Amicus Curiae Brief — Zelman v. Simmons-Harris

Supreme Gum

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: > | NOV 9 200

Nos . 00-1751, 00-1777, and 00

In the Supreme Court of the fitter States— — |

SUSAN TAVE ZELMAN, SUPERINTENDENT OF PUBLIC

INSTRUCTION OF OHIO, ET AL., PETITIORERAT EP Y RD

v.

DORIS SIMMONS-HARRIS, ET AL. O\ 4g UUT

HANNA PERKINS SCHOOL, ET AL., PETITIONERSUC

v.

DORIS SIMMONS-HARRIS, ET AL.

SENEL TAYLOR, ET AL., PETITIONERS

v.

DORIS SIMMONS-HARRIS, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor Ge neral

GREGORY G. GARRE

Assistant to the Solicitor

General

ROBERT M. LOEB

LOWELL V. STURGILL JR.

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

2

a

QUESTION PRESENTED

Whether the Establishment Clause of the First Amend-

ment prevents a State from providing tuition aid as part of a

general assistance program to the parents of children who

attend failing public schools and authorizing the parents to

use that aid to enroll their children in a private school of

their own choosing, without regard to whether the school is

religiously affiliated.

TABLE OF CONTENTS

Page

Interest of the United States ...............ccccsssssessessseesesnsnssseseseres 1

I seecrcrrepnntcencsnnnestececcizensctestoregnsereentnomntemsemmmmmrsssensssnssengueaute 2

EE 7

Argument:

The Ohio Pilot Scholarship Program Does Not

Violate the Establishment Clause of the First

Ee 10

A. The pilot scholarship program was enacted

to promote a valid secular purpose ..............-ss-sses+0 11

B. The pilot scholarship program does not have

an impermissible effect of advancing religion ........... 12

C. The court of appeals’ “effects” analysis is

out of step with this Court’s precedents and

is not supported by the record in this case ................ 19

D. The court of appeals’ reliance on Nyquist was

misplaced sentaguemeesmnannemmneeneniete 26

GRIND ccccscnsccansmsmnesccsessscnssnenssesemmnecscsusssasssnessscsnesneneesneeneeseesenees 30

TABLE OF AUTHORITIES

Cases:

Agostini v. Felton, 521 U.S. 203 (1997) ........ccvvse0e passim

Board of Educ. v. Allen, 392 U.S. 236 (1968) ..........-c-ce00++ 11

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

ee 21

Bowen v. Kendrick, 487 U.S. 589 (1988) .............0000 19

Capitol Square Review & Advisory Bd. v. Pinette,

ee 18

Church of the Lukumi Babalu Aye, Inc. v. Hialeah,

GOB UB. GBD (1GBB) -2...cccacencecsessercees scvecsncsncecensecenscecocsrsoseese 18, 26

Committee for Public Educ. & Religious Liberty

v. Nyquist, 413 U.S. 756 (1973) - 6,9,26,27

(IIT)

IV

Cases—Continued: Page

Corporation of Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483

US. 327 (1987) 12

Everson v. Board of Educ. of the Township of

Ewing, 330 U.S. 1 (1947) 13

Good News Club v. Milford Cent. Sch., 121 S. Ct.

2093 (2001) 12, 13, 21

Jackson v. Benson, 578 N.W.2d 602 (Wis.), cert.

denied, 525 U.S. 997 (1998) 21

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

Meyer v. Nebraska, 262 U.S. 390 (1923) 22, 29

Mitchell v. Helms, 530 U.S. 793 (2000) passim

Mueller v. Allen, 463 U.S. 388 (1983) 6, 9,

11, 14, 20, 21, 28, 29

Reed v. Roberts, No. 1:73 CV 1300 (N.D. Ohio

Mar. 3, 1995) 2

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

515 U.S. 819 (1995) 12, 13, 24

Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999)..... 5

Widmar v. Vincent, 454 U.S. 263 (1981) 4

Wisconsin v. Yoder, 406 U.S. 205 (1972) 22

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

Blind, 474 U.S. 481 (1986) passim

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

(1993) 8, 14, 29

Constitution and statutes:

U.S. Const.:

Amend. | (Establishment Clause) passim

Amend. XIV ae 10

Act of June 27, 2001, Pub. L. No. 107-16, § 401(c)(2),

115 Stat. 58 2

Child Care and Development Block Grant Act of

1990, 42 U.S.C. 9858n(2) (1994 & Supp. V 1999) wou. «2

42 U.S.C. 604a(c) (Supp. V 1999) 2

42 U.S.C. 604a(e)(1) (Supp. V 1999) 2

Statutes—Continued: Page

Northwest Territory Ordinance of 1787, ch. 8,

OA EEE ; 29

Personal Responsibility and Work Opportunity Re-

conciljation Act of 1996, 42 U.S.C. 604a(a)(2)(B)(ii)

(Supp. V 1999) .......-re-soescsesssesssnsesnsesneesnnennnssnennesnnecsnsennennnennees 2

20 U.S.C. 5899(a)(2) 2

Ohio Rev. Code Ann. (Anderson 1999):

