreme Court revisited this issue this past term.

By a plurality, the Court upheld a program to loan

educational materials and equipment to private religious

schools which channeled federal funds through state

agencies. See Mitchell v. Helms, 120 S. Ct. 2530 (2000).

Writing for four justices, Justice Thomas concluded that the

critical question in cases of government aid to religious

schools is whether the government aid is neutral: whether it

results from the genuinely independent and private choices of

individual parents. See id. at 2541-44. Justice Thomas noted

that the nexus between neutrality and private choice was the

prominent, even the chief factor, in upholding government

aid in Agostini, Zobrest, Witters, and Mueller, and found that

there is a close relationship between private choice and the

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question of whether a program creates a financial incentive to

undertake religious schooling. See id. at 2543.

The opinion goes on to state that “[i]f aid to schools,

even direct aid, is neutrally available and, before reaching or

benefitting any religious school, first passes through the

hands (literally or figuratively) of numerous private citizens

who are free to direct the aid elsewhere, the government has

not provided any support of religion.” 120 S. Ct. at 2544

(internal citations omitted). The opinion recognizes that

there exist “special Establishment Clause dangers when

money is given to religious schools or entities directly rather

than, as in Witters and Mueller, indirectly.” Jd. at 2546

(internal citations omitted). In a footnote, Justice Thomas

hypothesized “that the principles of neutrality and private

choice would be adequate to address those special risks.” /d.

at 2547 n.8. He continued to find that at least in regards to

Nyquist, the prohibition against direct payments was linked

to “serious concerns about whether the payments were truly

neutral.” /d.

Although Justice O’Connor concurred in the

judgment, she wrote separately in Mitchell based upon her

belief that “the plurality announces a rule of unprecedented

breadth for the evaluation of Establishment Clause

challenges to government school-aid programs.” 120 S. Ct.

at 2556. Justice O’Connor’s concurring opinion shows

disagreement not only with the “expansive scope of the

plurality’s rule[,J” but with two specific aspects of its

analysis. /d. First, she found the plurality’s “treatment of

neutrality comes close to assigning that factor singular

importance in the future adjudication of Establishment

Clause challenges to government school-aid programs.” /d.

Second, she found “the plurality’s approval of actual

diversion of government aid to religious indoctrination is in

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tension without precedents and ... unnecessary to decide the

instant case.” /d.

While agreeing with Justice Thomas that “neutrality

is an important reason for upholding government-aid

programs against Establishment Clause challenges,” Justice

O'Connor opined that “neutrality is not alone sufficient to

qualify the aid as constitutional.” 120 S. Ct. at 2557-58. She

criticized Justice Thomas’s opinion for relying on logic

which would support direct government aid to religious

organizations based on the number of persons belonging to

each organization. “[T]he plurality opinion foreshadows the

approval of direct monetary subsidies to religious

organizations, even when they use the money to advance

their religious objectives.” /d. at 2560. Justice O'Connor

rejected an outright ban on any diversion of government

funds to sectarian uses, but would enact a rule which requires

plaintiffs to prove that the aid in question is, or has been,

used for religious purposes, and found that “presumptions of

religious indoctrination are normally inappropriate when

evaluating neutral school-aid programs under the

Establishment Clause.” /d. at 2567.

Justice O'Connor concluded that because the school-

aid program in Agostini was similar to that at issue in

Mitchell, the Agostini criteria should control the outcome of

the case; however, she noted that the “school-aid cases often

pose difficult questions at the intersection of the neutrality

and no-aid principles and_ therefore defy simple

categorization under either rule.” 120 S. Ct. at 2560.

In regard to Mitchell and its sharply divided plurality,

we note that “[w]hen a fragmented Court decides a case and

no single rationale explaining the result enjoys the assent of

five Justices, ‘the holding of the Court may be viewed as that

position taken by those Members who concurred in the

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judgments on the narrowest grounds."” Marks v. United

States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia,

428 U.S. 153, 169 n.15 (1976)). Accordingly, we find that

the opinion of Justice O'Connor is the narrower of the

plurality, as it utilizes the standard of Agostini based on a

factual similarity rather than creating a new standard centered

on neutrality, thereby making its mandates controlling.

We now apply the framework established by

precedent to the case before us, recognizing the

predominating theme in this area of law to be the need for

careful judicial attention to the factual detail in the

challenged statutory scheme.

At the outset, we note that Defendants’ argument

concerning other options available to Cleveland parents such

as the Community Schools is at best irrelevant. Analyzing

the scholarship program choices as compared to choices or

schools outside the program is asking this Court to examine

the entire context of Ohio education. Such a question is not

before this Court. The Defendants’ argument would rewrite

the law to require that the courts look to all possible

alternatives to a challenged program, thus visiting issues of

legisiative choice and educational policy which no plaintiff

has raised.

At oral argument, Defendants asserted repeatedly that

the Community Schools program should be considered

coterminous with the voucher program, arguing that the

programs are merely separate sections in the statute.

However, the statutory record does not support this

argument, except for perhaps the literai meaning that the two

programs do indeed occupy separate sections in the Ohio

Code. The school voucher program is enacted as a complete

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program in the Ohio Revised Code. See Ohio Rev. Code §§

3313.974-3313.983. The program is enacted as a part of the

chapter on Boards of Education. See Ohio Rev. Code §

3313.01 et seg. Furthermore, the school voucher program,

and only the school voucher program, was challenged by

Plaintiffs in this lawsuit. In contrast, Community Schools

program is codified in its own chapter. See Ohio Rev. Code

§§ 3314.01 et seg. It is similarly a complete program within

the Code: the statutory provisions govern all aspects of the

program without reference to the voucher program. We may

not view these two programs as inextricably interdependent

when the plain language of the statutory scheme

demonstrates the opposite. It is simply not the proper role of

the courts to change statutory construction by judicial fiat.

See Brogan v. United States, 552 U.S. 398, 408 (1998); Nat'l

Life and Accident Ins. Co. v. United States, 524 F.2d 559,

560 (6 Cir. 1975) (“The Courts ... do not have the power to

repeal or amend the enactments of the legislature even

though they may disagree with the result; rather it is their

function to give the natural and plain meaning effect to

statutes....""). Should we consider the Community Schools

program in our analysis of the constitutionality of the school

voucher program, we would open the door to a wide-reaching

analysis which would permit us to consider any and all

scholarship programs available to children who qualify for

the school voucher program: we would be considering and

comparing every available option for Cleveland children.

Such an analysis would expand our jurisdiction far beyond

the case at hand; we are presented only with the question of

whether the school voucher program violates the

Establishment Clause, and we must limit ourselves to that

issue, regardless of the temptations Defendants’ arguments

present.

We find that Nyquist governs our result. Factually,

the program at hand is a tuition grant program for low-

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income parents whose children attend private school parallel

to the tuition reimbursement program found impermissible in

Nyquist. Under both the New York statute in Nyquist, as

well as the Ohio Statute at issue, parents receive government

funds, either in direct payment for private school tuition or as

a reimbursement for the same, and in both cases, the great

majority of schools benefitted by these tuition dollars are

sectarian. The Nyquist Court itself found there to be no

distinction between “a reimbursement, a reward, or a

subsidy, [as in all three,] the substantive impact is still the

same.” 413 U.S. at 786. As in Nyquist, the Ohio program

contains no “effective means of guaranteeing that the state

aid derived from public funds will be used exclusively for

secular, neutral, and nonideological purposes.” Jd. at 780.

Here, there is clearly “no endeavor to guarantee the

separation between secular and religious functions and to

ensure that State financial aid supports only the former.” /d.

at 783. In both Nyquist and this case, there are no restrictions

on the religious schools as to their use of the tuition funds—

the funds may be used for religious instruction or materials as

easily as for erasers and playground equipment.

Despite the language of the statute, there is no

evidence that the tuition vouchers serve as a neutral form of

State assistance which would excuse the direct funding of

religious institutions by the state, despite the statute’s

language. Admittedly, the voucher program does not restrict

entry into the program to religious or sectarian schools, but

facial neutrality alone does not bring state action into

compliance with the First Amendment. See Church of the

Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534

(1993). The school voucher program is not neutral in that it

discourages the participation by schools not funded by

religious institutions, and the Cleveland program limits the

schools to which a parent can apply the voucher funds to

those within the program. Practically speaking, the tuition

26a

restrictions mandated by the statute limit the ability of

nonsectarian schools to participate in the program, as

religious schools often have lower overhead costs,

supplemental income from private donations, and

consequently lower tuition needs. See Martha Minow,

Reforming School Reform, 68 Fordham L. Rev. 257, 262

(1999) (finding that voucher funding levels typically

“approximate[] the tuition level set by parochial schools

[which] reflects subsidies from other sources”). In fact,

Defendants admit that there is incentive for private

nonsectarian schools to participate in the community schools.

program rather than in the school voucher program. See

Brief of State at 10. The evidence illustrates this point in that

82% of participating schools are sectarian, just as in Nyquist

where 85% of the participating schools were sectarian.

Beyond that, we note that the number of available places for

students in sectarian schools is higher than 82%, as many of

the sectarian schools are larger and provide a greater number

of places for children in the voucher program. Moreover,

close to 96% of the students enrolled in the program for the

1999-2000 school year attended sectarian institutions.

The alleged choice afforded both public and private

school participants in this program is illusory in that the

program's design does not result in the participation of the

adjacent public schools from outside the Cleveland school

district. Per pupil expenditures in the public schools arc

backed by $7,097 in public funding. See Brief of Senel

Taylor Intervenors at 17. At a maximum of $2,250, there is a

financial disincentive for public schools outside the district to

take on students via the school voucher program. Since its

inception, no public schools from outside Cleveland have

registered in the school voucher program, and there are no

spaces available for children who wish to attend a suburban

public school in place of a private school under the program.

27a

Therefore, the program clearly has the impermissible effect

of promoting sectarian schools.

This is not the type of case which would fall into the

exception to the Nyquist rules. Here, state assistance is only

available to those students who attend private schools—the

aid is clearly dependent on whether parents choose public or

private schools. That the majority of places available in the

program are for students attending sectarian schools is not

unpersuasive. This program provides incentives for parents

to choose schools other than mainstream public ones, but that

choice does not extend to schools outside of the program.

Students may not choose to attend community or magnet

schools using a voucher, they may not apply a voucher to

tuition at a private school outside the Cleveland School

District, and they may not receive a voucher for a private

school within the Cleveland School District which has not

registered as part of the program. Rather, the program

provides financial assistance for those parents who wish to

place their children in the particular private schools, mostly

religious, which take part in the program. We find such a

scheme directly akin to Nyquist’s offensive aid to only

private school students, and not an instance where “the class

of beneficiaries included all schoolchildren, those in public

as well as those in private schools.” 413 U.S. at 782 n.38.

The effect of this program, like Nyquist and unlike Mueller

and subsequent cases, is one where “public assistance

amounting to tuition grants was provided only to parents of

children in nonpublic schools.” Mueller, 463 U.S. at 398.

Contrary to the tax deduction generally available in

Mueller, the Ohio voucher program is available to curtail

only those expenses which students attending certain private

schools accrue. See 463 U.S. at 398 (distinguishing the

Mueller program from that in Nyquist because in Nyquist,

“tuition grants [were] provided only to parents of children in

28a

nonpublic schools”). The idea of parental choice as a

determining factor which breaks a government-church nexus

is inappropriate in the context of government limitation of

the available choices to overwhelmingly sectarian private

schools which can afford the tuition restrictions placed upon

them and which have registered with the program. The

absence of any meaningful public school choice from the

decision matrix yields a limited and restricted palette for

parents which is solely caused by state legislative structuring.

In contradistinction to Witters, a student under the

Ohio statute cannot apply state aid to any school he or she

chooses, including public schools, since under the Ohio

program, no public schools have enrolled, nor are likely to

enroll. Similarly, Agostini is inapposite because the services

made available to students at parochial schools through the

placement of public school teachers to teach secular subjects

were available to all qualifying students without regard to the

nature of the institution they attended. 521 U.S. at 232

(finding that under the New York program at issue in

Agostini, and unlike the Nyquist program, services “are

available to all children who meet the Act’s eligibility

requirements no matter ... where they go to school). While

the program upheld in Mitchell provided for the loan of

instructional equipment by state agencies to both public and

private schools, in this case aid predominantly flows directly

to the coffers of religious institutions. Unlike Mitchell, under

the Ohio statute, there are not “numerous private citizens

who are free to direct the aid elsewhere” as the majority of

the choices available to parents and students are religious

institutions. 120 S. Ct. at 2533 (Thomas, J. plurality). The

voucher program at issue constitutes the type of “direct

monetary subsidies to religious institutions,” that Justice

O'Connor found impermissible in Mitchell. Id. at 2559-60

(O'Connor, J. concurring). This program is dissimilar to that

upheld in both Agostini and Mitchell, as here aid goes only to

29a

students enrolled in private schools, thereby fostering the

type of government entanglement prohibited under the

Establishment Clause.

