Reply Brief — Zelman v. Simmons-Harris

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Nos. 00-1751, 00-1777, 00-1779

,) Supreme Court, US.

|49 FILED

JAN 22 2002

In the Supreme Court of the United fates CLERK

SUSAN TAVE ZELMAN, Superintendent

of Public Instruction, et al.,

Petitioners,

Vv.

DORIS SIMMONS-HARRIS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

REPLY BRIEF OF STATE PETITIONERS

KENNETH W. STARR

ROBERT R. GASAWAY

Kirkland & Ellis

655 Fifteenth Street, N.W.

Washington, DC 20005

(202) 879-5000

BETTY D. MONTGOMERY

Attorney General of Ohio

DAVID M. GORMLEY

State Solicitor

JUDITH L. FRENCH*

KAREN L.. LAZORISHAK

JAMES G. TASSIE

ROBERT L. STRAYER

Assistant Attorneys General

30 East Broad Street, 17" Floor

Columbus, OH 43215-3428

(614) 466-2872

*Counsel of Record

TABLE OF CONTENTS

Ce Se FET RE cictcticcncieentsneimesitnmiememanmmnens il

Soe UIE: OUI ccasiccescasencectantesetetsdinmmensestnsemnemnetniennsnnseiees I

FUR UMIII TS sececscsnsssnnessansicesnepenensenccctennteetatunteneniatgentenminsesn 3

I, THE OHIO PROGRAM IS A RELIGIOUSLY-

NEUTRAL PROGRAM OF PRIVATE CHOICE. ... 4

A. a ee CI ccscnessscsiccnnsessesnesnennesnnecies 9

B. Religiously-Neutral Criteria ................::0000 16

I. NYQUIST DOES NOT GOVERN THIS CASE....... 18

CONCLUSION ........ stasesousssseusvesenecsntessnssssecsnnssassaseseneoensneens 20

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

$21 U.S. 203 (1997)..cccccccccsesccccssccsoseccsscescsecsovccces 9, 20

Aguilar v. Felton,

473 U.S. 402 (19B5)...cccrcccessorsrccssscccccccocsscossorseeseees 20

Board of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,

$12 U.S. GBT (1994)..ccccccscscccscsccccccceevecccesccocsssees 11,12

Bowen v. Kendrick, |

487 U.S. 589 (1988).........sccccssscsssssssssressessreseenees 13, 14

Committee for Pub. Educ. & Religious

Liberty v. Nyquist,

413 U.S. 756 (1973). ccccccoccvsccccesscccccccccsssccsssceees passim

Edwards v. Aguillard,

4B2 U.S. 578 (19B7)...cccrcrsercrerorcscescoccccescrseccoosseeeees 13

Everson v. Board of Educ. of Ewing,

330 U.S. 1 (1947). .ccccccossocesccocccccscccsscsosescsoscscsocesesceees 5

Flast v. Cohen,

FD2 U.S. 83 (19GB)...cccerrccorerersssercsscecscocescoccccssccssecceses 8

Good News Club v. Milford Cent. Sch.,

121 S. Ct. 2093 (2001).....cccccccccssersserreserreeeeneenes 5, 13

Lee v. Weisman,

S05 U.S. 577 (1992).......sccccrccccscorcsseserssescescosenseeses 13

Mitchell v. Helms,

530 U.S. 793 (2000).......:cccsserreessseeesseeseseesssessnnnnnnees 7

Mueller v. Allen,

ee Se ea ccctenennenenssnsnanensemeensenneneemnens passim

Planned Parenthood of Southeastern Pa. v. Casey,

Se aan: Se UT cscininienendennentntenbetnicennsntenmatennaninns 20

Rosenberger v. Rector & Visitors of Univ. of Va.,

ee ie i rtcenccnccensenmnnmsveminneeinmemenene 6,7

. San Antonio Indep. Sch. Dist. v. Rodriguez,

re ey © Ge ee rrcscesnentenessssninarsesmamagmennenmeseme 16

School Dist. of the City of Grand Rapids v. Ball,

a See cicnnienncenissieatentenninnninmenemennenenees 20

Simmons-Harris v. Zelman,

234 F.3d 945 (6 Cir. 2000) .......csccssesccssneeeesseees 10, 14

Sloan v. Lemon,

Re es CHEE Oe cnniancensssmecensneienmeen 2, 4, 10, 19

Wallace v. Jaffree,

TE 16

Widmar v. Vincent,

eee 19

Witters v. Washington Dep't of Servs. for the Blind,

I es GS Cee iscenensenssensessnsetessnnmennemnennse passim

Wolman v. Walter,

TTR a TC 17

Zobrest v. Catalina Foothills Sch. Dist.,

EE ET 7,9

Statutes

R.C. 3313. 97G(A)(3)....ceccecessececescssseseserensersnessensseesssnenssnansenes 7