§§ 3313.974-3313.979 (1999 & Supp. 2000) .. 3

§ 3313.975(A) (1999 & Supp. 2000) 9,5, 25,27

§ 3313.975(B) (1999 & Supp. 2000) 3

§ 3313.975(C)(1) (1999 & Supp. 2000) ....... " 3

QE 4

§ 3313.976(A) ........-.-.-.-. 16

§ 3313.976(A)(3) neni 3

LN | | sanetts 3

§ SBIDDIG(ANG) ........2-2.ncncerececsvsvrnsnserereescensnsnsssnsensosesesssssnsess 3

§ BBIS.GTG( ANB) .......-.cecoecveresseeneessnsnsenssnnsnsnssnsnnsnenneneens 3, 14, 23

A 3

§ 3313.978(A) :

4

4

6

5

5

23

25

§ 3313.978(B)

§ 3313.978(C)(1) a eae ae

§ 3313.978(C\(3) Bh

§ 3313.979 3,4, 1

EEC

§ 3314.04 ME ee

ae TE

§ 3317.02(L) (1999 & Supp. 2000) ....c.eeescooossessnsnseeeennneeeee

Miscellaneous:

Cleveland City School District Performance Audit

(Mar. 1996) 2,3

Nat'l Ctr. for Educ. Statistics, U.S. Dep’t of Educ.,

Private School Universe Survey: 1999-2000 (2001) ........ 24

In the Supreme Court of the Gnited States

No. 00-1751

SUSAN TAVE ZELMAN, SUPERINTENDENT OF PUBLIC

INSTRUCTION OF OHIO, ET AL., PETITIONERS

v.

DORIS SIMMONS-HARRIS, ET AL.

No. 00-1777

HANNA PERKINS SCHOOL, ET AL., PETITIONERS

Vv.

DORIS SIMMONS-HARRIS, ET AL.

No. 00-1779

SENEL TAYLOR, ET AL., PETITIONERS

v.

DORIS SIMMONS-HARRIS, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The Ohio Pilot Project Scholarship Program provides

tuition aid and other assistance to the parents of children in

Cleveland, Ohio, where the inner-city public school system

has been found to be seriously deficient. The program

permits parents to use that aid to enroll their children in a

private school of their own choosing, without regard to

whether the school is religiously affiliated. The court of

(1)

2

appeals in this case held that the Ohio program violates the

Establishment Clause of the First Amendment.

Congress has enacted several programs that make funds

available to disadvantaged individuals to obtain services

from private entities of their own choosing, irrespective of

the religious affiliation, if any, of such entities. See, e.g.,

Child Care and Development Block Grant Act of 1990, 42

U.S.C. 9856n(2) (1994 & Supp. V 1999); Personal Responsibil-

ity and Work Opportunity Reconciliation Act of 1996,

42 U.S.C. 604a(a)(2)(B)ii), (c), and (e)(1) (Supp. V 1999). In

addition, Congress recently enacted a statute that extends

certain tax benefits when parents use funds from an educa-

tion individual retirement account to pay the expenses for

their children to attend “a public, private, or religious”

elementary or secondary school. Act of June 7, 2001, Pub. L.

No. 107-16, § 401(c)(2), 115 Stat. 58.

More generally, the United States has a strong interest in

ensuring that States and local governments are afforded the

flexibility that the Constitution reserves to them to provide

for the education of the Nation’s youth. “{E]ducation is

fundamental to the development of individual citizens and

the progress of the Nation.” 20 U.S.C. 5899(a)(2).

STATEMENT

1. More than 75,000 children, the vast majority of whom

are from low-income and minority families, are enrolled in

the Cleveland City School District. Cleveland City School

District Performance Audit 1-4 (Mar. 1996) (1996 Audit). In

1995, a federal! district court, in an ongoing proceeding in-

volving the desegregation of Cleveland public schools, placed

that school district under the control of the state superinten-

dent because of a crisis that gravely affected the district’s

educational performance. See Reed v. Rhodes, No. 1:73 CV

1300 (N.D. Ohio Mar. 3, 1995); Pet. App. 48a. The Cleveland

district failed to meet any of the 18 state standards for mini-

mum acceptable performance, and students in the district

3

performed at a dismal rate compared with students in other

Ohio public schools. See 1996 Audit 2-3. Sixty percent or

more of the students failed to graduate. 5 C.A. App. 1621.

In response to that educational crisis, Ohio enacted its

Pilot Project Scholarship Program. Ohio Rev. Code Ann.

(ORC) §§ 3313.974-3313.979 (Anderson 1999 & Supp. 2000).

The program provides two basic kinds of assistance: tuition

aid for students in kindergarten through eighth grade who

reside in a covered district to attend a participating public or

private school of their families’ choosing, ORC § 3313.975(B)

and (C)(1); and tutorial aid for “an equal number of students

* * * attending public school in any such district,” ORC

§ 3313.975(A). The program is limited to “school districts

that are or have ever been under federal court order requir-

ing supervision and operational management of the district

by the state superintendent.” Jbid. Only the Cleveland

school district has met that criterion. Pet. App. 4a.’