To approve this program would approve the actual

diversion of government aid to religious institutions in

endorsement of religious education, something “in tension”

with the precedents of the Supreme Court. Mitchell, 120 S.

Ct. at 2556. We find that when, as here, the government has

established a program which does not permit private citizens

to direct government aid freely as is their private choice, but

which restricts their choice to a panoply of religious

institutions and spaces with only a few alternative

possibilities, then the Establishment Clause is violated. This

scheme involves the grant of state aid directly and

predominantly to the coffers of the private, religious schools,

and it is unquestioned that these institutions incorporate

religious concepts, motives, and themes into all facets of

their educational planning. There is no neutral aid when that

aid principally flows to religious institutions; nor is there

truly “private choice” when the available choices resulting

from the program design are predominantly religious.

We conclude that unlike Mitchell, Agostini, Witters

and Mueller, the Ohio scholarship program is designed in a

manner calculated to attract religious institutions and chooses

the beneficiaries of aid by non-neutral criteria. The effect of

the voucher program is in direct contravention to these

Supreme Court cases which mandate that the state aid be

neutrally available to all students who qualify, that the

parents receiving the state aid have the option of applying the

funds to secular organizations or causes as well as to

religious institutions, and that the state aid does not provide

an incentive to choose a religious institution over a secular

institution. Accordingly, we hold that no genuine issue of

material fact remains for trial that the voucher program has

30a

the primary effect of advancing religion, and that it

constitutes an endorsement of religion and sectarian

education in violation of the Establishment Clause. We

therefore affirm the district court’s order granting summary

judgment to Plaintiffs.

IV.

Intervenor Taylor asserts that the district court erred

by holding that the Ohio Supreme Court’s opinion in

Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999), did

not estop Plaintiffs’ claim, and by refusing to certify the

question of estoppel to the Ohio Supreme Court. This Court

reviews the issue of collateral estoppel as part of the

summary judgment determination de novo. This Court

reviews the district court's denial of certification for an abuse

of discretion. See Transamerica Ins. Co. v. Duro Bag Mfg.

Co., 50 F.3d 370, 372 (6" Cir. 1995).

Under both federal and state law, an “issue must have

been necessary to support the judgment ... in the prior

proceeding” in order to find collateral estoppel. Knox County

Educ. Ass'n v. Knox County Bd. of Educ., 158 F.3d 361, 376-

77 (6" Cir. 1998); accord MetroHealth Med. Ctr. v.

Hoffmann-LaRoche, iInc., 685 N.E.2d 529, 533 (Ohio 1997)

(“Issue preclusion precludes the relitigation of an issue that

has been actually and necessarily litigated and determined in

a prior action.”); cf. Ameigh v. Baycliffs Corp., 690 N.E.2d

872, 875 (Ohio 1998) (“Where the judgment of a court is not

dispositive on issues which a party later seeks to litigate, res

judicata is not applicable ... even if the prior court decision

has discussed the issues that are the subject of the current

litigation.”). A determination is not essential to the judgment

if the judgment could be supported by an adequate and

independent state ground. See Lambrix v. Singletary, 520

U.S. 518, 522-24 (1997). In Goff, the Ohio Supreme Court

3la

held that the 1995 school voucher program was enacted in

. violation of the one-subject rule of the Ohio Constitution,

and on that basis, ordered the program in its entirety

“stricken” from the Ohio statute books. 711 N.E.2d at 203.

That ruling entitled the plaintiffs to the relief they requested,

and therefore, any discussion of other grounds for striking or

upholding the statute could be neither necessary nor essential

to the holding. The Ohio Court determined that the entire

program could not stand; therefore, any analysis as to the

constitutionality of particular portions of the program was by

definition advisory or dicta, and cannot be relied vpon to bar

further litigation. Because Plaintiffs would not be able to

obtain Supreme Court review of the Ohio Supreme Court's

determination as to the Establishment Clause, such

determinations cannot constitute collateral estoppel. See Cal.

v. Rooney, 483 U.S. 307, 311 (1987) (declining to review a

Fourth Amendment ruling adverse to the state of California

where that ruling was unnecessary to a judgment in favor of

the state).

Similarly, the district court did not err in refusing to

certify the question to the Ohio Supreme Court. The

governing law as to whether a party is estopped from

relitigating an issue not essential to the court’s determination

is clear and uncontroverted; we therefore find no abuse of

discretion in the district court's determination.

Vv.

Before concluding, we must pause to briefly address

the dissent, not for the purpose of dignifying its hyperbole,

but to quash any putatively substantive argument which may

have found its way through the gratuitous insults. The

dissent first makes the bald-faced assertion that the majority

has struck down the voucher program as unconstitutional

without any “meaningful” independent analysis, and that the

32a

majority simply concludes that the program is “foreordained”

to be found unconstitutional under Nyquist. According to the

dissent, the New York statute in Nyquist is “totally different”

from the Ohio statute before us today, thus making it

impossible to “take seriously” the majority's conclusion that

Nyquist is controlling. However, even a cursory reading of

the majority opinion clearly indicates that it is the dissent and

its rhetoric which should not be taken seriously. As carefully

set forth in Part III of this opinion, the Ohio statute at issue

has the same effect as that of the New York statute held

unconstitutional under the Establishment Clause in Nyquist.

Both statutes have the impermissible effect of benefitting

only students in particular private, and mostly religious,

schools, irrespective of the illusory choice provided on the

face of the Ohio statute. The fact that the dissent may not

agree with the analysis set forth in the opinion to illustrate

this point does not ipso facto render the analysis

“meaningless.”

Second, in a similar vein, the dissent claims that the

majority reaches its conclusion that the voucher program is

unconstitutional under the Establishment Clause without

conducting any “meaningful” analysis into the Supreme

Court's several cases on this issue since Nyquist was handed

down. However, in Part Il of this opinion, the majority

painstakingly sets forth First Amendment Establishment

Clause jurisprudence and its evolution since Nyquist, while

carefully applying that law to the statute at hand in the

following section. Again, it is obvious that the dissent’s

bald-faced assertion that this analysis not “meaningful” is

apparently born out of nothing more than its disagreement

with the outcome of this case, rather than with an objective

observation. It is the majority which employs the evolving

jurisprudential standards in reaching its outcome, while the

dissent employs a rigid antiquated standard to reach its result

driven outcome in contravention of the Supreme Court's

33a

= pronouncements.' See, ¢.g., Agostini, $21 U.S. at 222-

VL

We recognize the importance of this case and the

precedential value it espouses. Equally as important, we are

aware of the critical nature of questions of educational

policy, and the need to establish successful schools and

academic programs for children. We find, however, that

even more important is the need to uphold the Constitution of

the United States and, in this case, to override the State of

Ohio's statutory scheme where it constitutes an

impermissible infringement under the Establishment Clause

of the First Amendment. We there AFFIRM the district

court's order finding the school voucher program

unconstitutional, as well as the court's determination that

Plaintiffs are not collaterally estopped.

"Judge Ryan inappropriately calls for an en banc review of the matter in

his dissent. There are rules and procedures governing a call for en banc

review once a case has been decided, whether the call is made by a party

Or sua sponte by an active judge of this Court or member of the original

panel, and it is the process contemplated by these rules and procedures

which should be used to invoke en banc review after the Court's opinion

has been issued. See Craft v. CIR, Nos. 99-1734, 99-1737, 2000 WL

1726906, at n.18 (6" Cir. Nov. 22, 2000) (criticizing the concurring

opinion’s exhortation for en banc review of the matter, while noting that

Fed. R. App. P. 35(b) and 6 Cir. 1.0.P. 35(c) set forth the appropriate

procedures to follow when calling for such review). The unfortunate

practice of arguing for en banc review of a case in a panel member's

separate opinion—instead of simply permitting the Court's regular

operating procedures for seeking such review to be followed subsequent

to the issuance of the majority opinion—is one which should not be

perpetuated.

CONCURRING IN PART, DISSENTING IN PART

RYAN, Circuit Judge, concurring in part and

dissenting in part. My colleagues’ resolution of the question

presented by the plaintiffs’ collateral estoppel claim is

eminently correct and so I joint part IV of the court's

opinion. However, because | believe Ohio's voucher

program to be constitutional under the First Amendment and

the Supreme Court's Establishment Clause cases interpreting

the amendment, I must respectfully dissent from the

majority's treatment of the voucher program's

constitutionality.

My brothers have struck down as unconstitutional

Ohio's effort to establish a school-choice voucher program

whose primary purpose is to enable mostly minority poverty-

level school children, in Cleveland, Ohio, to escape the

devastating consequences of attending Cleveland's

demonstrably failed public schools. My colleagues have

done so not on the basis of any independent constitutional

analysis of the Ohio Pilot Project Scholarship Program, as

the voucher program is formally known, but because they

claim the invalidity of the statute is a conclusion

foreordained by the United States Supreme Court's decision

in Committee for Public Education and Religious Liberty v.

Nyquist, 413 U.S. 756 (1973). I disagree. The New York

statute interpreted in Nyquist and the Ohio statute before us

are totally different in all of their essential respects, both in

their purposes and their provisions for carrying out their

respective purposes. It is impossible to take seriously the

majority's claim that Nyquist governs our result and, for that

35a

reason, requires that the Ohio voucher program must be

struck down.

Moreover, the majority's refusal to conduct any

meaningful analysis of the Supreme Court’s several

Establishment Clause decisions handed down in the 27 years

since Nyquist was decided, its insistence that the plainly

distinguishable Nyquist case is directly on point, and the

factually unsupported antireligious-schools arguments in the

opinion strongly suggest that the majority has simply signed

onto the familiar anti-voucher mantra that voucher programs

are no more than a scheme to funnel public funds into

religious schools.

It is implicit in the majority's reasoning that there is

no need for any independent analysis whether Ohio's

voucher program violates the Establishment Clause because

Nyquist is “on point with the matter at hand.” Slip op. at 13.

In my judgment, the majority is mistaken as a matter of fact

(the two statutes are totally different) and as a matter of law

(the relevant Establishment Clause jurisprudence has

changed since Nyquist). As to the latter, a reading of the

Supreme Court's Establishment Clause cases decided since

1973 makes it unmistakably clear that the voucher program

passes constitutional muster. I do not claim that the Nyquist

decision has been overruled, although some of the reasoning

in the Nyquist opinion has been “undermined,” as the Ohio

Supreme Court put it in Simmuns-Harris v. Goff, 711 N.E.2d

203, 208 (Ohio 1999); Nyquist is simply inapposite to the

appeal before us.

: The New York statutory provisions struck down in

Nyquist and the Ohio voucher program are essentially

different laws; they are plainly distinguishable both in their

36a

i i lication. For

declared purposes and in the manner of their app

that tae alone, the reasoning and the holding of the

Nyquist decision cannot govern our result.

A.

-I begin with a comparison of the New York statutory

provisions construed in Nyquist and the Ohio statute before

us; a comparison that shows very clearly that the two laws

are essentially different. I then examine the Supreme Court

Establishment Clause cases decided since Nyquist, which

clearly indicate that the Ohio voucher program 1s not

unconstitutional.

1.

In Nyquist, the Supreme Court was required to decide

whether a New York statute containing provisions for both

direct and indirect financial assistance to New York's private

schools violated the Establishment Clause. The statute

provided for three forms of assistance: (1) direct grants for

building maintenance and repairs for private school

buildings; (2) tuition reimbursement grants for some low-

income parents of children already attending the private

schools; and (3) a form of tax relief for parents who failed to

qualify for tuition reimbursement under the statute. See

Nyquist, 413 U.S. at 762-65.

The New York legislature enacted the statute for the

sole purpose of directly benefitting New York state’s 2,038

financially pressed private schools, wherein some 700,000-

800,000 students—almost 20% of the state’s entire

elementary and secondary school population—were being

educated. See id. at 768. The legislative “findings in the

New York statute declared: (1) it was in the state $ interest

to provide funding for “maintenance and repair of the state’s

f

'

37a

private schools in order to protect the health and safety of

those attending the schools; (2) the state had an interest in

promoting “alternative educational systems”; and (3) a

“precipitous decline” in the number of children attending

private schools would perpetuate an already existing fiscal

crisis in public schools. /d. at 763-65.