R.C. 3313. 9TG(A)(4)..ccccccceencee covesennerenseeneeessnnenensnnnensnsnnnnees 7

R.C. 3313.976(A)(6)......cecescssssesersnrssensenesnensssensnenennsnenrsnennenes 7

R.C. 3313. 9TG(A)(B)....ccceeccccceeserecseneterseseeenessenseneessneneesnnnnnes 15

R.C. 3319. 979 A)(2)....cecscsscecerssssssrssserersnnenensensessesessssnnseseenes 6

Other Authorities

GAO Rep. No. 01-914 School Vouchers: Publicly F unded

Programs in Cleveland and Milwaukee

(August 31, 2001) ........c.rsssseersrsesnsnsnssesnenenenensnsnsenens 15

INTRODUCTION

Respondents urge the Court to brush aside the

compelling context of the Ohio Program and to focus

narrowly on the scholarship component. Little is said about

the intertwined socioeconomic and academic problems that

Cleveland faced in the mid-1990’s and that continue to

plague inner-city districts across the country. Respondents

instead trumpet an exclusionary approach mandated, as they

see it, by Committee for Public Education & Religious

Liberty v. Nyquist, 413 U.S. 756 (1973). Under respondents’

view, States are disabled—due to the high percentage of

religiously-affiliated schools that prevail not only in

Cleveland but in much of the nation—from providing a

system of genuine choice for parents who qualify under

indisputably neutral criteria.

As we demonstrated in our opening brief, however,

Ohio’s General Assembly, with the full approbation of

Governor Voinovich in 1996 and Governor Taft in 1999,

responded comprehensively to the needs of Cleveland’s low-

income families, and fashioned a program that avails itself of

virtually every tool potentially available for providing better

educational opportunity. From after-hours tutoring for public

school students to encouraging surrounding districts to accept

Cleveland schoolchildren, Ohio has implemented common-

sense, practical solutions to the seemingly intractable

problems facing so many inner-city students.

To interdict Ohio’s program, respondents perform

elaborate, but ultimately unconvincing, contortions of this

Court’s considerable body of Establishment Clause law.

Faced with this Court’s emphasis Term after Term on the key

elements of true private choice and neutrality, respondents

look backward a generation ago and then, in a novel act of

legal surgery, graft Witters v. Washington Department of

Services for the Blind, 474 U.S. 481 (1986), onto Nyquist and

Sloan v. Lemon, 413 U.S. 825 (1973). This is classic pick-

and-choose advocacy, plucking language from one setting

and planting it elsewhere. It is an approach that studiously

neglects this Court’s neutrality and private choice

teachings—teachings on which policymakers in Ohio (as

well as Wisconsin and Florida) have come to rely.

If, as we maintain, Ohio’s program satisfies this

Court’s standards for religiously-neutral programs affording

true private choice, then respondents—and the Court of

Appeals majority—are in error. On those twin scores, there

can be no doubt that the Ohio Program passes muster: first,

because program eligibility for both schools and students is

determined by religiously-neutral criteria; and, second,

because no state money, not one cent of Ohio funding, flows

to any religiously-affiliated school without an express

parental decision as to what is right for that family’s child.

This indispensable requirement of a prior, parental decision

that is entirely unchannelled by state actors is one that

respondents would cavalierly dismiss. But respondents’

alternative approach of attributing to Ohio the responsibility

for managing the makeup of Cleveland’s private-school

universe is not only counterintuitive, it tugs at this Court's

contrary teachings in Mueller v. Allen, 463 U.S. 388 (1983).

Mueller recognizes authoritatively that individuals in our

society may, as a matter of conscience, establish religiously-

affiliated elementary schools and that state benefits may flow

indirectly to those schools, so long as parents freely choose

their services.

In the end, respondents’ eloquent calls for freedom of

conscience ironically suggest results that are the polar

opposite of their rigidly exclusionary approach. Put simply,

States need not and should not display exclusion-driven

animosity toward duly accredited private schools on the basis

of religious affiliation.

ARGUMENT

This case poses a fundamental issue in the nation’s

struggle to improve the lifetime prospects of its school

children: Whether the Constitution forbids state educators

from using educational choice as a policy tool for making an

immediate difference in the lives of disadvantaged students.

That this tool does in fact make a difference is reflected

above all in low-income parents’ own assessments of the

Ohio Program, see Brief of State Petitioners (“State Brief”) at

10, and similar programs elsewhere. In-depth follow-up

studies of the pioneering Milwaukee Parental Choice

Program (“MPCP”) conciude, for example, that choice-

program parents are more satisfied in every respect with their

chosen private schools than with their former public schools.

See Brief Amicus Curiae of Wisconsin at 15. Milwaukee

parents are far less likely to change their child’s chosen

school, id., and much more likely to become involved in their

child’s education, id. at 16.