Any private school located within the boundaries of a

covered district, regardless of any religious affiliation it may

have, is eligible to participate in the program, as long as it

meets state educational standards, ORC § 3313.976(A)(3),

and agrees not to discriminate on the basis of race, religion,

or ethnic background, or to advocate or foster unlawful

behavior or teach hatred of any person or group on the basis

of race, ethnicity, national origin, or religion, ORC

§ 3313.976(A)(4) and (6). Any public school located in a

school district adjacent to the covered district is also eligible

to participate. ORC § 3313.976(C).

Tuition aid is disbursed through checks. When the aid is

used to enable a student to attend a private school, checks

are made payable to the student’s parents, who endorse the

checks over to their chosen school. ORC § 3313.979. In

awarding such aid, families with incomes below 200% of the

1 The “Pet. App.” references are to the appendix accompanying the

petition in No. 00-1751.

4d

poverty line are given priority. ORC § 3313.978(A); P+.

App. 4a. For those low-income families, the program pa, s

90% of the private school’s tuition up to $2250. ORC

§ 3313.978(A) and (C)(1). Participating schools may not

require a low-income family to pay more than the remaining

10% of the tuition. ORC § 3313.976(A)(8). For other fami-

lies, the program pays 75% of the tuition up to $1875, and

there is no tuition cap. ORC §§ 3313.976(A)(8), 3313.978(A).

Parents are responsible for choosing a participating

school. ORC § 3313.978(A). Schools that choose to partici-

pate are required to admit pilot project students in accor-

dance with criteria established by the State and the nondis-

crimination principle. ORC § 3313.976. In the 1999-2000

school year, 56 private schools participated in the program,

46 (or 82%) of which had a religious affiliation. None of the

public schools in districts adjacent to Cleveland elected to

participate. That same year, 3700 students participated in

the scholarship program, most of whom (96%) enrolled in a

religiously affiliated school. Pet. App. 5a.” There is no

evidence that any student who has applied to a nonreligious

private school in the program has been denied admission. /d.

at 5la.

The program also authorizes tutorial assistance for stu-

dents whose parents choose to keep them in public school.

ORC § 3313.978(B). Students from low-income families

receive 90% of the amount charged for such assistance (up to

$360), and other students receive 75% of that amount. ORC

§ 3313.978(B) and (C)(3). Tutorial aid grants are made

“payable to the parents of the student,” then endorsed to the

service provider. ORC § 3313.979. The number of tutorial

assistance grants offered to families who choose to keep

their children in a covered public school must equal the

° That percentage has fluctuated. At one point, “as many as 22% of

the students enrolled in the program attended nonreligious [private]

schools.” Pet. App. 5a.

St ee

5

number of tuition scholarships for families who choose to

send their children to a private school. ORC § 3313.975(A).

The pilot scholarship program is part of a broader under-

taking by the State to enhance the education available to

Ohio children, especially those in underperforming public

schools. That undertaking includes programs governing

community and magnet schools. Community schools are

established and funded pursuant to state law, but are run by

their own school boards and exist independent of public

school districts. ORC §§ 3314.01(B), 3314.04; J.A. 157a-164a.

During the 1999-2000 school year, there were 10 start-up

community schools in Cleveland, with more than 1900 stu-

dents. J.A. 16l1a. Magnet schools are public schools operated

by the school district itself that emphasize a particular

subject area, teaching method, or service to students. 4 C.A.

App. 1304. During the 1999-2000 school year, there were 23

magnet schools in Cleveland, with more than 13,000 students

in grades kindergarten through eighth. J.A. 15la-152a; Pet.

App. 117a n.15.

2. In 1996, respondents in No. 00-1751 challenged the

Ohio program in state court on federal and state grounds.

The Ohio Supreme Court held that the program does not

violate the Establishment Clause of the First Amendment.

Simmons-Harris v. Goff, 711 N.E.2d 203, 211 (1999). The

court emphasized that whatever link between government

and religion is created by the program “is indirect, depend-

ing only on the ‘genuinely independent and private choices’

of individual parents, who act for themselves and their chil-

dren, not for the government.” Jd. at 209 (quoting Witters v.

Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 487

(1986)). The court found, however, that the program vio-

lated the “one-subject” requirement of the Ohio constitution

because it was enacted as part of a bill addressing many sub-

jects. Id. at 214-215. The State cured that legislative defect,

while leaving the basic provisions discussed above intact.

6

3. In July 1999, respondents filed this action in federal

district court, seeking to enjoin the program as reenacted on

the ground that it violates the Establishment Clause. Peti-

tioners in No. 00-1777 intervened to defend the program, aiid

a second suit was filed against the program. The district

court consolidated the actions and issued a preliminary

injunction barring implementation of the program. Pet. App.

7a-8a, 128a-132a. After the court of appeals declined to stay

that order, this Court granted a stay pending appeal. 528

U.S. 983 (1999). In December 1999, the district court

granted summary judgment for respondents and perma-

nently enjoined implementation of the program (Pet. App.