The Nyquist Court held that the New York law

offended the Establishment Clause because “the effect of the

aid [was] unmistakably to provide desired financial support

for nonpublic, sectarian _ institutions.” Id. at 783.

Furthermore, the Nyquist Court concluded that “{iJn the

absence of an effective means of guaranteeing that the state

aid derived from public funds will be used exclusively for

secular, neutral, and nonideological purposes, it is clear from

our cases that direct aid in whatever form is invalid.” J/d. at

780.

The Ohio voucher program, which is adequately

described in the majority opinion, could not be more unlike

the New York statute both in its purpose and in the manner

of its application. The essential differences between the New

York and Ohio statutes may be summarized as follows:

First, the purpose of the New York statute was to

provide financial help to New York’s financially troubled

private schools because their closing would force New

York’s public schools to absorb the private school students,

resulting in massive increased costs and the related burdens

of absorbing as many as three quarters of a million new

students.

The purpose of the Ohio statute, on the other hand, is

to provide financial help to poverty-level students attending

the public schools in Cleveland in order to enable them, if

they wish, to attend nonreligious private schools, religious

38a

private schools, public schools in neighboring districts that

wish to participate in the voucher program, or to obtain

special tutoring while remaining in the Cleveland public

schools.

Second, the New York program involved direct

financial grants to New York’s private schools, religious and

nonreligious, primarily for maintenance and repair.

Although the tuition reimbursement and tax relief sections of

the statute appeared to benefit the parents of private school

children, the Nyquist Court stated that the “tuition

reimbursement program also fails the ‘effect’ test, for much

the same reasons that govern its maintenance and repair

grants.” /d.

Under the Ohio voucher program, on the other hand,

there is no provision for any financial grants in any form to

any private schools. A voucher recipient receives a

scholarship check, and the funds therefrom reach a private

religious school only after a child’s parents have considered a

variety of options available to them and have chosen the

religious private school as the best option for their child.

Third, the New York statute permitted government

aid to schools that discriminated against children on the basis

of religion and, in fact, several qualifying schools imposed

religious restrictions on admissions. See id. at 767-68.

The Ohio voucher program, on the other hand

contains a provision explicitly forbidding participating

schools from discriminating against prospective students on

the basis of religion. See Ohio Rev. Code § 3313.976(A)(4).

It is clear that the New York statute struck down in

Nyquist and the Ohio statute before us are dissimilar laws

both in their purposes and the methodologies for carrying out

39a

their Purposes. As the majority acknowledges, “[{a] single

factual difference consequently can serve to entangle or free

a particular governmental practice from the reach of the

_ [Establishment] Clause’s constitutional prohibition.” Slip

op. at __ (internal quotation marks and citation omitted). A

case construing a statute so manifestly different than the one

before us could hardly, as a factual matter, be indi

precedent on this court. é ee

2.

The substantial differences in the

application of the two statutes is not the only Se

does not govern our result. The additional reason is that the

rule of law upon which Nyquist was decided has changed

First, the Nyquist era categorical prohibition against direct

grants to aid religious schools is no longer the law; and

second, the criteria for determining when a statute has the

forbidden “primary effect” of advanci igi

mer ing religion have been

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the

Supreme Court fashioned the following test for assessing

whether a statute violates the Establishment Clause:

First, the statute must have a_ secular

legislative purpose; second, its principal or

primary effect must be one that neither

advances nor inhibits religion ...; finally, the

Statute must not foster an excessive

government entanglement with religion.

Id. at 612-13 (emphasis added) (internal i ;

Citation omitted). eer

40a

The Nyquist Court ruled that the New York statute

violated the Lemon test because it had the “impermissible

effect of advancing religion.” Nyquist, 413 U.S. at 794. It

did so, the Court said, by providing direct financial assistance

to religious schools without any restrictions as to the schools’

use of the funds, therefore “advanc[ing] the religious mission

of sectarian schools.” /d. at 779-80. But three years ago in

Agostini v. Felton, 521 U.S. 203 (1997), the Supreme Court

declared unmistakably that “we have departed from the rule

... that all government aid that directly assists the educational

function of religious schools is invalid.” Jd. at 225. The

Agostini Court then proceeded to redefine and narrow the

criteria for determining when government aid that finds its

way to a religious school has the primary effect of advancing

religion.

Again, I do not question for a moment the correctness

of the Supreme Court's decision in Nyquist. I accept it both

analytically and precedentially as a faithful 1973 application

of the “primary effect” test of Lemon. However, Nyquist was

not analyzed and decided under what the Agostini Court

called its “changed ... understanding of the criteria used to

assess whether aid to religion has an impermissible effect.”

Id. at 223. Since this appeal is also an “impermissible effect”

case, our decision cannot be controlled by Nyquist.

What then is the Supreme Court’s “changed ...

understanding” of the proper test for determining whether a

jaw has the primary effect of advancing religion?

In Mueller v. Allen, 463 U.S. 388 (1983), the Court

held that a Minnesota statute authorizing a tax deduction for

certain educational expenses for parents of students attending

either public or private schools, religious or nonreligious, did

4la

not violate the “impermissible effect” prong of

test. The Court focused on the fact ae - sarang as

given directly to the parents, without regard to the type of

school, religious or nonreligious, to which the parents might

choose to send their children, as a strong indicator of the

statute's “neutrality.” See id. at 397-400. Any money

received at a religious school, the Court said, was “ultimately

controlled by the private choices of indivi "

= aan of individual parents.” /d.

. This principle—that whether public funds find their

way to a religious school is of no constitutional consequence

if they get there as a result of genuinely private choice—was

reasserted in Witters v. Washington Department of Services

for the Blind, 474 U.S. 481 (1986). There, a Washington

State program survived an Establishment Clause challenge

even though it provided vocational rehabilitation assistance

for a blind individual to attend a Christian college in order to

study to be a Christian pastor. Funds under the program were

[disbursed] directly to the eligible applicants who made the

choice of where to expend the educational funds; therefore

[a]ny aid ... that ultimately flow[ed] to religious institutions

. [did] so only as a result of the genuinely independent and

private choices of aid recipients.” /d. at 488.

In Zobrest v. Catalina Foothills School District

U.S. | (1993), the Court upheld the arene or a

program providing a sign-language interpreter for a deaf

student in a Catholic high school. Relying upon Witters and

Mueller, the Zobrest Court concluded that the statute gave

parents the choice of where to send their eligible children to

school and “distributes benefits neutrally ... without regard

to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of

the school.” /d. at 10 (quoting Witters, 474 U.S. at 487),

42a

This line of cases culminated in the Agostini decision

in 1997, in which the Supreme Court declared that its

understanding of the criteria for determining whether, in any

specific program, government aid has the primary effect of

advancing religion had “changed.” Indeed, in Agostini the

Supreme Court went so far as to modify the Lemon test it had

relied upon in Nyquist. The Agostini Court began by

recasting Lemon’s “entanglement” inquiry as a factor under

the “impermissible effect” prong rather than as a separate and

independent criterion. See Agostini, 521 U.S. at 232-34. It

then identified three new sub-criteria to consider when

evaluating whether a government-aid program violates

Lemon’s “impermissible effect” prong. These are:

(1) whether the = aid results’ in

governmental indoctrination,

(2) whether the aid program defines its

recipients by reference to religion; and

(3) whether the aid creates an excessive

entanglement between government and

religion.

See id. at 234.

Using this modified Lemon test, the Agostini Court

found constitutional a federally mandated New York program

that sent public school teachers into private parochial schools

to provide remedial education to eligible children. Under the

program, children meeting the eligibility requirements

received the services, whether they attended a private or

public school. See id. at 232. The Agostini Court concluded

that programs in which money ultimately flows to a private,

religious school based on the “‘genuinely independent and

private choices of’ individuals” do not violate the

43a

— Clause. /d. at 226 (quoting Witters, 474 U.S.

Finally, in Mitchell v. Helms, 120 S. Ct. 2530 (2000)

a plurality opinion written by Justice Thomas. the Court

upheld the constitutionality of a federally mandated

Louisiana program where educationai materials were loaned

to public and private schools, both religious and nonreligious

Justice Thomas emphasized that the statute did not have an

impermissible effect” because the “principles of neutrality

and private choice, and their relationship to each other [that]

were [also] prominent” in the Court’s decisions in Agostini

Zobrest, Witters, and Mueller were present. Id. at 2542.

It is against this background of chan S

Court Establishment Clause jurisprudence aa atten

the constitutionality of the Ohio voucher program.

The Ohio statute is the product of a 1994 order i

by the United States District Court in Cleveland, Reena

Ohio Superintendent of Education to address the educational

crisis in Cleveland’s public schools. See Reed v. Rhodes. 869

F.Supp. 1274 (N.D. Ohio 1994). The Ohio legislature and

the state 8 governor responded with the voucher program that

is before us today. See Ohio Rev. Code §§ 3313.974-

3313.979. We may safely assume that in fashioning the new

law, the Ohio legislators and the governor knew that the

challenge they faced was to design a law that would survive a

federal constitutional challenge on Establishment Clause

grounds. That is not to say that the statute the legislators

wrote and the governor signed into law is insulated from

federal judicial constitutional scrutiny. Rather, it is to say

what the majority does not even acknowledge: this statute is

presumed to be constitutional. See McDonald v. Board of

44a

Election Comm’ rs, 394 U.S. 802, 809 (1969); Hartford Fire

Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower &

Clancy, 740 F.2d 1362, 1366 (6 Cir. 1984). This

presumption is not a mere literary figure for rote recitation in

all appellate opinions addressing the constitutionality of

legislative enactments; it is a bedrock rule of statutory

construction, one we are bound assiduously to honor as we

begin our assessment of the validity of the Ohio statute.

The first of the Lemon criteria that must be met if a

statute is to survive an Establishment Clause challenge is that

it have a “secular purpose.” The Ohio voucher program

meets this criterion and the plaintiffs agree that it does. The

sole purpose of the voucher program is to save Cleveland's

mostly poor, mostly minority, public school children from

the devastating consequences of requiring them to remain in

the failed Cleveland schools, if they wish to escape. There is

also no serious claim that the statute is constitutionally

invalid solely because it fosters an “excessive entanglement”

between government and religion. Rather, the only issue in

the case is whether the voucher program has the forbidden

“primary effect” of advancing religion. This court's first

duty, therefore, after recognizing that Nyquist’s factually and

legally outdated decision is of no help, is to proceed to

examine the first two criteria from Agostini’s “impermissible

effect” test to determine whether the effect of Ohio’s voucher

program is to advance religion, either because (1) the aid it

provides results in governmental indoctrination, or (2) the

defines its recipients by reference to religion. See

Agostini, 521 U.S. at 234. These are the only two issues

properly before us.

A.

In addressing Agostini’s first criterion for testing a

statute’s claimed impermissible effect, we must ask whether

4Sa

the government aid in the form of the tuition voucher

sn 6 , results

in “governmental indoctrination.” It is obvious that the Ohio

statute does not have the remotest effect of providing

governmental indoctrination in any religion, to say nothi

having such a primary effect. ; a or

_ The Supreme Court decisions since Lemon and

Nyquist have emphasized that the critical question in

determining whether government aid ultimately flowing to

religious schools results in governmental indoctrination is if

the recipient beneficiaries make a “genuinely independent

and private choice[]” to “spend” the funds in a religious

school. Id. at 226 (internal quotation marks and citation

omitted). If the recipients have such an independent and

private choice, then the government's decision to provide the

money to fund that choice does not have the effect of

advancing religion. The government is, of necessity, neutral

in the matter. Implicit in that constitutional rule of law, as it

applies in this case, is that there must be a genuine choice

from among a range of alternatives that indicate complete

neutrality on the part of the government as to where the

recipient parents may choose to spend the government-aid

funds. The voucher program does not offend the

a Clause because the statute allows parents to

© a genuine choice for their chi currently i

Gecatladaeanes their children who are ly in

meer are the choices Ohio has given these Cleveland

(1) To permit their children to remain in

the Cleveland public schools as before:

(2) To accept a tuition voucher for them to

attend a Cleveland area nonreligious

private school;

46a

(3) To accept a tuition voucher for them to

attend a Cleveland area religious

private school;

4) To-accept a voucher for them to obtain

special tutorial help in the Cleveland

schools; or

(5) To accept a voucher for them to attend

a public school in a district adjacent to

Cleveland, although for the present

these districts have declined to

participate in the program.