Like their parents, choice-program students are

generally more involved in their schools. See Brief Amicus

Curiae of American Education Reform Council (“AERC”) at

9-10. And a mountain of evidence demonstrates that

classrooms in school-choice programs are, on average,

significantly more racially integrated than their public school

counterparts. See Brief Amicus Curiae of Black Alliance for

Educational Options at 25-26; Brief Amici Curiae of Center

for Education Reform, et al., at 26; Brief Amicus Curiae of

Wisconsin at 16.

Parental satisfaction, student involvement, and racial

integration are important, but the critical yardstick for any

school is academic performance. It is significant, then, that

two independent studies have measured academic gains for

the (mostly low-income) Ohio Program students as compared

to their peers. See State Brief at 10. Studies of private,

means-tested scholarship programs in New York City,

Washington, D.C., and Dayton, Ohio, have similarly found

academic gains from choice. See Brief Amicus Curiae of

AERC at 7. And three separate studies of the Milwaukee

program conclude that MPCP students’ performance is as

good as or better than that of their public school counterparts.

See Brief Amicus Curiae of Wisconsin at 16-17. In view of

such evidence, it would be troubling if the Constitution were

to erect, as respondents suggest, a nearly insuperable barrier

separating low-income children from the educational

opportunities their more affluent peers take for granted.

Nothing in the Establishment Clause demands such a socially

dysfunctional result.

I. THE OHIO PROGRAM IS A RELIGIOUSLY-

NEUTRAL PROGRAM OF PRIVATE CHOICE.

Both sets of respondents seek to resurrect bygone

modes of constitutional inquiry. They reject, in particular,

the Court’s recent articulations of the principles of true

private choice, governmental neutrality toward religion, and

freedom of conscience. They revert instead to long-

discarded notions of constitutionally-mandated hostility

between religious and governmental institutions.

Even on their face, respondents’ arguments are not

just distinct, but somewhat contradictory. The Simmons-

Harris respondents contrive a test based on a narrow reading

of this Court’s decision in Witters and a never-before-seen

“Nyquist-Sloan-Witters trilogy.” While acknowledging that

the State “issue[s] tuition voucher checks to the parents of

selected children,” Brief for Respondents Doris Simmons-

Harris, et al., (“Simmons-Harris Brief”) at 1, the Simmons-

Harris respondents still insist that Program scholarships

represent impermissible direct subsidies to participating

religious schools. Specifically, they allege that the structure

of Ohio’s program purportedly makes inevitable a flow of

significant amounts of aid to schools with religious

affiliations. /d. at 12. For the Simmons-Harris respondents,

school aid programs can be neatly arranged along a

continuum defined by the predominance of religious

affiliations. One pole of that continuum stands within

constitutional limits; the other stands outside. Tellingly, the

location of the constitutional tipping-point in the vast

expanse in between is nowhere defined. /d. at 24-25.

In sharp contrast, the Gatton respondents begin from

an opposite (and equally faulty) premise—that the

“automatic endorsement to religious schools” of checks

initially made payable to parents produces “the parents’

rubber-stamped endorsement” of tuition vouchers. Brief of

Respondents Sue Gatton, et al., (“Gatton Brief”) at 8-9. The

Gatton respondents thus insinuate that the Program’s

payment mechanisms are a sham for disguising direct aid to

schools as indirect aid to parents. /d. Once the parents’

‘tuition reaches religious schools, the Gatton respondents

argue, there are no limitations on the schools’ use of that

tuition, and, specifically, the schools may “proselytize”

participating students. /d. at 9-22. The Gatton respondents

would reduce the Court’s neutrality and private choice

tests—the result of a painstaking, decades-long doctrinal

advance from Everson v. Board of Education of Ewing, 330

U.S. 1 (1947), to Good News Club v. Milford Central School,

121 S. Ct. 2093 (2001)—to little more than “scraps of

language.” Gatton Brief at 33. They would then combine

the fact that there is a “preponderant majority” of religiously-

affiliated schools in Cleveland with their quarrels with the

scholarship tuition amounts and conclude that religious

teachings in religious schools are in some important sense

attributable to the State of Ohio. /d. at 46.

Both sets of respondents largely ignore the Ohio

Program’s studied religious neutrality and its scrupulous

protection of rights of conscience and the exercise of true,

private choice. Both groups ignore, in particular, the critical

distinction between school aid programs that move benefits

directly from government to religious schools and those that

permit benefits to flow to religious schools, but only

indirectly and as the result of intermediate, deliberate,

private, and truly independent choices of adult citizens.