61a-126a), finding that it was unconstitutional under Com-

mittee for Public Education & Religious Liberty v. Nyquist,

413 U.S. 756 (1973), discussed at pages 26-28, infra.

4. The Sixth Circuit affirmed. Pet. App. la-58a. The

court of appeals acknowledged that the pilot program is

“facial{ly] neutral[],” but held that it has an impermissible

“effect” of advancing religion. Pet. App. 25a. The court

pointed to the fact “that 82% of participating schools are

sectarian,” and was of the view that “the tuition restrictions

* * * limit the ability of [private] nonsectarian schools to

participate.” Jd. at 25a-26a. The court also attached signifi-

cance to the fact that no adjacent public school had chosen to

participate in the program. Jd. at 26a. The court declined to

consider the “other options available to Cleveland parents

such as the Community schools,” stating that those options

are “at best irrelevant” to this case. Jd. at 23a.

The court of appeals rejected the Stete’s reliance on deci-

sions such as Mitchell v. Helms, 530 U.S. 793 (2000);

Agostini v. Felton, 521 U.S. 203 (1997); Witters; and Mueller

v. Allen, 463 U.S. 388 (1983), in which is Court upheld

facially neutral school-aid programs that provided an indi-

rect benefit to religious schools only as a result of the private

choices of individual aid recipients. The court reasoned that,

unlike the programs in those cases, “the Ohio scholarship

7

program is designed in a manner calculated to attract

religious institutions and chooses the beneficiaries of aid by

non-neutral criteria.” Pet. App. 29a. Instead, the court

equated the Ohio program with the one invalidated in

Nyquist, and held that Nyquist “governs.” Id. at 24a-25a.

Judge Ryan dissented. Pet. App. 34a-58a. He concluded

that the “statute interpreted in Nyquist and the Ohio statute

before us are totally different in all of their essential re-

spects.” Id. at 34a; see id. at 36a-40a. In addition, he

reasoned that the “Establishment Clause decisions handed

down in the 27 years since Nyquist was decided” (id. at 35a)

underscore 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.” Jd. at 41a;

see id. at 40a-43a. Judge Ryan was of the view that the

record in this case demonstrates that the Ohio pilot program

affords participants such “a genuine choice,” id. at 45a; see

id. at 44a-46a, and he thus rejected the proposition that the

Ohio program has a forbidden effect.

SUMMARY OF ARGUMENT

In response to the catastrophic and well-documented

failure of Cleveland’s inner-city public schools, the State of

Ohio enacted a pilot scholarship program to provide children

in that community an opportunity to avoid the debilitating,

life-long consequences of a failed education. The court of

appeals erred in concluding that the Establishment Clause of

the First Amendment prohibits that program.

The Establishment Clause prevents a State from enacting

laws that have the purpose or primary effect of advancing

religion. No one disputes that the Ohio program was

enacted for the valid and, indeed, compelling secular purpose

of providing educational assistance to Ohio children who find

themselves in a demonstrably failing public school system.

The crux of this case, therefore, is whether the Ohio pro-

gram nonetheless has the forbidden effect of advancing

8

religion. In undertaking that inquiry, this Court looks pri-

marily to whether a law results in government indoctrina-

tion of religion, or defines aid recipients by reference to

religion. Agostini v. Felton, 521 U.S. 203 (1997). When

neither is true, a reasonable observer would be unlikely to

draw an inference that the State has endorsed religion by

enacting the law.

The determination whether government aid that may

benefit religious schools results in government indoctrina-

tion turns on “whether any religious indoctrination that

occurs in those schools could reasonably be attributed to

governmental action.” Mitchell v. Helms, 530 U.S. 793, 809

(2000) (plurality). When aid is provided on neutral terms

without regard to religion, it is unlikely that a reasonable

observer would conclude that the State is engaged in indoc-

trination. The Court has consistently upheld educational

assistance programs under which aid may benefit religious

schools as a result only of the genuinely independent and

private choices of aid recipients. That is true even if, as a

result of those choices, such aid directly assists the educa-

tional function of religious schools. E.g., Zobrest v. Catalina

Foothills Sch. Dist., 509 U.S. 1 (1993); Witters v. Washington

Dep't of Servs. for the Blind, 474 U.S. 481 (1986).

The Ohio pilot scholarship program fits comfortably with-

in that framework. Aid recipients are defined by whether

they reside in a failing public school district, not by reference

to religion. The only way in which aid may reach religious

schools is as a result of truly private choices by parents to

enroll their children in such a school. Aid recipients have the

full opportunity to expend the aid on a wholly secular

education, including by using tuition aid to enroll their

children in a participating private nonreligious school, keep-

ing their children in public school and seeking tutorial aid, or

forgoing participation in the scholarship program altogether

and, instead, sending their children to a magnet or com-

9

munity school. Parental choice, not government indoctrina-

tion, is therefore the hallmark of the Ohio program.