See Ohio Rev. Code §§ 3313.976-3313.978.

It is difficult to imagine a statute that could afford its

voucher recipients a broader spectrum of educational choice.

It is true, of course, that the public school districts adjacent to

Cleveland have declined to participate in the voucher

program, but there is not the slightest hint in the record that

when the Ohio statute was enacted either the legislators or

the governor had any idea that the public school districts

adjacent to Cleveland would not participate. What we

measure today is not whether the children in Cleveland have

the fullest conceivable range of options available to them that

a panel of federal judges might think to be ideal, but rather,

whether the statute, as enacted, has the primary effect of

advancing religion by involving the stale in governmental

indoctrination under Agostini’s first criterion. See Mitchell,

120 S. Ct. at 2541-44. To my knowledge, no federal court

has ever held that a school-choice voucher program 1s

unconstitutional because the range of choices does not

include a public school option; certainly the majority does

not cite such a case.

47a

Neither does the Ohio program “define its recipients

by reference to religion,” the second Agostini factor for

testing for “impermissible effect.” Agostini, 521 U.S. at 234.

The program defines the first-priority voucher recipients by

reference to (1) their attendance in one of Cleveland's public

schools; and (2) a family income that is not more than 200

percent of the federally established poverty level. See Ohio

Rev. Code § 3313.978(A). And the statute explicitly forbids

a religious test for admission to a participating school,

including religious schools. See id. at § 3313.976(A)(4). A

parent has the choice of using the voucher in a private

religious school, a private nonreligious school, for tutoring in

the public school, or in a public school in a neighboring

district if any wish to participate. The statute expresses no

preference, explicitly or implicitly, either as to the religion of

the voucher recipients, or if the recipient chooses a private

school, whether the voucher is applied to a religious or

nonreligious school.

The Agostini Court recognized, of course, that the

eligibility requirements of a government-aid program could

“have the effect of advancing religion by creating a financial

incentive to undertake religious indoctrination.” Agostini,

521 U.S. at 231. The Court noted that a financial incentive to

choose a religious school over a nonreligious school is not

present “where the aid is allocated on the basis of neutral,

secular criteria that neither favor nor disfavor religion, and is

made available to both religious and secular beneficiaries on

a nondiscriminatory basis.” /d.

Despite the plain evidence that the aid to the parents

of the Cleveland school children is indeed “allocated on the

basis of neutral, secular criteria that neither favor nor

48a

disfavor religion, and is made available to both religious and

secular beneficiaries on a nondiscriminatory basis,” id., the

majority continues to insist that the voucher program is not

neutral because it creates a forbidden “incentive” for parents

in Cleveland to choose a religious school. As best I can

understand it, they rest this conclusion—unsupported though

it is by any evidence in the record—on two further

conclusions. The first is that because the vast majority—82

percent—of the private schools participating in the Ohio

program are religious, the people of Cleveland are denied a

“genuine” choice. This argument is made despite the

indisputable fact that of all the private nonreligious private

schools participating in the program, not one has ever turned

away a voucher applicant for any reason. This not very

thinly veiled antipathy the majority has shown toward-

religious schools—its argument that there are too many

religious schools in the program—is meritless for another

reason: the Supreme Court has flatly rejected the argument

that a high percentage of religious schools participating in a

government-aid program is an indicator that the government

is engaging in governmental indoctrination of religion. See

Mitchell, 120 S. Ct. at 2542; id.\at 2562 (O’Connor, J.,

concurring); Agostini, 521 U.S. at 229; Mueller, 463 U.S. at

401.

The majority then attempts to support its view that the

Ohio statute creates a forbidden incentive for parents to

choose a religious school by utilizing the transparent

argument that this statute should be struck down because the

religious schools in the program are too religious. In support

of this proposition, the majority devotes considerable

attention to the mission statements of several religious

schools, which indicate the pervasively religious character of

their programs. My brothers conclude therefrom that these

schools “believe in interweaving religious beliefs with

secular subjects” and “incorporate [in their curriculum]

49a

religious concepts, motives, and themes.” Slip op. at 5, 27.

Imagine, religious schools that are truly religious!

This plainly hostile attack on the religious schools in

the Ohio voucher program is one I would [have] thought

unworthy of mention in an opinion from this great court. Is

the point being made here that religious schools may

participate in a voucher program providing they are not too

religious? Or, is it that these poverty-level parents in

Cleveland cannot be trusted to understand what they will be

exposing their children to if they choose on of these religious

schools? One would have thought that the nail was long ago

driven into the coffin bearing the discredited arguments that

if a voucher program involved too many religious schools, or

if those involved are honestly, genuinely, and essentially

religious, the statute is therefore invalid as “advancing

religion.” This most unattractive argument was utterly

rejected in Witters, 474 U.S. at 486-88, and Mueller. 463

U.S. at 397-400, and also was rejected in Justice Powell's

concurring opinion in Witters. See Witters, 474 U.S. at 492

(Powell, J., concurring). Moreover, Justice Thomas, writing

for a clear majority on this point in Mitchell, stated:

In short, nothing in the Establishment

Clause requires the exclusion of pervasively

sectarian schools from otherwise permissible

~n a, and other doctrines of this Court

it. This doctrine, born of bigotry, should

be buried now. san /

Mitchell, 120 S. Ct. at 2552.

The majority, in this case, straining mighti i

, , g mightily to strike

down this law, then conjures still another anti-voucher

argument (the reader will recall that the majority's decisional

50a

premise is that this case is controlled by Nyquist and,

implicitly, that all else is irrelevant).

My colleagues’ next non-Nyquist argument is that the

“school voucher program is not neutral in that it discourages

the participation by schools not funded by religious

institutions.” Slip op. at 23. This statement in the majority

opinion, which, like so many others in the opinion, is totaily

without any basis in the evidence, is then fortified by my

brothers’ ipse dixit that “religious schools often have lower

overhead costs, supplemental income from private donations,

and consequently lower tuition needs.” /d. at 24. The only

authority my colleagues offer for this speculation is a

Fordham University Law Review article. I can only surmise

that the point my colleagues wish to make here is that

nonreligious schools will not participate in Ohio’s voucher

program because the voucher will not cover the cost of

educating a student in a nonreligious school. This, my

brothers reason, creates an “incentive” for the parents to send

their children to the religious schools where they can be

educated more efficiently and for fewer dollars.

There is absolutely no evidence in the record to

support the majority’s argument that the Ohio statute creates

a financial “disincentive” for Cleveland’s neighboring,

suburban public school districts to participate in the program.

There is no evidence to support what the majority seems to

imply—that some parents wishing to use a voucher choose

not to do so because other Cleveland area public schools are

not participating. And there is no evidence that if a public

school chooses to participate in the voucher program, it will

lose its state funding.

These arguments are built on a “factual” predicate

that has absolutely no basis in the record. There is not a

scintilla of evidence in this case that any school, public or

Sla

private, has been discouraged from participating in the school

voucher program because it cannot “afford” to do so. The

import of this argument, as best I can understand it, is that the

parents of the Cleveland school children have an “incentive”

to choose Cleveland’s religious schools because there are not

enough nonreligious schools participating in the program. Of

course, there is no evidence of that either. And there is no

evidence that any of the several nonreligious, private schools

participating in the program have ever rejected a single

voucher applicant for any reason, including a supposed

inability to afford the differential between the value of a

$2,500 voucher and the actual cost of a nonreligious, private

school education.

While I hesitate to dignify that majority’s speculation

with speculation of my own, what is at stake in this case is

foo important to let any of my colleagues’ meritless

arguments go unanswered.

It is indisputable that no nonreligious, private school

or any other school for that matter, has ever been discouraged

from participating in the Cleveland voucher program and

there is no evidence that any private school, religious or

nonreligious, has ever turned away a voucher applicant for

any reason. Therefore, what my colleagues must be getting

at Is even more insidious and offensive. The point apparently

is that Cleveland parents would never choose to send their

children to a religious school in Cleveland if they could

afford to send them to a nonreligious, private school, or

another public school, but that they cannot do so because the

cost differential between the value of a $2,500 voucher and

the actual tuition of Cleveland’s nonreligious, private schools

is prohibitive. Again, it is of no small importance that there

is absolutely no evidence in the record that any Cleveland

public school parent has ever declined to enroll his or her

child in a nonreligious, private school in Cleveland because

52a

there was a differential cost that was prohibitive. It is

probably true that no private school, religious or

nonreligious, can educate a child for the voucher value of

$2,500. But, in all probability, the participating private

schools are willing to accept the voucher as meeting a portion

of the actual educational costs for these children and are

willing to absorb the differential cost as part of their pro bono

service in Cleveland to help save as many of these children as

possible from the disastrous consequences of continuing in

the city’s failed public schools.

But more important that all of this speculation is the

reality that the majority’s “neutral only if affordable to all’

test is utterly meritless as a matter of law because the now

settled Establishment Clause jurisprudence is that whether

aid is allocated on the basis of neutral, secular criteria is the

key determinant of whether, having made the aid available,

the state has engaged in governmental indoctrination in

religion. See Agostini, 521 U.S. at 231.

If the simplicity and clarity of the Supreme Court's

language in Agostini is not sufficient to demonstrate that the

Ohio statute does not in any respect operate to advance

religion, confirmatory language of crystal clarity appears in

the Supreme Court’s recent decision in Mitchell. In a

passage in his opinion which enjoys the support of a majority

of the Justices, and arguably even the support of the

dissenters, Justice Thomas states:

[T]he question whether governmental aid to

religious schools results in governmental

indoctrination is ultimately a question whether

any religious indoctrination that occurs in

these schools could reasonably be attributed to

governmental action.

53a

Mitchell, 120 S. Ct. at 2541.

The line of cases decided in the Supreme Court

beginning with Mueller in 1983 and ending with Mitchell in

2000 make it unmistakably clear that the majority’s

“impermissible incentive” argument has no basis in our

Establishment Clause jurisprudence. The rule is now settled

that a government program that permits financial aid

ultimately to reach religious schools does not offend the

Establishment Clause if the government's role in the program

is neutral. Neutrality exists if the “governmental aid that

goes to a religious institution does so ‘only as a result of the

genuinely independent and private choices of individuals.’”

Id. (quoting Agostini, 521 U.S. at 226). Justice Thomas

wrote that “simply because an aid program offers private

schools, and thus religious schools, a benefit that they did not

previously receive does not mean that the program, by

reducing the cost of securing a religious education, creates ...

an ‘incentive’ for parents to choose such an education for

their children.” Jd. at 2543-44. Finally, Justice Thomas

concluded that the possibility that government aid might be

diverted by a sectarian school towards some religious end is

irrelevant, for Establishment Clause purposes, if the

government aid program provides the aid in a neutral

manner. See id. at 2547.

In her concurring opinion in Mitchell, Justice

O’Connor, joined by Justice Bryer, agreed that “neutrality is

an important reason for upholding government-aid programs”

against Establishment Clause challenges, but she reiterated

that it was just one factor to consider in challenges to

government school-aid programs and not a “factor [of]

singular importance.” /d. at 2556-57 (O'Connor, J..

concurring). Even Justice Souter’s dissenting opinion, which

Justices Stevens and Ginsburg joined, conceded that the

Establishment Clause presents no obstacle to-government aid

54a

if it reaches sectarian schools as a result of the private

choices of aid recipients. See id. at 2584 (Souter, J.,

dissenting).

Justice O’Connor emphasized the distinction between

“true private-choice programs” and “per-capita school-aid

programs.” Jd. at 2559 (O’Connor, J., concurring). The

Ohio voucher program, like the programs in Zobrest and

Witters, is a true private-choice program because the aid is

given directly to eligible individuals, who in turn decide

where to spend it. The programs considered in Mitchell and

Agostini were examples of per-capita school-aid programs

because aid was distributed based on the number of students

attending each school, regardless of whether the school was

religiously based or not. Justice O'Connor concluded that

true private-choice programs were more likely to survive

Establishment Clause challenges, even though government

aid was diverted to the religious schools, because “*[a}ny aid

... that ultimately flows to religious institutions does so only

as a result of the genuinely independent and private choices

of aid recipients.’"” /d. at 2558 (quoting Witters, 474 U.S. at

488) (O’Connor, J., concurring).