Most importantly, the Program’s payment

mechanisms are (contrary to the Gatton insinuations) finely

tailored to guarantee parental choice. These payment

mechanisms prescribe that individualized scholarship

payments, sent by check to participating schools but made

out to Program parents, be individually endorsed over by

parents to the schools. Program schools with children

attending for only parts of a school year—for instance, in

cases where students transfer—have their state payments

“proportionally reduced.” Ohio Revised Code (“R.C.”)

3319.979(A)(2). These procedures ensure that schools

receive payment only for services rendered and that parents

are assisted in getting scholarship checks on time to their

intended destinations. They track time-tested expedients

used in analogous contexts—for example, the mailing of

government reimbursements for medical services directly to

service providers instead of indigent patients.

Aside from baseless insinuations, respondents have

no answer for our emphasis on the constitutional importance

of the private choices entrusted to (and made by) Cleveland

parents. As varying opinions from members of this Court

teach, private choices that embody citizens’ own

“independent discretion to put state money to religious use”

serve to “break the circuit” between government and religion.

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.

819, 886 (1995) (Souter, J., dissenting) (citing Zobrest v.

Catalina Foothills Sch. Dist., 509 U.S. 1, 8-13 (1993);

Witters, 474 U.S. at 487; and Mueller, 463 U.S. at 399-400).

In a similar vein, both sets of respondents ignore the

impact of the distinction between direct and indirect aid on

perceptions of state endorsement of religion. As noted in our

opening brief, State Brief at 21, “[iJn terms of public

perception, a government program of direct aid to religious

schools based on the number of students attending each

school differs meaningfully from the government distributing

aid directly to individual students who, in turn, decide to use

the aid at the same religious schools.” Mitchell v. Helms, 530

U.S. 193, 842-43 (2000) (O'Connor, J., joined by Breyer, J.

concurring); see also Rosenberger, 515 U.S. at 849

(O’Connor, J., concurring); Zobrest, 509 U.S. at 22-23

(Blackmun, J., joined by Stevens and Souter, JJ., dissenting);

Witters, 474 U.S. at 493 (O’Connor, J., concurring in part

and concurring in the judgment).

Most importantly, respondents have no answer for the

fact that reasonable observers would perceive nothing biased

or “sectarian” in Ohio’s program, which is rooted in the

legitimate, religiously-neutral identification of school

districts in need of improvement; a legitimate, religiously-

neutral process for approving Program schools based on

secular accreditation standards and requirements for

admissions and teaching, R.C. 3313.976(A)(3), (4), (6); and,

ultimately, a legitimate, religiously-neutral regime of parental

choice. The Program thus ensures that Ohio’s “governmental

involvement” with religion largely begins and “end[{s] with

the disbursement of funds,” Zobrest, 509 U.S. at 22

(Blackmun, J., dissenting), and hence that no reasonable

grounds exist for concluding “that government is actually

endorsing religion,” id. at 22-23.

Lacking any answer for our reliance on neutrality and

private choice, respondents employ variously throughout the

Gatton brief no fewer than five standards that, in their view,

define the limits of the Establishment Clause. They suggest

first that no funds whatsoever may flow to religious

institutions. Gatton Brief at 14-16 (citing Flast v. Cohen,

392 U.S. 83, 103-04 (1968)). Second, they inconsistently

suggest, no unrestricted aid may be given. See, e.g., Gatton

Brief at 7. Third, they argue, direct aid is per se

impermissible. See, e.g., id. at 17. Next, they claim that only

substantial aid is impermissible. See, e.g., id. at 39. And

finally, the Gatton respondents suggest aid to religious

institutions is prohibited unless it results from

“compensation” for service, such as payment under the G.I.

Bill. See id. at 36-37.

All but one of these standards, as applied by

respondents, may be readily dismissed. Specifically, the

vocational assistance grants upheld in Witters were every bit

as much government “funding” and every bit as “direct,”

“non-compensatory,” and “unrestricted” as any scholarship

Ohio has given to Cleveland students at religiously-affiliated

schools. Acceptance of any one of four of respondents’ tests

would a fortiori overrule Witters, while at the same time

impugning a host of established programs providing similarly

direct, non-compensatory, and unrestricted funding for social

services. See State Brief at 41.

This leaves respondents entirely dependent on their

remaining test—whether aid is “substantial.” But this last

test is undermined, not just by Mueller (where ninety-six

percent of benefits went to parents with children in religious

schools), but also by bedrock protections for freedom of

conscience. The Establishment Clause is offended where

government mandates support for religion in a

constitutionally relevant sense. Properly applied, this

fundamental principle poses no threat to the social services

programs that respondents would put in jeopardy. But that is

not because the Constitution overlooks de minimis intrusions

on rights, as a “substantial aid” test would suggest; rather, it

is because neutrality and private choice serve, in Justice

Souter’s phrase, to “break the circuit” between government

and religion.