The fact that most parents who have participated in the

program have opted to use scholarship aid to send their

children to a private religious school does not mean that any

indoctrination that occurs in such a school may be attributed

to the State. This Court already has rejected that line of

argument in upholding private-choice programs. E£.g.,

Agostini; Mueller v. Allen, 463 U.S. 388 (1983). For several

reasons, it should do the same here. First, even though most

participating private schools are religiously oriented, in the

1999-2000 school year 10 of 56 were not. Second, the record

establishes that the decisions of individual parents to enroll

their children in a private religious school, rather than

another school, have been freely made. Third, when con-

sidered in the context of the full range of options available to

the parents of children in the Cleveland school district,

including magnet and community schools, the percentage of

parents who have elected to use scholarship aid to send their

child to a private religious school is small.

Nor is there any basis to conclude that the Ohio pilot

program discourages either private nonreligious or adjacent

public schools from participating. Nothing in the record

shows that any private nonreligious or adjacent public school

has declined to participate in the program because it cannot

afford to do so. The fact that more private religious than

nonreligious schools participate does not support the court of

appeals’ “financial disincentive” theory, because, as is true

nationwide, there are more private religious than nonrelig-

ious schools in Cleveland to begin with.

Committee for Public Education and Religious Liberty v.

Nyquist, 413 U.S. 756 (1973), does not govern this case.

First, whereas the program in Nyquist was intended to

support private schools statewide, the purpose of the Ohio

program is to assist children in a failing public school district,

and the program is carefully tailored to that purpose.

10

Second, unlike the program in Nyquist, the Ohio program

also provides assistance for parents who choose to keep their

children in public school. Moreover, this Court’s Establish-

ment Clause jurisprudence has undergone “significant{]”

changes since Nyquist, particularly in “the criteria used to

assess whether aid to religion has an impermissible effect.”

Agostini, 521 U.S. at 223, 237. Today, Nyquist must be read

in light of those changes.

ARGUMENT

THE OHIO PILOT SCHOLARSHIP PROGRAM DOES

NOT VIOLATE THE ESTABLISHMENT CLAUSE OF

THE FIRST AMENDMENT

The Establishment Clause of the First Amendment,

applied to the States through the Fourteenth Amendment,

provides that “Congress shall make no law respecting an

establishment of religion.” This Court has often been called

upon to decide whether a government program that may

result in an indirect benefit to religious schools is barred by

the Establishment Clause. In undertaking that inquiry, the

Court looks, first, to “whether the government acted with

the purpose of advancing or inhibiting religion,” and second,

to “whether the aid has the ‘effect’ of advancing or inhibiting

religion.” Agostini v. Felton, 521 U.S. 203, 221-223 (1997);

see Mitchell v. Helms, 530 U.S. 798, 807-808 (2000) (plural-

ity); see id. at 844-845 (O’Connor, J., joined by Breyer, J.,

concurring in the judgment). Applying that framework, the

Court has consistently upheld government aid to education

that is provided to individuals on neutral terms without

regard to religion, and that may reach a religious school only

as a result of the truly private choices of individual parents

or students. As explained below, the Ohio pilot scholarship

program comports with those principles, and is not barred

by the Establishment Clause.

1]

A. The Pilot Scholarship Program Was Enacted To

Promote A Valid Secular Purpose

No one disputes that the scholarship program at issue in

this case has a valid secular purpose. The program was

enacted in response to a severe educational crisis in Cleve-

land’s inner-city schools, in an effort to rescue Ohio school

children in communities where educational assistance is most

sorely needed. See pp. 2-3, supra; Pet. App. 44a (Ryan, J.,

dissenting) (“The sole purpose of the voucher program is to

save Cleveland’s mostly poor, mostly minority, public school

children from the devastating consequences of * * * the

failed Cleveland Schools.”).

This Court has recognized that “[a]n educated populace is

essential to the political and economic health of any com-

munity, and [that] a State’s efforts to assist parents in meet-

ing the rising cost of educational expenses plainly serves this

secular purpose of ensuring that the State’s citizenry is well

educated.” Mueller v. Allen, 463 U.S. 388, 395 (1983). The

purpose of the Ohio pilot scholarship program is even more

focused and, indeed, more compelling. The program is

limited to public school districts that are or have been sub-

ject to a federal court order placing them under direct state

supervision. ORC § 3313.975(A). The Cleveland school

district is the only district that has qualified for the program.

Pet. App. 4a; J.A. 69a. The need to assist children enrolled in

that district has not abated. See 2 C.A. App. 475 (1999

report); 5 C.A. App. 1621 (1999 graduation rate below 33%).

Nor is it surprising, or in any way improper, that the

State would choose to give the parents of students enrolled

in a demonstrably failed school district the option of using

aid to send their children to a private school, including a

religiously affiliated school, if they so desire. Private schools

have long played an important role in the educational life of

American communities. See Board of Educ. v. Allen, 392

12

U.S. 236, 247-248 (1968). Where a public school system has

failed, it is common sense for a State, in addition to trying to

revive that system, to look to private schools as a means of

creating educational opportunity for children in the commu-

nity. And in addressing such a critical problem, it is appro-

priate for a State to be inclusive, and make all schools

eligible to participate in some way in the overall effort, irre-

spective of their particular educational philosophy or mis-

sion. Cf. Good News Club v. Milford Central School, 121 8S.