True private-choice programs, by their very nature,

cannot have the forbidden “primary effect” of the

government “advancing religion” because the aid is given

directly to the beneficiary and that student or parent retains

control over where the aid will be applied. “The fact that aid

flows to the religious school and is used for the advancement

of religion is therefore wholly dependent on the student's

private decision.” /d. at 2559. Furthermore, when

government aid flows to a religious school as a result of

“independent decisions made by numerous individuals ...,

[nJo reasonable observer is likely to draw from the facts ...

an inference that the State itself is endorsing a religious

5Sa

practice or belief.” /d. (internal quotation marks and citation

omitted).

The majority opinion in this case claims the voucher

program “involves the grant of state aid directly and

predominantly to the coffers of the private, religious

schools.” Slip op. at 27. Furthermore, according to the

majority, “[t}here is no neutral aid when that aid principally

flows to religious institutions....” /d. at 27. The majority

ignores that this view has been flat-out rejected by the

Supreme Court in the decisions I have discussed which make

it very clear that the number of religious schools participating

in the voucher program, the thoroughness of the religious

training that occurs there, and the use to which such schools

might put the funds are all totally irrelevant to the question of

the government's neutrality, when the government aid

reaches a religious school only as a result of the recipient's

““genuinely independent and private choicef].’"” See

Mitchell, 120 S. Ct. at 2541 (citation omitted); Zobrest, 509

U.S. at 8; Witters, 474 U.S. at 486. By ignoring the recent

Supreme Court cases emphasizing the importance of

genuinely independent and private choices and the distinction

between true private-choice programs and per-capita school-

aid programs, the majority has failed to conduct a

“meaningful” independent analysis of the voucher program’s

constitutionality.

In summary, and to repeat, according to the Supreme

Court, a true private-choice program does not result in

“governmental indoctrination” so long as the path of the

government aid is determined by the “‘genuinely independent

and private choice[]’” of the aid recipients. See Mitchell, 120

S. Ct. at 2541 (citation omitted); id. at 2557-60 (O’Connor,

J., concurring); Agostini, 521 U.S. at 226; Zobrest, 509 U.S.

56a

at 10, 12; Witters, 474 U.S. at 488; Mueller, 463 U.S. at. 397-

98, 400.

Ohio’s voucher program easily meets this test.

Before a voucher is “spent” at a religious school, Cleveland

parents must independently make two important choices:

First, they must decide whether their child will take —

advantage of the voucher alternatives at all, or select another

option, such as remaining in the Cleveland schools,

undertaking home schooling, or attending one of Cleveland’s

well regarded community schools. Second, if a child’s

parents choose the voucher option, they must make the

further “genuinely independent and private choice[]” whether

to use the voucher at a private school, nonreligious or

religious, or for special tutoring in the Cleveland public

schools. The voucher-use choice of attending a public school

in a neighboring district is not presently available to

Cleveland parents because no neighboring district has opted

into the voucher program.

It is difficult to image how a voucher statute could be

crafted that more clearly and decisively forecloses the

government from having any role in the religious

indoctrination of Cleveland school children, or forecloses it

from defining the recipients of the vouchers by reference to

religion, than through the range of free and independent

choices the statute gives to the parents whose children attend

the Cleveland public schools.

IV.

In striking down this statute today, the majority

perpetuates the long history of lower federal court hostility to

educational choice. It does so by reaching back to a 1973

Supreme Court decision, Nyquist, that construes a statute that

S7a

is light years away from the voucher program before us and

that rests upon law that has been altered in an important

respect by subsequent Supreme Court decisions. |My

colleagues refuse to acknowledge that the program in Nyquist

is factually distinguishable in essential ways from the Ohio

voucher program and that the Supreme Court has explicitly

declared that the criteria for determining whether a statute

authorizing government aid to schools violates the

Establishment Clause have changed. And then, almost as if

recognizing that its Nyquist-is-directly-on-point argument

cannot withstand close scrutiny, the majority resorts to the

lamentable tactic of attempting to arouse support for its view

by making the familiar but unworthy arguments that the

voucher program has too many religious schools and that

they are too religious. This argument should fail, first,

because it is rooted in nativist hostility toward religious

schools and, second, because it has been explicitly rejected

by the Supreme Court as a legitimate determinant of whether

a government is engaging in religious indoctrination.

Despite the majority's disclaimer that “courts do not

make educational policy; we do not sit in omnipotent

judgment as to the efficacy of one scheme or program versus

another,” slip op. at 9, the majority opinion is nothing more

than an attack upon the philosophical and cultural desirability

of publicly funded educational choice for the poor. This case

and its result—sentencing nearly 4,000 poverty-level, mostly

minority, children in Cleveland to return to the indisputably

failed Cleveland public schools from which, in many cases,

they escaped as long as three years ago—is an exercise in

raw judicial power having no basis in the First Amendment

or in the Supreme Court's Establishment Clause

jurisprudence.

. In all events, a matter of this gravity and of such

immense importance to the Cleveland children who are

58a

directly affected, and indeed to the nation, should not be

determined by just two judges of this court. Therefore, |

respectfully urge my colleagues to take this case for en banc

review, if they are asked to do so, and decide the vitally

important Establishment Clause issue it presents, after giving

careful consideration to the full panoply of Supreme Court

Establishment Clause jurisprudence, and not just one,

inapposite 1973 case.

As to what is written in part IV of the majority

opinion, I have no disagreement.

59a

Appendix B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DORIS SIMMONS-

HARRIS, et al.,

Plaintiffs

v.

DR. SUSAN TAVE

ZELMAN, SUPER-

INTENDENT OF PUBLIC

INSTRUCTION, STATE

OF OHIO,

Defendant

SUE GATTON, et ai..

Plaintiffs

v.

DR. SUSAN TAVE

ZELMAN, SUPER-

INTENDENT OF PUBLIC

INSTRUCTION, STATE

OF OHIO, et al..

Defendants

ll i i i ee ee ee

ll i i i ee

Case No.: 1:99CV1740

JUDGE SOLOMON

OLIVER, JR.

Case No.: 1:99CV1818

[Filed: December 20, 1999]

JUDGMENT ENTRY

60a

The court, having granted Plaintiffs’ motions for

summary judgment in a separate order of this same date and

having denied Defendants’ motions for summary judgment,

now enters judgment for Plaintiffs Doris Simmons-Harris, et

al. and Plaintiffs Sue Gatton, et al. and against Defendants

Susan Tave Zelman, et al., Intervening Defendants Senel

Taylor, et al. and Intervening Defendants Hanna Perkins

School, et al.

IT IS SO ORDERED.

SOLOMON OLIVER, JR.

United States District Judge

6la

Appendix C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DORIS SIMMONS-HARRIS, )

et al., ) Case No. 1:99CV 1740

)

Plaintiffs ) JUDGE SOLOMON

) OLIVER, JR.

v. )

)

DR. SUSAN TAVE ZELMAN, )

SUPERINTENDENT OF PUBLIC )

INSTRUCTION, STATE OF OHIO )

)

Defendant )

SUE GATTON, et ai., ) Case No. 1:99CV1818

Plaintiffs

Vv.

ee

DR. SUSAN TAVE ZELMAN, ) [Filed: Dec. 20, 1999]

SUPERINTENDENT OF PUBLIC )

INSTRUCTION, STATE OF OHIO, )

et al., )

)

Defendants ) ORDER

I. INTRODUCTION AND FACTS

Plaintiffs brought this action seeking to enjoin

permanently a portion of the Ohio Pilot Scholarship Program

62a

on the ground that it violates the Establishment Clause of the

First Amendment to the United States Constitution made

applicable to the States by the Fourteenth Amendment to the

U.S. Constitution. All plaintiffs and all defendants in these

consolidated actions have filed motions for summary

judgment except for Intervenor/Defendant Hanna Perkins,

who filed a brief in support of the other Defendants’ motions

for summary judgment. For the reasons set forth below, the

court grants the Motions for Summary Judgment of Plaintiffs

Doris Simmons-Harris, et a/. and Plaintiffs Sue Gatton, et al.

(Doc. Nos. 83 and 97, respectively), and denies the Motions

for Summary Judgment of Intervening Defendants Senel

Taylor, et al. and the State Defendants, et al. (Doc. Nos. 82

and 92, respectively). Accordingly, the State Defendants are

permanently enjoined from administering the Voucher

Program.

In 1995 the Ohio Legislature enacted a pilot

scholarship program to address an educational crisis in

Cleveland’s public schools in the wake of a U.S. District

Court-ordered takeover of the administration of the

Cleveland City School District (the “District”) by the State.

This program, as more fully discussed herein, was struck

down by the Ohio Supreme Court as being in violation of the

Ohio Constitution. The program was re-enacted in all

pertinent respects by the Ohio Legislature in June 1999. The

1999 program is applicable, as was the 1995 progr-m, to

students residing in the District. The program has two

components: a scholarship program to enable students to

attend “alternative schools” (“Voucher Program” or

“Program’”’); and a tutorial program for children attending the

Cleveland Public Schools (“Tutorial Program”). Plaintiffs,

while challenging the constitutionality of the Voucher

63a

Program, do not challenge the Tutorial Program in this

action.

Private schools within the geographic boundaries of

the District and public schools adjacent to the District are

eligible to participate in the Voucher Program as “alternative

schools.” In order to do so, private schools must register

with the State Superintendent. Recipients are chosen by lot

an receive a fixed percentage of the tuition charged by the

alternative school of their choice, up to $2,500. Students

whose family income is not more that 200% of the federally-

established poverty level receive 90% of their school tuition;

other scholarship recipients whose family income is above

this threshold receive 75% of their tuition. Participating

students may first enroll in the Program as early as when they

enter kindergarten and must do so by third grade. Once

admitted to the Program, they are eligible for scholarships

through eighth grade. Disbursement of scholarship money to

a private school is accomplished by the State sending a check

to the chosen school made payable to the parents of the

recipient; thereafter, the parents must endorse the check to

the school. The State places no restriction on how the private

school may utilize the money. In the event that an adjacent

public school is involved, the State would issue a check made

payable to the school district.

In the three years prior to the Ohio Supreme Court's

holding the 1995 program unconstitutional, no public schools

registered for the program. None have registered since the

enactment of the Program in 1999. For the 1999-2000 school

' Tutorial grants may be used to obtain tutorial services for students

enrolled in the Cleveland Public Schools. The same number of

scholarships and tutorial grants must be awarded in a given year. The

eligibility criteria for tutorial grants are the same as those for the

scholarship grants, discussed below. The maximum allowable tutorial

grant is $500.

64a

year, 3,761 students were to be enrolled in the Program.

Sixty percent of these students are from families at or below

the poverty level. At the beginning of the 1999-2000 school

year, fifty-six schools were registered to participate in the

Program. Forty-six of the schools, or over 82%, are church-

affiliated.? Of the 3,761 students enrolled in the Program,

3,632, or over 96%, are enrolled in sectarian schools. PI. J.A.

vol. I, Ex. E.

Religious characteristics vary from school to school,

but participating schools share certain traits. For example, it

can generaliy be said that a central part of each school’s

program is instruction in the theology or doctrine of a

particular faith and that religion and religious doctrines are

an integral part of the entire school experience. A review of

several schools’ parent handbooks perhaps provides better

insight i .o the religious nature of the schools at issue.”

For example, Saint Patrick School includes in its

Family handbook the following:

PHILOSOPHY OF CATHOLIC EDUCATION

We believe that a philosophy of Catholic

education begins with faith that God, in

> The number of participating schools aud number of participating

religious schools were reached by Plaintiffs as a result of obtaining

discovery from the State and the Hanna Perkins Intervenors/Defendants.

O’Brien Aff. at 46, Pl. J.A. vol. I. Defendants do not dispute Plaintiffs’

figures.

* The parties have stipulated that the handbooks and mission statements

produced by the schools participating in the Voucher Program “are

authentic, speak for themselves, have been made available to the parents

of the scholarship students and are not false or misleading.” Stipulation

by the parties of October 15, 1999, at 2.

65a

creating, gifted us with life. He became one

of us in His Son Jesus, and in the person of

His Spirit awaits our response to His

unconditional overture of love. Jesus remains

with the community He formed, witnessing

and sharing the Good News in every age and

with all people, ever yearning for a return of

love either by a sincere response to conscience

or by membership in His Church. It is from

this perspective that the educational ministry

of the Catholic community flows.