A. True Private Choice

Respondents’ reliance on a_ substantial aid test

dependent on changeable statistics embodying point-in-time

summaries of parental choices is fundamentally incompatible

with this Court’s respect for rights of conscience, specifically

citizens’ rights to obtain social services in a religious or non-

religious setting of their own choosing. This Court long ago

refused “to adopt a rule grounding the constitutionality of a

facially neutral law on annual reports reciting the extent to

which various classes of private citizens claimed benefits

under the law.” Mueller, 463 U.S. at 401. Mueller thus

declined to “consider these contentions in detail,” id., and in

neither Agostini nor Zobrest were they determinative:

“Zobrest did not turn on the fact that James Zobrest had, at

the time of litigation, been the only child using a publicly

funded sign-language interpreter to attend a_ parochial

school.” Agostini v. Felton, 521 U.S. 203, 229 (1997); id.

(“Nor are we willing to conclude that the constitutionality of

an aid program depends on the number of sectarian school

students who happen to receive the otherwise neutral aid.”’);

see also Witters, 474 U.S. at 491 n.3 (Powell, J.. concurring)

(Validity of the program “does not depend on the fact that

petitioner appears to be the only handicapped student who

has sought to use his assistance to pursue religious training.”’)

(emphasis added). |

The Simmons-Harris respondents nonetheless place

especially heavy reliance on current statistics. They argue

that the Court has only upheld programs (like Witters) at one

pole of the religious-participation continuum, while striking

down programs (like Nyquist and Sloan) at the other end.

Simmons-Harris Brief at 24-25. Likewise, the Gatton

respondents also rely in part on the share of aid flowing to

religious institutions, Gatton Brief at 17, 36, albeit while

properly conceding that even Nyquist itself did not turn on

“statistics that might vary from year to year... ,” id. at 41.

The dispositive counter to either variation on the

statistics theme is that here, as in Mueller, public money

becomes available to religious schools “only as a result of

numerous private choices of individual parents of school-age

children.” Mueller, 463 U.S. at 399. No action by Ohio has

determined, much less preordained, the relative participation

rates of religious and non-religious schools. In fact, a recent

survey showed that 80.97 percent of the private schools in

Ohio were religiously-affiliated—a figure remarkably close

to the eighty-two percent Ohio Program figure that

respondents would blame on calculated maneuvering by the

Ohio General Assembly. Brief Amici Curiae of Florida, et

al., at 16-17.

Moreover, as the lower court recognized, yearly

snapshot percentages of participating religious schools and

percentages of students attending those schools fluctuate

considerably. Simmons-Harris v. Zelman, 234 F.3d 945, 949

(6" Cir. 2000) (State Petitioners’ Appendix (“State Pet.

App.”) at 5a). For instance, the number of students and

schools participating in the Milwaukee program quadrupled

shortly after the final rejection of the legal challenge to

Milwaukee’s program. See, e.g., Brief Amicus Curiae of

Wisconsin at 11. Given these fluctuating percentages, a

given year’s Program statistics—far from supplying grounds

i -

_—S oe

for finding unconstitutionality—will merely reflect the

aggregated results of true private choices as exercised in

context of larger (but by no means religiously-motivated)

programmatic events, such as the district court’s injunction,

the cloud of this ongoing litigation, and the implementation

of the State’s Community School Program.

Not deterred by evidence that Cleveland’s citizenry,

not Ohio’s government, is responsible for the percentage of

scholarship monies flowing to religious schools, respondents

next offer two additional explanations for why these statistics

matter. They suggest first that Ohio should have

anticipated—and presumably “remedied”—the figures they

find so objectionable, especially the fact that all of the public

school districts adjacent to Cleveland thus far have decided

against participation in the Program. Gatton Brief at 43;

Simmons-Harris Brief at 31 n.12. They then suggest that

Ohio—far from anticipating a certain participation profile—

actually created this profile by offering scholarships with

overly low tuition amounts. See Simmons-Harris Brief at 3,

30 n.11. Neither point has merit.

As noted above, the Program’s share of participating

religious schools closely tracks Cleveland’s pre-existing

religious and educational demographics. Any legislative or

judicial attempt to define some purportedly more ideal

religious-participation profile and then to conform

participation rates to that target profile could lead only to two

possible _résults, both unconstitutional: one-time

unconstitutional gerrymandering to achieve pre-deteimined

religious percentages; or repeated unconstitutional

gerrymandering responding to religious choices that change

year-to-year, and differ jurisdiction-to-jurisdiction. But as

this Court made plain in Board of Education of Kiryus Joel

Village School District v. Grumet, 512 U.S. 687 (1994), any

such “gerrymandering” would flatly violate the

Establishment Clause. See, e.g., id. at 729 (Kennedy, J.,

concun ing).