Ct. 2093, 2100 (2001); Rosenberger v. Rectors & Visitors of

Univ. of Va., 515 U.S. 819, 839 (1995).

B. The Pilot Scholarship Program Does Not Have An

Impermissible Effect Of Advancing Religion

The Ohio pilot scholarship program also satisfies the

“effects” prong of this Court’s Establishment Clause

jurisprudence.

1. “For a law to have forbidden ‘effects’ [under the

Establishment Clause], it must be fair to say that the

government itself has advanced religion through its own

activities and influence.” Corporation of Presiding Bishop of

the Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 337 (1987). In Agostini, 521 U.S. at 234, this

Court explained that it looks to “three primary criteria” in

determining whether a school-aid program has such effects:

whether the aid “result([s] in governmental indoctrination”;

whether the aid “define[s] its recipients by reference to re-

ligion”; and whether the aid creates an “excessive entangle-

ment” between government and religion. See Mitchell, 530

U.S. at 808 (plurality); id. at 845 (O’Connor, J.).

a. “(Wjhether governmental aid to religious schools

results in governmental indoctrination is ultimately a

question whether any religious indoctrination that occurs in

those schools could reasonably be attributed to government

action.” Mitchell, 530 U.S. at 809 (plurality); see id. at 842

(O’Connor, J.); Agostini, 521 U.S. at 226. “In distinguishing

Ea ———

13

between indoctrination that is attributable to the State and

indoctrination that is not, [the Court has] consistently turned

to the principle of neutrality, upholding aid that is offered to

a broad range of groups or persons without regard to their

religion.” Mitchell, 530 U.S. at 809 (plurality); see id. at 838

(O’Connor, J.) (“{[WJe have emphasized a program’s neutral-

ity repeatedly in our decisions approving various forms of

school aid.”); Good News Club, 121 S. Ct. at 2104 (“We have

held that ‘a significant factor in upholding governmental

programs in the face of Establishment Clause attack is their

neutrality toward religion.’”) (citing cases).

As a general rule, indoctrination cannot reasonably be

attributed to the government itself when “any governmental

aid that goes to a religious institution does so ‘only as a

resu!t of the genuinely independent and private choices of

individuals.’” Mitchell, 530 U.S. at 810 (plurality) (quoting

Agostini, 521 U.S. at 226); see id. at 842-843 (O’Connor, J.).

That is true even if, as a result of those choices, the aid in

turn “directly assists the educational function of religious

schools.” Agostini, 521 U.S. at 225-226; Witters v. Washing-

ton Dep't of Servs. for the Blind, 474 U.S. 481, 487 (1986). In

a related vein, when aid may reach a religious school only in

. that fashion, it is unlikely that a reasonable observer of the

program would believe that “the State itself is endorsing a

religious practice or belief.” Mitchell, 530 U.S. at 843

(O’Connor, J.); see id. at 835 (plurality); Rosenberger, 515

U.S. at 848 (O’Connor, J., concurring); Witters, 474 U.S. at

493 (O’Connor, J., concurring in part and concurring in the

judgment).

The Court recognized the significance of the element of

private choice in evaluating the school-aid program chal-

lenged in its first modern Establishment Clause case, Ever-

son v. Board of Educ. of the Township of Ewing, 330 U.S. 1,

18 (1947), where the Court upheld a state program permit-

ting localities to reimburse parents for expenses incurred in

transporting their children to school, even if they chose to

14

send them to a religious school. And since Everson, that

principle has become deeply ingrained in this Court’s

Establishment Clause precedents. In Zobrest v. Catalina

Foothills School District, 509 U.S. 1 (1993), for example, the

Court held that government funds could be used to pay for

the services of a sign-language interpreter to assist a deaf

child enrolled in a religious school, where the funds were

made available to a broad class of individuals on neutral

terms, without regard to whether the school was public or

private, religious or nonreligious. As the Court explained,

“(bly according parents freedom to select a school of their

choice, the statute ensures that a government-paid inter-

preter will be present in a sectarian school only as a result of

the private decision of individual parents.” /d. at 10.

Similarly, in Witters, the Court upheld a state program

that provided funds to disabled individuals to obtain voca-

tional assistance, even where the funds were in turn used by

the recipient to enroll in a religious school. As the Court

explained, “[aJny aid provided under [the] program that

ultimately flows to religious institutions does so only as a

result of the genuinely independent and private choices of

aid recipients.” 474 U.S. at 487. And, in Mueller, the Court

upheld a state law permitting parents to deduct educational

expenses from their state income tax, without regard to

whether the parents sent their children to a public or pri-

vate, or religious or nonreligious, school. The Court

explained that “(wJhere, as here, aid to parochial schools is

available only as a result of decisions of individual parents no

‘imprimatur of state approval’ can be deemed to have been

conferred on any particular religion, or on religion gener-

ally.” 463 U.S. at 399 (quoting Widmar v. Vincent, 454 U.S.

