# Appendix — Zelman v. Simmons-Harris

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 639

## Text

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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

19a

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-

20a

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

23a

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

24a

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-

25a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0466%3A03. Public record. Not legal advice.