That respondents’ emphasis on percentages leads

inevitably to unconstitutional gerrymandering is all the more

evident in light of the widely varying numbers and religious

affiliations of private schools across, not only Ohio,' but the

country as a whole. See Brief Amici Curiae of Florida, et al.,

at 15-16. Over ninety percent of private schools in lowa,

Kansas, and Nebraska are religiously affiliated, for example,

but that number drops to less than fifty percent in Maine,

Massachusetts, New Hampshire, Rhode Island, Utah, and

Vermont. /d. at 15-17. These wide differences in the

prevalence of religious education (and, in respondents’ view,

eligibility for choice-based education) demonstrate that

respondents advocate an Establishment Clause at war with

itself—a Clause that simultaneously forbids and requires

state action aimed at diluting free citizens’ pre-existing

willingness to affiliate with religious institutions.

Nor do accusations of “proselytizing” add anything of

significance to respondents’ statistical showing. See Gatton

Brief at 43. The relevant decisionmakers here are parents,

not schoolchildren. See State Brief at 25-26. Because adult

! The Gatton respondents skew the data pertaining to

religious schools in Columbus. Specifically, they engage in

an undercount, limiting artificially their tallies to Columbus

schools enrolling students “in at least grades K-3,” Lodging

for Respondents Sue Gatton, et al., Affidavit of Donald J.

Mooney, Jr. at 9 5. This is misleading, as there is no such

requirement for participation in the Ohio Program. There are

five additional non-religious schools in Columbus, not

counted by respondents, that serve other grades in the K-8

range and would be eligible for participation if the program

were extended to Columbus under its current terms.

parents are in control, respondents entirely miss the mark

with their characterizations of Cleveland’s religious schools

as “permeated by religious instruction and indoctrination.”

Gatton Brief at 43. So long as Program participation remains

a matter of true, parental choice, the Program remains

constitutionally distinguishable from non-choice-based

programs in which religious observance is “in a fair and real

sense obligatory,” Lee v. Weisman, 505 U.S. 577, 586

(1992), or where people might be misled to think that “the

State, in a school setting, in effect required participation in a

religious exercise,” id. at 594 (emphasis added).

Contrary to respondents’ assertions, this Court has

never held that the impressionability of elementary school

students is relevant to Establishment Clause analysis where

State inducements or compulsion with regard to religious

activity are lacking and, hence, the State itself is not

advancing religion. Good News Club, 121 S. Ct. at 2105

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

Indeed, for Ohio to make program eligibility determinations

by picking and choosing among duly accredited schools on

the basis of whether they engage in someone’s definition of

“proselytization” would, far from upholding Establishment

Clause principles, serve only to unleash constitutional

concems as to excessive entanglement.

Similarly misguided are respondents’ suggestions,

Simmons-Harris Brief at 9, 31, that we err by stressing the

importance of incentives encouraging adjacent public schools

to enroll Cleveland students, even though no such schools

have taken advantage of this opportunity. In this regard,

Bowen v. Kendrick, 487 U.S. 589 (1988), in the somewhat

analogous setting of a challenge to the Adolescent Family

Life Act (“AFLA”), reasoned that the challenge was

“undercut by” the AFLA’s “facially neutral grant

requirements,” plus “the wide spectrum” of both religious

and nonreligious and public and private “organizations which

are capable of meeting” those requirements. /d. at 610

(emphasis added). Here, as in Bowen, the extension of

Prograin eligibility to all immediately neighboring public

schools “capable of meeting” applicable requirements

represents an important additional badge of constitutionality.

Specifically, the fact that these public schools are invited to

participate on the very same terms of independent

institutional choice as their private counterparts reconfirms

the Program’s commitment to strict evenhandedness, not

calibrated pressures seeking preordained results. Once the

cloud of this litigation dissipates, the State hopes and expects

that on2 or more adjacent districts will take another look at

the financial advantages of participating in the Program and

decide ‘0 avail itself of this opportunity.

But, even today, with the participation of adjacent

public schools lacking, parents’ choices are in no way limited

to selec ting from a menu of religiously-affiliated schools. As

Judge Ryan correctly explained below, Cleveland parents

have numerous educational options, only one of which is to

participate in the scholarship program. Simmons-Harris, 234

F.3d at 968 (State Pet. App. at 45a-46a) (Ryan, J., dissenting

in part). Parents can also choose to enroll their child in a

neighborhood public school, with or without tutorial

assistance, in a magnet school, or in a community (charter)

school.’ See id.