* * *

MISSION STATEMENT

St. Patrick School is a Catholic School in the

Diocese of Cleveland, Ohio. The mission of

St. Patrick School is to live and teach the

Gospel message. We are dedicated to the

formation of youth according to our Catholic

Traditions within at: innovative academic

environment which provides students with the

opportunity to develop spiritually,

academically, and socially to the best of their

abilities.

Objectives of Education

l. To communicate the gospel message

of Jesus.

2. To provide opportunities to build and

experience a faith community.

3. To orient students to the responsibility

and experience of service because of

their membership in the Christian

community.

66a

4 To provide students with opportunity

for growth in prayer.

5. To provide instruction in religious

truths and values in such a way that

they become an integrated part of the

school program.

6. To develop a faculty and staff who by

their presence and teaching express an

integrated approach to learning and

living in their lives.

7. To provide an academic program and

environment conducive to the optimal

development of each student.

St. Patrick Handbook at 1, Pl. J.A. vol. Ill, Ex. I, Tab 26.*

Additionally, all students are required to participate in

religion classes, which are taught daily, and to attend all

religious, liturgical, and paraliturgical celebrations. /d. at 10.

At St. Rocco School, “[a]n integral part of the school

program is instruction in religious truths and values. These

values permeates [sic] the whole atmosphere of the school.”

St. Rocco School Handbook at 3, Pl. J.A. vol. II, Ex. I, Tab

27. Each student at St. Rocco School is expected to

contribute a nominal amount for membership in the Society

for the Propagation of the Faith. /d. at 11. Like St. Patrick

School, “[aJll students, whether Catholic or not, participates

[sic] in religion classes, mass, religious activities, and receive

a religion grade.” /d. at 11. Parents are asked to help their

children practice specific prayers at each grade level. For

example, they are to teach their children the Sign of the Cross

* These are the “goals for Catholic schools in the Diocese of Cleveland.”

Pl. J.A. vol. IV, Ex. J, Tab 2 at v. Thirty-four of the forty-six

participating religious schools are affiliated with the Diocese. PI. J.A.

vol. I, Ex. B, Tab 3.

67a

and the Hail Mary in kindergarten and the Our Father and

Glory Be to the Father in first grade. Id.

St. Stanislaus School “is an integral part of the St.

Stanislaus community whose shared mission with parents is

to facilitate Christian values within the context of the core

curriculum. [They] commit [them]selves to the formation of

a faith-filled Catholic community, preparing students for

spiritual development, and future roles as responsible,

knowledgeable, productive Christian individuals.” St.

Stanislaus School Materials, Pl. J.A. vol. II, Ex. 1, Tab 28.

As one of its goals, “St. Stanislaus School will increase their

Catholic Identity by developing opportunities for faith

development of faculty and students.” Jd. As at St. Patrick

and St. Rocco Schools, religion classes are taught daily at all

grade levels and “[nJon-Catholic students attending [the

school] are expected to be a part of the religion program and

activities throughout the year.” /d. Likewise, students and

their families “are expected and obligated to attend and

participate in the week-end liturgy.” /d.

The philosophy of education at St. John Nottingham

Lutheran School is:

It is our belief that the one cardinal objective

of education to which all others point is to

develop devotion to God as our Creator,

Redeemer, and Sanctifier, whose love for us

moves us to show in our every act, thought,

word and desire, our love for Him.

“The Fear of the Lord is the Beginning of

Knowledge.” Proverbs 1:7.

St. John Nottingham Handbook at 2, Pl. J.A. vol. III Ex. I,

Tab 34. Religion is taught at St. John Nottingham Lutheran

68a

through weekly worship chapel services, Bible studies,

catechism, church history, confirmation instruction and

memory. Additionally, the school teaches - reading,

mathematics, spelling, language, social studies, science and

handwriting “with a Christ-centered approach.” Id. at 14

(emphasis in original).

At St. Mark Lutheran School:

The primary focus ... is on our Lord and

Savior, Jesus Christ. In all of our goals, Jesus

Christ must be preeminent. Because jof our

commitment to that focus and to our beliefs

and philosophy, it is highly inconsistent for

any parents to send a child to this school if

they:

° Are not a Christian and/or are not

interested in learning about Jesus

Christ

° Are not living a Christian life or

willing to learn how to lead such a life

e Are not a supporting part of a Christian

congregation through worship and

sharing of time and taients

St. Mark Handbook at 2, Pl. J.A. vol. III, Ex. I, Tab 35. All

students at St. Mark are required to participate in daily

religion classes and to “be instructed in the basic teachings of

God’s Word through an organized program of Christian

education.” Jd. at 28. Each day begins with a classroom

devotion and prayer and the school day is ended with

69a

classroom prayer. /d. Children also attend weekly chapel

services.” Id.

Il. PROCEDURAL HISTORY

Case No. 1:99 CV 1740 was filed on July 20, 1999,

by Plaintiffs Doris Simmons-Harris, the parent of a minor

child enrolled in the Cleveland City School District for the

1999-2000 school year; Marla Franklin, a teacher in the

Lorain City School District; and Steven Behr, pastor of Our

Savior/Nuestro Salvador Church in Lorain, Ohio, against

Defendant Dr. Susan Tave Zelman, in her official capacity as

Superintendent of Public Instruction for the Ohio Department

of Education.

Case No: 1:99 CV 1818 was filed on July 29, 1999,

by Plaintiffs Sue Gatton, Chairperson of Citizens Against

Vouchers; Mary Murphy, a teacher in the Cleveland City

School District; Michael Debose, a pastor in Cuyahoga

County, Ohio; Cheryl Debose and Glenn Altschuld, Ohio

taxpayers; and Deidra Pearson, the parent of a child enrolled

in the Cleveland City School District against Defendants Dr.

Susan Tave Zelman, in her official capacity as

Superintendent of Public Instruction for the Ohio Department

of Education; the State of Ohio through its General

Assembly, Governor and other agents; and Sandra Berry, in

> By reciting only those portions of parent handbooks relating to religion,

the court does not mean to diminish the importance of the instruction that

each school participating in the Voucher Program offers in core subjects

such as math, reading, science and social studies. Given the context

within which this case is presented, however, the relevant question is not

whether or how well these schools educate students in secular subjects,

but whether the aid received through the Voucher Program violates the

Establishment Clause. Accordingly, a review of the way in which

religion is incorporated into the educational philosophy of participating

schools is important to this court's analysis of the Voucher Program.

70a

her official capacity as Program Administrator for the Ohio

Pilot Scholarship Program.

Two groups have intervened as defendants in both

cases. The first group consists of parents and students who

have been enrolled, or seek to enroll, in private schools under

the Program. That group includes Senel Taylor, parent of a

ten-year old child who has attended private school under the

Program for the last two years; Johnnietta McGrady, parent

of two children who seek to attend a private school under the

Program; Christine Suma, parent of three children who have

attended private school under the Program and one child

who, at the time this action was filed, was on a waiting list to

attend private school under the Program, Arkela Winston,

parent of two children who have attended private school

under the Program; and Amy Hudock, parent of a child who

has attended private school under the Program for the past

three school years.

The second group of Intervenors includes nonpublic

schools and parents of students who wish to participate in the

Program. That group includes Hanna Perkins School, Our

Lady of Peace School, Westpark Lutheran School, Lutheran

Memorial Association of Cleveland, Ivy Chambers, Carol

Lambert, and Delories Jones.

As is the case in the instant matter, Doris Simmons-

Harris and Sue Gatton were the lead plaintiffs in the state

court litigation challenging the 1995 program. The Plaintiffs

challenged the 1995 program as a violation of the

Establishment Clause of the First Amendment, and under

several provisions of the Ohio Constitution.

The state trial court consolidated the two cases before

it. On cross-motions for summary judgment, the court

concluded that the 1995 program violated neither the United

Tla

States Constitution nor the Ohio Constitution. The Plaintiffs

then appealed the trial court's decision. In concluding that

the 1995 program violated the Establishment Clause as well

as one provision of the Ohio Constitution, the appeals court

reversed the trial court's decision. | Thereafter, the

Defendants appealed that decision t i

aes o the Ohio Supreme

The 1995 program was struck down b i

Supreme Court in Simmons-Harris v. Goff, 711 Ay

(Ohio 1999). The court held that the program was enacted in

Violation of Section 15(D), Article Il, of the Ohio

Constitution in “that creation of a substantive program in a

general appropriations bill violates the one-subject rule”

found in that provision. /d. at 216. The Ohio Supreme Court

also addressed the federal constitutional issue raised in that

case, whether the pilot program violated the Establishment

Clause of the First Amendment. It concluded, contrary to the

holding of the Ohio Court of Appeals, that it did not.

The Voucher Program was en

Legislature on June 29, 1999. as part of aedieeteten

Bill. See Ohio Rev. Code § 3313.974-3313.979 (Anderson

1999). « is, in all respects pertinent to this litigation, the

same as the original pilot scholarship program enacted by the

Legislature in 1995, which was operative for three successive

school years. As detailed above, the first challenge to the

om 6 phir gn 1:99 CV 1740 was filed on July 20,

; chal :

Soden Set 30, 10D. lenge, case no. 1:99 CV 1818, was

On August 13, 1999, a preliminary injunction

was conducted in which the court porn Aa oral se

from counsel representing Plaintiffs in both cases, the State

and ; both groups of Intervening Defendants. After

considering the submissions on behalf of all the parties and

72a

the arguments of counsel, this court issued its twenty-eight

page order on August 24, 1999, granting Plaintiffs’ Motion

for a Preliminary Injunction.

On August 27, 1999, the cuurt granted a limited stay

of its order enjoining the Program. The stay was made

applicable only to those students who were enrolled in the

1995 program during the previous academic year and was

granted only for one semester or until the court rendered a

final decision on permanent injunctive relief, whichever first

occurred. In light of the limited stay, the court set an

expedited discovery and trial schedule.

The court conducted telephone conferences with

counsel for all parties on September 3 and 17, 1999, in order

to make changes as needed to the discovery and trial

schedules set by the court in its August 27, 1999 order. As a

result of those conferences, the following discovery schedule

was established. On September 10, 1999, counsel for all

parties were to exchange proposed factual stipulations and

requests for documents. Prior to September 17, 1999,

counsel for all parties were ordered to attempt to agree upon

the factual record which would serve as a basis for the

consideration of any summary judgment motions to be filed.

In the event that counsel were unable to agree upon a factual

record, they had until September 22, 1999, to serve formal

discovery requests and notices of deposition. Written

discovery responses were due October 8, 1999. All

remaining discovery was to be concluded by October 29,

1999. The schedule for the briefing of dispositive motions

was set as follows: (a) the dispositive motion deadline was

November 1, 1999; (b) responses were due November 15,

1999: and (c) replies were due November 23, 1999. As in the

court’s August 27, 1999 order, trial was scheduled for

December 13, 1999, at 9:00 a.m.

73a

On August 24, 1999, the State appealed this court’s

order granting Plaintiffs’ Motion for Preliminary Injunction

to the Sixth Circuit Court of Appeals. Both Intervening

Defendants also filed notices of appeal. All Defendants

requested a stay of this court’s preliminary injunction

a — oe this court's August 27, 1999 order

granting a limited stay of its prelimi injunction,

Defendants filed revised briefs with = Sixth Comat

appealing the preliminary injunction with regard to students

who were new to the Voucher Program.

While the aforementioned motions were pendin

before the Sixth Circuit, the State filed a motion for a stay of

the preliminary injunction with the United States Supreme

Court. On November 5, 1999, by a vote of 5-4, the Supreme

Court granted the State’s motion. The

- complete text of that

Treating the application as a request for a stay

of the preliminary injunction, the application

for stay presented to Justice Stevens and by

him referred to the Court is granted. The

preliminary injunction entered by the United

States District Court for the Northern District

of Ohio, case No. 99 CV 1740, on August 24,

1999, is stayed pending final disposition of the

appeal by the Untied States Court of Appeals

for the Sixth Circuit.

Zelman, Superintendent of Pub. Instruction, et al. vy.

— Doris, et al., No. 99A320 (U.S. Nov. 5

‘ . ,

On November 15, 1999, the Sixth Circuit entered an

order, wherein it concluded that the Supreme Court's

decision granting the State’s motion for a stay rendered moot

74a

the Defendants’ motions for stay pending in that Court. In

light of the expedited schedule set by this court, the Sixth

Circuit placed all appeals in this matter in abeyance pending

this court’s final determination of the case.

Ill. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(c) governs

summary judgment motions and provides:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on

file, together with the affidavits, if any, show

that there is mo genuine issue as to any

material fact and that the moving party 1s

entitled to a judgment as a matter of law....