263, 274 (1981)). See also Agostini, 521 U.S. at 228-229 (Title

I program, under which federal funds are distributed to

_ public agencies that provide services directly to low-income

students “no matter where they choose to attend school,” is

analogous to program upheld in Zobrest).

—— —_—_—— TT

15

b. The second criterion identified in Agostini for identify-

ing impermissible effects—whether the aid program defines

its recipients by reference to religion—is “closely related to

the first.” Mitchell, 580 U.S. at 813 (plurality). “(TJhe man-

ner in which a government-aid program identifies its recipi-

ents is important because ‘the criteria might themselves

have the effect of advancing religion by creating a financial

incentive to undertake religious indoctrination.’” Jd. at 845

(O’Connor, J.) (quoting Agostini, 521 U.S. at 231). The Court

has recognized, however, that no such “incentive” is present

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

that neither favor nor disfavor religion, and is made avail-

able to both religious and secular beneficiaries on a non-

discriminatory basis.” Agostini, 521 U.S. at 231. Accord-

ingly, the second Agostini criterion is likely to be met, the

Court has explained, whenever aid is provided “to all

eligible children regardless of where they attended school.”

Ibid. (citing, e.g., Zobrest, Witters, and Mueller).

2. a. The Ohio’pilot scholarship program fits comfortably

within the Agostini framework. To take the second con-

sideration first, the Ohio program does not “define its recipi-

ents by reference to religion.” Agostini, 521 U.S. at 234.

Both tuition aid and tutorial assistance are made available to

participating families on neutral terms that in no way refer

to religion. The family of any student in a pilot district

3 The third Agostini criterion—“excessive entanglement” between

government and religion—typically exists only when “pervasive monitor-

ing by public authorities” would be necessary to ensure that a program

does not involve government inculcation of religion. 521 U.S. at 233. As is

true with respect to the other Agostini criteria, it is unlikely that there

would be any occasion for such monitoring or that such entanglement

would be present when aid may flow to religious entities only as the result

of the intervening and truly private decisions of aid recipients. In this

case, respondents have not seriously challenged the Ohio program under

the third Agostini criterion, and the court of appeals did not discuss (or

rely on) that factor in invalidating the program.

16

through eighth grade is eligible to participate. ORC

§ 3313.976(A). The only preference under the program is for

low-income families. /bid. All private schools within a pilot

district, as well as all public schools in adjacent districts, are

eligible to participate as long as they agree to abide by the

non-discrimination principle and meet .state education

standards. ORC § 3313.976(A). “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.” Pet. App. 47a (Ryan, J., dissenting).

Nor does the Ohio pilot program “result in governmental

indoctrination.” Agostini, 521 U.S. at 234. “Each scholar-

ship or grant to be used for payments to a registered private

school or to an approved tutorial assistance provider is pay-

able to the parents of the student entitled to the scholarship

or grant.” ORC § 3313.979 (emphasis added); see Witters,

474 U.S. at 487. Those funds may reach a private religious

school only as a result of the private and wholly independent

decision of parents to enroll their children in such a school,

rather than to avail themselves of one of the other options

available to them under Ohio law.

At the same time, “aid recipients have full opportunity to

expend [the] aid on wholly secular education.” Witters, 474

U.S. at 488. A number of nonreligious private schools par-

ticipate in the program, and “there is no evidence that any of

[those schools] have ever rejected a single voucher applicant

for any reason.” Pet. App. 51a (Ryan, J., dissenting). Nor is

there any “evidence in the reeord that any Cleveland public

school parent has ever declined to enroll his or her child in a

nonreligious, private school in Cleveland because there was a

differential cost that was prohibitive.” Jd. at 5la-52a.

The parents of children in the Cleveland school district

have other options as well. They may leave their children in

public school and seek the tutorial aid that the pilot scholar-

i

17

ship program makes available. Or they may forgo assistance

under the scholarship program and enroll their children in a

magnet or community school, free of charge. See Pet. App.

45a-46a (Ryan, J., dissenting); 4 C.A. App. 1303-1304. The

community school system in particular promotes a range of

alternatives to the schools operated by the Cleveland school

district itself, in addition to local private schools. Indeed, in

instituting the community school program, the State recog-

nized that such schools would “provid{e] parents a choice of

academic environments for their children and provid[e] the

education community with the opportunity to establish lim-

ited experimental programs in a deregulated setting.” J.A.

42a.*

b. The pilot scholarship program thus shares the key

features of the educational assistance programs in Zobrest

and Witters. Ohio has singled out a narrow and particularly

needy class of citizens for assistance—mostly low-income

children in grades kindergarten through eighth who find

themselves in a demonstrably unsuccessful educational envi-

ronment. Only a small fraction (less than 4.5%) of students

in the State qualify for that aid, and because there are only

about 3700 spaces in the scholarship program, an even

smaller percentage (less than 0.3%) of students statewide

actually benefit from it. The aid is made available on neutral

terms to the parents of students participating in the pro-

gram. And “{aJny aid provided under [the] program that

ultimately flows to religious institutions does so only as a

result of the genuinely independent and private choices of

aid recipients.” Witters, 474 U.S. at 487.