2 The Simmons-Harris respondents seek support from the

Brief Amici Curiae of Ohio School Boards Association, ef

al., to argue that magnet and community schools are

“illusory” alternatives to the Program. Simmons-Harris Brief

at 28 n.10. In making this argument, respondents and the

amici disregard the significant curricular differences between

a magnet school and a conventional public school, and then

base their derision of community schools largely on

Notwithstanding Judge Ryan’s forceful arguments in

this regard, respondents still have cited no evidence that any

non-religious Cleveland school has ever declined to

participate in the Program, let alone declined to participate

because of low tuition amounts. The Simmons-Harris

respondents misleadingly suggest that a recent Government

Accounting Office (“GAO”) study “concluded” that the

Program scholarship amount is tied to the tuition of religious

schools. Simmons-Harris Brief at 3. In fact, the cited GAO

statement is not a “conclusion” at all, but a mere recitation of

the Sixth Circuit panel majority’s baseless description of the

Program. The much more relevant GAO statement is the

finding that all private schools—teligious and non-religious

alike—subsidize students’ education on their own or with

funding from outside sources. See GAO Rep. No. 01-914

School Vouchers: Publicly Funded Programs in Cleveland

and Milwaukee at 25 (August 31, 2001).

This point bears emphasis precisely because every

other state-funded educational opportunity in Ohio is

provided entirely at taxpayer expense, without any need for

parental or other outside funding. Ohio’s overall scheme

thus provides strong incentives for parents to choose schools

outside the scholarship program. Specifically, regardless of

the school they choose, Program parents (unlike non-

Program parents) must pay at least ten percent of their child’s

tuition (up to $250) either in cash or, if they lack the

resources, in in-kind services. R.C. 3313.976(A)(8).

Participating parents, therefore, must not only choose to

apply for scholarships in the first instance, but also must

make continuing financial sacrifices in order to continue to

send their child to a Program school, whether religious or

not. In these circumstances, any religious observance, or

presumptions about the way parents should, in their view,

make choices for their children.

even “proselytization,” is undoubtedly “the product of free

and voluntary choice by the faithful.” Wallace v. Jaffree,

472 U.S. 38, 53 (1985).

B. Religiously-Neutral Criteria

The adult parents of Program children exercise their

private and independent choices within the context of a

religiously-neutral scheme. As we argued at the outset, see

State Brief at 29-31, two entirely neutral criteria determine

the availability of Program benefits: a federal court order

placing a school district under state control and family

income. Respondents deride these critical elements of facial

neutrality as “abstract,” Gatton Brief at 38, but nowhere do

they quarrel with the proposition that these stated criteria are

religiously-neutral.

Respondents instead focus on scholarship amounts

and the “educational purpose[s]” of participating schools,

contending that they transform Ohio’s solidly neutral regime

into one that somehow “loads the scales” in favor of

“religious uses,” id at 44. In fact, unrefuted evidence shows

that the Program’s high levels of parental satisfaction derive

largely from considerations related to foundational matters of

safety, educational quality, parental involvement and the like.

See State Brief at 10-11, 24.

Moreover, the fact that Ohio has exercised its

prerogetive to assign funding levels for Cleveland

scholarships (in the same budgetary manner that it assigns

funding for Cleveland public schools) cannot, as a matter of

law, undermine the Program’s neutrality. See San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44-55 (1973).

And tellingly, whereas the Gatton respondents argue that the

scholarship is a “preponderant grant[]” and thus overly

generous, Gatton Brief at 44, the Simmons-Harris

respondents contradictorily claim that the amount is too

stingy, Simmons-Harris Brief at 3, 30 n.11. As respondents’

divided house demonstrates, there is no one “correct”

scholarship amount, much less one “correct” amount that can

be precisely modulated through judicial interpretation of the

Establishment Clause.

In the final analysis, the religious percentages that

respondents attribute to the “structure and operation” of

Ohio’s program, id. at 10, 37, existed in precisely the same

measure in Mueller, where the Court upheld a Minnesota

program that allowed ninety-six percent of tax benefits to

flow to parents of children attending religious schools.

Mueller, 463 U.S. at 401. Mueller described the challenged

program as a means of “facilitating education of the highest

quality for all children”—private and public school students

alike. Jd. at 395 (emphasis added) (quoting Wolman v.

Walter, 433 U.S. 229, 262 (1977) (Powell, J., concurring in

part)). Mueller emphasized (and the briefing before this

Court establishes) that private school alternatives have real,

positive impacts on public education; in particular, “[p)rivate

schools may serve as a benchmark for public schools, in a

manner analogous to the “TVA yardstick’ for private power

companies.”’ Mueller, 463 U.S. at 395. For twenty years,

middle- and upper-income students, parents, and school

districts have taken advantage of Mueller to expand

educational options and, hence, educational performance.

Nothing in the Establishment Clause deprives lower-income

+ Studies of programs in Florida, Michigan, Arizona, and

Milwaukee have documented the positive spillover effects of

expanded private school availability on public school

performance. See, e.g., Brief Amici Curiae of Florida, et al.,

at 7-8 (Florida); Brief Amici Curiae of Rudolph W. Giuliani

and John O. Norquist at 20-22 (Milwaukee); Brief Amicus

Curiae of AERC at 12-14.

families and communities—families and communities with

much greater need—from enjoying these same opportunities

through scholarship initiatives like the Ohio Program.