Rule 56(e) specifies the materials Properly submitted

in connection with a motion for summary judgment:

Su ing and opposing affidavits shall be

ae eee knowledge, shall set forth

such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is

competent to testify to the matters stated

therein.... The court may permit affidavits to

be supplemented or opposed by depositions,

answers to interrogatories, or further

affidavits. When a motion for summary

judgment is made and supported as provided

in this rule, an adverse party may not rest

upon the mere allegations or denial of the

adverse party’s pleading, but the adverse

party’s response, by affidavits or as otherwise

provided in this rule, must set forth specific

75a

facts showing that there is a genuine issue for

trial. If the adverse party does not so respond,

summary judgment, if appropriate, shall be

entered against the adverse party.

However, the movant is not required to file affidavits or other

similar materials negating a claim on which its opponent

bears the burden of proof, so long as the movant relies upon

the absence of the essential element in the pleadings,

depositions, answers to interrogatories, and admissions on

file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548

(1986).

In reviewing summary judgment motions, this court

must view the evidence in a light most favorable to the non-

moving party to determine whether a genuine issue of

material fact exists. Adickes v. S.H. Kress & Co., 398 U.S.

144, 90 S.Ct. 1598 (1970); White v. Turfway Park Racing

Ass'n, Inc., 99 F.2d 941, 943-44 (6" Cir. 1990). A fact is

“material” only if its resolution will affect the outcome of the

lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S.Ct. 2505, 2510 (1986). Determination of whether a

factual issue is “genuine” requires consideration of the

applicable evidentiary standards. Thus, in most civil cases

the court must decide “whether reasonable jurors could find

by a preponderance of the evidence that the [non-moving

party] is entitled to a verdict.” Jd. at 252, 106 S.Ct. at 2512.

Summary judgment is appropriate whenever the non-

moving party fails to make a showing sufficient to establish

the existence of an element essential to that party’s case and

on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Moreover, “the

trial court no longer has a duty to search the entire record to

establish that it is bereft of a genuine issue of material fact.”

Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6"

76a

Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d

1029, 1034 (D.C. Cir. 1988)). The non-moving party is

under an affirmative duty to point out specific facts in the

record as it has been established which create a genuine issue

of material fact. Fulson v. City of Columbus, 801 F. Supp. |,

4 (S.D. Ohio 1992). The non-movant must show more that a

scintilla of evidence to overcome summary judgment; it is

not enough for the non-moving party to show that there is

some metaphysical doubt as to material facts. Id.

IV. THE ESTABLISHMENT CLAUSE

A. History

In promulgating the First Amendment, the framers of

the Bill of Rights sought to protect the colonists’ right to be

free from government inculcation of the theologies and

doctrines of a faith to which they did not subscribe. James

Madison, one of the authors of the First Amendment, feared

that without such protection, the risk of governmental

oppression intensified: “Wherever the real power in a

Government lies, there is the danger of oppression. In our

Governments the real power lies in the majority of the

community, and the invasion of private rights is chiefly to be

apprehended, not from acts of Government contrary to the

sense of its constituents, but from acts in which the

Government is the mere instrument of the major number of

the Constituents.” James Madison to Thomas Jefferson, |

October 17, 1788, reprinted in The Essential Bill of Rights

326 (Gordon Lloyd et al. eds., University Press of America

1998) (emphasis in original). To Madison, the freedom to

believe and practice the religion of one’s choice was a

fundamental right and was central to a bill of rights.

In his famous Memorial and Remonstrance in which

he urged the State of Virginia to reject legislation which

77a

would financially support the propagation of Christianity as

the state religion, Madison voiced his opinion on the proper

relationship between government and religion: “{A]

Government will be best supported by protecting every

citizen in the enjoyment of his Religion with the same equal

hand which protects his person and his property; by neither

invading the equal rights of any sect, nor suffering any Sect

to invade those of another.” James Madison’s Memorial and

Remonstrance, June 20, 1785, reprinted in The Essential Bill

of Rights, supra, at 228. The basis for his belief that the two

should remain separate was his fear of what would happen to

nee if the government were to use laws to regulate their

iefs:

The freemen of America did not wait till

usurped power had strengthened itself by

exercise, and entangled the question in

precedents. They saw all the consequences in

the principle, and they avoided the

consequences by denying the principle. We

revere this lesson too much soon to forget it.

Who does not see that the same authority

which can establish Christianity, in exclusion

of all other Religions, may establish, with the

same ease, any particular sect of Christians, in

exclusion of all other sects? That the same

authority which can force a citizen to

contribute three pence only of his property for

the support of any one establishment, may

force him to conform to any other

establishment in all cases whatsoever?

Id. at 226.

. Thomas Jefferson's convictions and concerns

mirrored those of Madison. In his Statute of Religious

78a

Liberty, he spoke out against the dangers of requiring citizens

to support a faith which was not tneir own: “[T]o compel a

man to furnish contributions of money for the propagation of

opinions which he disbelieves, is sinful and tyrannical; that

even the forcing him to support this or that teacher of his own

religious persuasion, is depriving him of the comfortable

liberty of giving his contributions to the particular pastor,

whose morals he would make his pattern, and whose powers

he feels most persuasive to righteousness....” Jefferson's

Statute of Religious Liberty, reprinted in The Essential Bill

of Rights, supra, at 231.

Madison’s and Jefferson's fears and concerns are

reflective of those which resulted in the passage of the

Establishment Clause—the first clause of the First

Amendment of the U.S. Constitution. Its words are simple

enough: “Congress shall make no law respecting an

establishment of religion...” Since its inception, though, the

Establishment Clause has presented some of the most

difficult questions of interpretation and application faced by

the courts. As the Supreme Court has stated, “in many of

these decisions ‘we have expressly or implicitly

acknowledged that we can only dimly perceive the lines of

demarcation in this extraordinarily sensitive area of

constitutional law."” Mueller v. Allen, 463 U.S. 388, 393,

103 S.Ct. 3062, 3065-66 (1983) (quoting Lemon v. Kurtzman,

403 U.S. 602, 612, 91 S.Ct. 2105, 2111 (1971)).

While Madison and Jefferson may have espoused a

belief in a firm wal! between church and state, “a hermetic

separation of the two is an impossibility [the Court] has never

required.” Roemer, Ill v. Board of Pub. Works of Maryland,

426 US. 736, 746, 96 S.Ct. 2337, 2344 (1976). The

Supreme Court has “recognize[d] that sectarian schools

perform secular, educational functions as well as religious

functions, and that some forms of aid may be channeled to

79a

the secular without providing direct aid to sectarian.”

Community for Pub. Educ. & Religious ben v. Ny, nd

413 U.S. 756, 775, 93 S.Ct. 2955, 2967 (1973). It is now

clearly established that not every law which confers a benefit

on a religious institution violates the Constitution. Some

which confer only “indirect,” “remote” or “incidental

benefits” have been found to be constitutional. See, e

Everson v. Board of Educ., 330 U.S. 1,67 S.Ct. 504 (1947),

While line drawing has been difficult in actual cases, a brief

examination of some of the Supreme Court's Establishment

Clause decisions provides a useful background for assessi

the constitutionality of the Voucher Program. ™

The court has approved tax deduction

bus transportation by students, regardless cbr

attended public or private school, including polis

schools. /d. it also has approved the provision of textbooks

at parochial schools when textbooks were not provided to

students on the basis of whether they attended public or

private school. Board of Educ. v. Allen, 392 U.S. 236. 88

S.Ct. 1923 (1968). Until recently, the Court held that public

employees could not provide instruction in secular subje ts

such as giving remedial and accelerated instruction ae

premises of religious institutions. See, @.g., Aguilar v

Felton, 473 U.S. 402, 105 S.Ct. 3232 (1985), overruled by

Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997 (1997):

School Dist. Of Grand Rapids v. Ball, 473 US. 373. 105

S.Ct. 3216 (1985), overruled by Agostini v. F elton, 521 U.S

203, 117 S.Ct. 1997 (1997); Meek v. Pitinger, 421 U.S. 349,

5 S.Ct. 1753 (1975). However, the Court reversed itself on

this issue in Agostini v. Felton, 521

prong on, 521 U.S. 203, 117 S.Ct. 1997

a. The Court has generally held that a government

| not provide scholarship assistance to students which

supports religious instruction or indoctrination. Nyquist, 413

80a

U.S. 756, 93 S.Ct. 2955. a it a, ¥en of

‘cholarship assistance where the aid to students

moti pena made generally available without ee

to the public-nonpublic or sectarian-nonsectarian nature =

the schools to be benefited. In such circumstances, al

ultimately supports the educational program of a rem

institution only as the result of the private choice of the al

recipient. Consequently, there is no religious indoctrination

attributable to the government. The Court has also found a

the eligibility criteria under this type of program are not a

as to influence the recipient's choice of whether to attend a

sectarian or nonsectarian institution. Witters v. pty a

Dep't of Servs. For the Blind, 474 U.S. 481, 106 S.Ct.

(1986); Agostini, 521 U.S. 203, 117 S.Ct. 1997.

B. The Applicable Standard in Establishment Clause Cases

ore reaching the merits of the parties’ respective

claims, 7h nr identify the standard under which

these claims are properly analyzed. The applicable test used

to analyze Establishment Clause challenges 1s grounded in

the principles set forth by the Supreme Court in Lemon v.

Kurtzman, 403 U.S. 602, 91 S.Ct. 2125 (1971). In Lemon,

the Supreme Court established the following three-part test:

First, the statute must have a secular

legislative purpose, second, its principal or

primary effect must be one that neither

advances nor inhibits religion, finally, the

statute must not foster an excessive

entanglement with religion.

Id. at 612-13, 91 S.Ct. at 2111 (citations omitted). if the

challenged legislation fails to meet any part of this test, "

violates the Establishment Clause. While the Lemon test is

generally accepted as the cornerstone of Establishment

Clause analysis, limits on its effectiveness in analyzing the

myriad of factual scenarios that arise in this area of the law

have been recognized. See Hunt v. McNair, 413 U.S. 734,

741, 93 S.Ct. 2868, 2873 (1973) (reasoning that the Lemon

test provides “no more than [a] helpful signpost” in analyzing

Establishment Clause challenges.) Despite its perceived

limitations, the Supreme Court has consistently applied this

test in Establishment Clause challenges. See Mueller, 403

U.S. at 394, 103 S.Ct. at 3066; Witters, 474 U.S at 485, 106

S.Ct. at 748.

Indeed, in Agostini, 521 U.S. 203, 117 S.Ct. 1997, the

Supreme Court recently reaffirmed the importance of the

Lemon test in Establishment Clause cases. It confirmed the

need to ascertain whether a law has a secular purpose and

whether it has the effect of advancing religion, but altered the

test's analytical structure by concluding that the

“entanglement” prong should be considered as an aspect of

the “effects” inquiry.

In collapsing the Lemon test from a three-prong to a

two-prong inquiry, the Agostini Court also divided the second

prong of the Lemon test into three specific sub-parts.

According to Agostini, challenged governmental aid passes

constitutional muster if it does not: “result in governmental

indoctrination; define its recipients by reference to religion;

or create an excessive entanglement.” /d. at 234, 117 S.Ct. at

2016. As discussed infra, in clarifying the “effects” prong of

the Lemon test, the Court did not substantially alter the

analysis to be applied in Establishment Clause challenges to

programs in which the government provides funding that

directly aids the educational function of religious schools.

The analysis in those cases under the first and second prongs

of the test is still grounded in the principles set forth in

Lemon and in cases applying the Lemon test.

— - .<

82a

Plaintiffs contend that the Voucher Program is

unconstitutional under Nyquist, 413 U.S. 756, 93 S.Ct. 2955,

because it is factually indistinguishable form the tuition

reimbursement program struck down in that case. They

argue that the Voucher Program has the impermissible effect

of advancing religion, as did the program at issue in Nyquist.”

Defendants, on the other hand, argue that the Voucher

Program is factually dissimilar from the program at issue in

Nyquist and that this case should be governed by more recent

Supreme Court cases in which the Court has found programs

challenged under the Establishment Clause to be

constitutional. In Section V, the court will review Nyquist

and assess whether that case serves as precedent for this one

and if so, whether the Voucher Program violates the

Establishment Clause, as did the program in Nyquist. In

Section VI, it will address Defendants’ arguments that cases

subsequent to Nyquist suggest there are meaningful

distinctions between that case and this one.