IH. |§NY¥QU&ST DOES NOT GOVERN THIS CASE.

While respondents continue to lean heavily on

Nyquist, that decision addresses a much different sort of

program—one self-consciously directed to improving the

viability of parochial schools as opposed to the education of

individual students. More troubling still, respondents’ hard

reading of Nyquist is irreconcilable with larger, deeply-rooted

principles of Establishment Clause jurisprudence.

Our opening brief explains that both respondents and

the Sixth Circuit majority below have consistently

overlocked “the dispositive distinction that Nyquist’s

programm was intended to ‘provide assistance to private

schools,’ (Nyquist, 413 U.S.) at 783 (emphasis added),

whereas Ohio’s is intended to provide assistance to public-

and private-school students.” State Brief at 43. Respondents

offer no convincing responses to this crucial distinction.

Respondents do contend, as they did below, that our

emphasis on the distinction between aid to schools and aid to

students is inconsistent with Nyquist’s ruling that the

challenged New York program was enacted for “secular

purposes.” Gatton Brief at 22 n.4. But Nyquist itself

indicatss the opposite. It makes clear that “secular

purposes,” as Nyquist uses the term, refers to governmental

actors’ motivations, that is, to their reasons for adopting a

given educational program. Nyquist holds that, even when

acting pursuant to secular motivations, States may not pursue

secular goals through means specifically designed to bring

parochial schools (as institutions) up to governmental

concep.ions of a model that will appeal to religious parents.

a ee CC;

In other words, governments may not enact backward-

looking, parochial school improvement regimes, even when

prompted by ostensibly secular motivations “like preserving

educational diversity, promoting free exercise of religion,

and forestalling overcrowding of public schools.” State Brief

at 43 (quoting Nyquist, 413 U.S. at 764-65). Moreover,

whereas respondents say that Sloan v. Lemon buttresses their

reading of Nyquist (see, e.g., Simmons-Harris Brief at 20-21;

Gatton Brief at 41), in fact, Sloan turned on precisely these

same distinctions. Sloan thus characterizes the Pennsylvania

Statute it invalidated as, like Nyquist’s New York statute,

intended “at bottom” “to preserve and support religion-

oriented institutions.” Sloan, 413 U.S. at 832. There is

therefore no tension, much less contradiction, between the

Court’s ruling in either Sloan or Nyquist and Ohio’s forward-

looking, much needed aid for disadvantaged students.

The importance of this critical distinction, apparent

on the face of Nyquist, is further underscored by Mueller.

While at first glance Mueller’s tax deduction program

appeared indistinguishable from the tax benefit elements of

Nyquist’s invalidated program, this Court squarely upheld the

Mueller program based on two distinctions, both of which

apply here. Mueller reasoned, first, as we do here, that

Nyquist’s program sought to maintain an educational status

quo, that is, to keep existing private-school students in their

existing private-school arrangements. Mueller, 463 U.S. at

397, 398 (citing Widmar v. Vincent, 454 U.S. 253, 274

(1981)). Next, Mueller emphasized that Nyquist’s tax

benefits were unrelated to the amounts actually spent by

parents on tuition for their children’s education; the Nyquist

benefits were, therefore, in the nature of an “incentive” to

attend private school, as opposed to a vehicle for expanding

educational options. Mueller, 463 U.S. at 396 n.6 (citing

Nyquist, 413 U.S. at 790). The Court accordingly drew a

dispositive distinction between acceptable programs like

Ohio’s. in which benefits are closely tied to the money

needed to expand opportunities, and unacceptable

“incentives” for private, religious schooling.

In light of these critical distinctions—and the Court’s

express reservation of judgment on just this case in Nyquist’s

footnote 38—the Court need not decide whether Nyquist

remain; good law. Nevertheless, this Court’s recent

Establishment Clause precedents attest that Nyquist’s

analysis has not withstood the test of time. Indeed, while

respondents argue that the evolution of this Court’s

Establishment Clause jurisprudence has not weakened the

“doctrinal footings” of its decision in Nyquist thirty years

ago, Simmons-Harris Brief at 43, this Court has expressly

said otherwise: “{OJjur Establishment Clause jurisprudence

has changed significantly since we decided [School District

of the City of Grand Rapids v. Ball, 473 U.S. 373 (1985)] and

[Aguilar v. Felton, 473 U.S. 402 (1985)].” Agostini, 521

U.S. at 236. A decision to overturn Nyquist at this juncture

would accordingly rest on far more than “a present doctrinal

disposi'ion to come out differently from the Court of 1973.”

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833, 864 (1992).

CONCLUSION

For these reasons, as well as those set forth in our

openiny, brief, the decision of the Sixth Circuit Court of

Appeals should be reversed.