V. THE VOUCHER PROGRAM UNDER NYQUIST

A. Nyquist

In Committee for Pub. Educ. & Religious Liberty v.

Nyquist, 413 U.S. 756, 93 S.Ct. 2955 (1973), the Supreme

Court found unconstitutional a New York State program

intended to provide assistance, in several different forms, to

nonpublic elementary and secondary schools. /d. The

program contained three sections, only the second of which is

directly relevant to the instant case. The first established

direct money grants form the State to nonpublic, nonprofit

elementary or secondary schools serving a high concentration

of pupils from low-income families and was to be used for

© At the outset, it is important to note that Plaintiffs do not challenge the

secular purpose of the Voucher Program.

83a

the maintenance and repair of school facilities. /d. at 762, 93

S.Ct. at 2960. The second section was a tuition grant

program, which provided for partial tuition reimbursements

to low-income parents whose children attended elementary or

secondary nonpublic schools. /d. at 764, 93 S.Ct. at 2961

The last section gave some limited state income tax relief to

parents who did not qualify for reimbursement grants. /d.

. The tuition reimbursement program i

applied to parents of children i aia ‘al po ne

schools, not just private, sectarian schools. The

reimbursement grants were limited to $50 for each grade

school child and $100 for each high school child. /d. Only

parents with an annual taxable income of less than $5,000

qualified for reimbursement. /d. In order to receive

payment, a parent was required to submit a verified statement

to the Commissioner of Education containing a receipted

tuition bill. Reimbursements by the State could not exceed

50% of the tuition paid by the parents. /d.

Nearly 20% of New York State’s elementary and

secondary population attended over 2, 000 nonpublic schools

and approximately 85% of these schools were church-

affiliated.” /d. at 768, 93 S.Ct. at 2963. While no detailed

factual record was developed in the underlying cases, the

Nyquist Court noted that several pertinent generalizations

could be made about the benefited schools. The qualifying

institutions could incorporate a number of religious

characteristics, including:

7

It appears that the religious nature of a school was in part ascertained b

reviewing New York State Education Department records po

determining whether such records identified a given school as church-

affiliated. See Nyquist, 413 U.S. at 768 n.23, 93 S.Ct. at 2963 n.23

84a

(a) imposfition of] religious restrictions on

admissions; (b) requir[ing] attendance of

pupils at religious activites; (c) requir[ing]

obedience by students to the doctrines and

dogmas of a particular faith; (d) requiring]

pupils to attend instruction in the theology or

doctrine of a particular faith; (e) [that the

school is an] integral part of the religious

mission of the church sponsoring it, (f) [that

the school] ha[s] a substantial purpose the

inculcation of religious values; (g) impos[ition

of] religious restrictions on faculty

appointments; and (h) impos[tion of] religious

restrictions on what or how the faculty may

teach.

Id. at 768, 93 S.Ct. at 2963 (quoting Committee for Pub.

Educ. And Religious Liberty v. Nyquist, 350 F. Supp. 655,

663 (S.D.N.Y. 1972)). However, the Court made clear that

“the characteristics of individual schools [could] vary widely

from [this] profile.” /d.

Applying the Lemon test, the Court first found that

the tuition grant program easily passed the secular purpose

test. The articulated purposes of the program were to

promote pluralism and diversity among New York's public

and nonpublic schools and to alleviate the concern that the

State’s overburdened public school system would suffer

significant harm if a large portion of children who had been

attending nonpublic schools decided to return to the public

schools.

Under the “effects” prong of the Lemon test, the

Supreme Court found the tuition reimbursement program,

“designed to allow direct, unrestricted grants of $50 to $100

per child ... as reimbursement to parents in low-income

85a

brackets who send their children to nonpublic schools, the

bulk of which is concededly sectarian in orientation ¥

violated the Establishment Clause of the First Amendment

Id. at 780, 93 S.Ct. at 2969. There was no doubt, held the

Supreme Court, that such grants “could not, consistently with

the Establishment Clause, be given directly to sectarian

schools...." Jd. The defendants argued that the program

should be saved because the aid was delivered to the parents

and was not given directly to the benefited schools. /d. at

781, 93 S.Ct. at 2969. As support, they maintained that New

York's tuition reimbursement program was similar to

programs upheld by the Court in Everson v. Board of Educ

330 U.S. 1, 67 S.Ct. 504 (1947), and Board of Educ. V. Allen.

392 U.S. 236, 88 S.Ct. 1923 (1968). In Everson. the Court

upheld tax deductions for parents who expended bus fare for

children who attended religious schools. The Allen Court

ae en of text books for children who attended

parochial schools. In both ‘

oe cases, grants went directly to

The Nyquist Court rejected the notion that the tuition

deduction program was consistent with the Establishment

Cc lause simply because aid went to the parents and not

directly to the schools. As the Court explained, whether aid

goes through parents or is given directly to schools is only

one of many factors to be considered in determining whether

Or not a given program is unconstitutional. To clarify, the

Court detailed the reasons why the programs upheld in

Everson and Allen were significantly different from the

nature of the tuition grants involved in Nyquist:

In Everson, the Court found the bus fare

program analogues to the provision of services

such as police and fire protection, sewage

disposal, highways, and sidewalks for

parochial schools. Such services, provided in

86a

common to all citizens, are ‘so separate and so

indisputably marked off from the religious

function,’ that they may fairly be viewed as

reflections of a neutral posture toward

religious institutions. Allen is founded upon a

similar principle. The Court there repeatedly

emphasized that upon the record in that case

there was no indication that textbooks would

be provided for anything other than purely

secular courses.

Id. at 781-82, 93 S.Ct. at 2970 (citations omitted).

Contrary to the grants at issue in Everson and Allen,

the tuition grants in Nyquist were not restricted to supporting

only secular aspects of a school’s educational program. /d. at

783, 93 S.Ct. at 2971. There was no attempt to separate

secular from religious educational functions and to ensure

that the monies provided by the State supported only the

former. Concluding that the program had the impermissible

effect of advancing religion, the Court stated:

Indeed, it is precisely the function of New

York's law to provide assistance to private

schools, the great majority of which are

sectarian. By reimbursing parents for a

portion of their tuition bili, the State seeks to

relieve their financial burdens sufficiently to

assure that they continue to have the option to

send their children to religion-oriented

schools. And while the other purposes for that

aid—to perpetuate a pluralistic educational

environment and to protect the fiscal integrity

of overburdened public schools—are certainly

unexceptionable, the effect of the aid is

87a

unmistakably to provide desired financial

support for nonpublic, sectarian institutions.

Id.

Because the Court found that the wuiti grant

' tion

program at issue in Nyquist had the primary effect of

ae religion, it did not address the third prong of the

mon test, whether the program fostered i

entanglement between church and state. page

Before analyzing the Voucher Prog

Nyquist, it is important to note that the aoe marr

significant that: Nyquist Court found it

[bjecause of the manner in which we have

resolved the tuition grant issue, we need not

decide whether the significantly religious

character of the statute's beneficiaries might

differentiate the present cases from a case

involving some form of public assistance (e.g.,

scholarships) made available generally

wren regard to the sectarian-nonsectarian

or public-nonpublic nature of the instituti '

benefited. Thus, our decision today cain

compel, as appellees have contended, the

conclusion that the educational assistance

provisions of the ‘G.I. Bill’ impermissibly

advances religion in violation of the

Establishment Clause.

Id. at 782 n.38, 93 S.Ct. at 2970 n.38 (citations omi

This language has been often-quoted in wher sone

Establishment Clause cases in which the Court has concluded

that the challenged programs were constitutional. As

discussed below, Defendants argue that this case should be

88a

governed by these post-Nyquist cases because the Voucher

Program is the type of program contemplated by the Court in

footnote 38.

B. The Voucher Program

1. The Purpose of the Program

As in Nyquist, there is no question that the Voucher

Program passes the secular purpose of the Lemon test.

Indeed, as previously noted, Plaintiffs do not challenge the

secular purpose of the legislation. Similar to Nyquist, the

Program seeks to provide nonpublic school alternatives

primarily to low-income students for acceptable reasons.

Nevertheless, “the propriety of a legislature's purposes may

not immunize from further scrutiny a law which . . . has the

primary effect that advances religion.” /d. at 774, 93 S.Ct. at

2966. Thus, the next inquiry is whether the Voucher

Program has the effect of advancing religion.

2. The Effect of the Program

The Voucher Program is clearly similar to the tuition

reimbursement program in Nyquist in two respects. First,

while both public and private schools are eligible, only

private schools have chosen to participate in the Program,

and the vast majority of them are parochial. Like Nyquist,

where 85% of the benefitted schools were parochial, over

82% of the schools participating in the Voucher Program are

religiously affiliated. Thus, as in Nyquist, the “bulk of” the

aid under the Voucher Program flows to schools which are

“sectarian in orientation.” /d. at 780, 93 S.Ct. at 2969.

Second, as in Nyquist, the Voucher Program provides

unrestricted tuition grants to parents whose children are

eligible for the Program and who attend qualifying schools.

Like the program in Nyquist, there “*has been no endeavor to

89a

guarantee the separation between secular and religious

educational functions and to ensure the State financial aid

supports only the former."” /d. at 783, 93 S.Ct. 2971-72

(quoting Lemon, 403 U.S. at 613, 93 S.Ct. at 2111).

AN Defendants however, argue that the programs are

dissimilar in several ways which would require that the

Voucher Program be upheld whereas the Nyquist program

was struck down. First, the Intervening Defendants argue

that even if the large majority of schools participating in the

Voucher Program is sectarian, the Program is constitutional

because the primary focus of the schools is secular education.

They maintain that Voucher schools actually educate their

students better than do public schools, asserting that “[iJf .

Scholarship children receive a superior secular education and

become better citizens because of their parent's school

choice, the primary effect of the Program is secular rather

than religious.” Def. Hanna Perkins Motion at 4-12."

Ly

Along the same lines, the State spends nearly one-third of its brief

explaining how the primary effect of the Voucher Program is to provide

experimental data on whether the availability of such a program will

improve educational Opportunities for disadvantaged students. According

to the State, if a private school adequately teaches core secular subjects

‘then the mere fact that ... [the] school also teaches religion to its

students cannot mean that the private school now suddenly serves the

State's secular goals less well than if it did not add religion to its

teaching.” Def. State Motion at 30.

’ As cited herein, the various briefs in support of the parties’ respective

positions are abbreviated as follows:

< wen o support of motion for summary judgment are cited

pnt = —— to motions for summary judgment are

(3) reply briefs are cited as “reply”.

90a

The Nyquist Court squarely addressed this argument.

Focusing on the term “primary,” defendants there asserted

that the Court had to decide whether the New York law had

the “primary effect” of subsidizing religion or promoting the

secular objectives the Court found to be legitimate. In

holding that a fiading of the former did not necessarily

preclude a finding of the latter, the Court said: “We do not

think that such metaphysical judgments are either possible or

necessary. Our cases simply do not support the notion that a

law found to have a ‘primary’ effect to promote some

legitimate end under the State's police power is immune from

further examination to ascertain whether it Also has the direct

and immediate effect of advancing religion.” /d. at 283 n.39,

93 S.Ct. at 2971 n.39. Thus, even if it could be demonstrated

that students participating in the Voucher Program receive a

superior education to children in the Cleveland Public

Schools, this fact does not obviate this court’s duty to further

question whether the Program also has the direct and

immediate effect of advancing religion.

Second, citing to only several of the most religiously

restrictive characteristics in the “profile” developed by the

Nyquist Court, Defendants seek to distinguish that case by

arguing that the schools participating in the Voucher Program

do not exhibit each and every characteristic set forth in the

Nyquist profile. Specifically, they argue that whereas the

benefitted schools in Nyquist placed religious restrictions on

admission, over sixty percent of the students in the Voucher

Program are not of the same faith as their school’s sponsor.

There is nothing in the Nyquist opinion to suggest that

a program of this type runs afoul of the Establishment Clause

only when the schools have the exact profile as in that case.

The Court made clear that no each of the schools fit the

profile, explicitly stating that “the characteristics of

individual schools may vary widely from [the] profile.” /d.

9la

at 768, 93 S.Ct. at 2963. More importantly, the Nygui

Court clearly did not rely on the fact that he tub

Nyquist were “extremely,” as opposed to only “moderately”

or “mildly” religious in reaching its conclusion. The relevant

inquiry was whether schools were sectarian or nonsectarian.

The Nyquist Court made this determination in part by

reviewing the New York State Education Department rec

This text is long and has been trimmed here. Open the source document for the complete record.