The private-choice program challenged in this case is on

even more solid footing than the one upheld in Mitchell.

4 The parents also would be free to use the scholarship aid to send

their children to an adjacent public school participating in the program,

although no adjacent public school district thus far has elected to par-

18

Mitchell involved a “per-capita-school-aid program,” as dis-

tinguished from the “true private-choice programs consid-

ered in Witters and Zobrest.” 530 U.S. at 842-843 (O’Connor,

J.). Under the program in Mitchell, funds were granted to

local agencies, which then provided educational assistance

directly to public and private schools, including religious

schools. The amount of the assistance provided to each

school was determined by its enrollment. As the Mitchell

plurality observed, under such a program, “[i]t is the stu-

dents and their parents—not the government—who, through

their choice of school, determine who receives [the] funds.”

Id. at 830. In the view of the concurring Justices in Mitchell,

such “a government program of direct aid to religious

schools based on the number of students attending each

school differs meaningfully from the government distribut-

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

use the aid at the same religious schools.” Jd. at 842-843.

Those Justices nonetheless concluded that the per-capita-aid

prograin was constitutional. This case, by contrast, involves

th 1e private-choice” type of program. Ibid.

or similar reasons, the pilot scholarship program

“cannot reasonably be viewed as an endorsement of relig-

ion.” Agostini, 521 U.S. at 235; see Witters, 474 U.S. at 489.

“(When government aid supports a school’s religious mis-

Sicn only because of independent decisions made by numer-

ous individuals to guide their secular aid to that school, ‘(n]jo

reasonable observer is likely to draw from the facts . . . an

inference that the State itself is endorsing a religious

practice or belief.’” Mitchell, 530 U.S. at 843 (O’Connor, J.).

That is particularly true with respect to the assistance

program challenged in this case. It is undisputed that the

program was enacted to throw an educational lifeline to the

mostly poor students in Cleveland’s public school district

after the district had demonstrably failed parents and

students in its basic educational mission. Cf. Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995)

— ee SE

19

(O’Connor, J., joined by Souter and Breyer, JJ., concurring in

part and concurring in the judgment) (A reasonable observer

must be deemed to be aware of the “history and context”

underlying the program.). The background and targeted

focus of the Ohio program thus furnish an extra measure of

protection against any inference that the State itself is

endorsing religion.

So does the program’s experimental nature. In Bowen v.

Kendrick, 487 U.S. 589, 603-604 (1988), for example, this

Court concluded that Congress’s decision to amend the Ado-

lescent Family Life Act to allow “religious organizations,”

along with other groups, to provide publicly funded counsel-

ing on problems associated with teenage sexuality promoted

“the entirely appropriate im of increasing broad-based

community involvement” in addressing those problems, as

well as ensuring “increased participation of parents in

education and support services, * * * increas[ing] the

flexibility of the programs, and * * * spark[ing] the

development of new, innovative services.” Similarly here,

Ohio and the Cleveland school district have taken a number

of steps, including the creation of community and magnet

schools and the provision of tutorial assistance tc public

school children, to address the plight of Cleveland’s school

children. Any objective observer familiar with the situation

would reasonably view the pilot scholarship program as one

part of a broader undertaking to offer those children a full

range of educational opportunities through the combined

efforts and innovations of public schools, private schools,

community groups, and parents.

C. The Court Of Appeals’ “Effects” Analysis Is Out Of

Step With This Court’s Precedents And Is Not

Supported By The Record In This Case

The court of appeals concluded that the Ohio pilot scholar-

ship program has an impermissible effect of advancing

religion. The court pointed to the percentage of private

20

religious schools participating in the program, the suppos-

edly “lower tuition needs” of religious schools, and the fact

that (at least so far) no neighboring public school district has

chosen to participate in the program. Pet. App. 26a. That

reasoning is both legally and factually unsound.

1. This Court has repeatedly held that a general assis-

tance, private-choice program does not have an impermissi-

ble effect of advancing religion simply because, in practice,

more—even significantly more—beneficiaries of the pro-

gram choose to obtain services from a religious rather than

nonreligious entity. For example, in Mueller, this Court

rejected the argument that a state law providing an income

tax deduction for educational expenses had an impermissible

effect because “the bulk”—more than 90%—“of deductions

taken [under the program] will be claimed by parents of

children in sectarian schools.” 463 U.S. at 401. The Court

explained that it “would be loath 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.” Ibid.

Similarly, in Agostini, the Court upheld the use of federal

funds to send public school teachers into private schools to

provide remedial education to disadvantaged children, even

though more than 90% of the private schools within the

° That reluctance is called for here. The experience in Cleveland and

other localities that have experimented with expanding the educational

options available to disadvantaged children in faltering public schools

indicates that the number of individuals and types of schools participating

in such programs can fluctuate from year to year based on the dynamics of

the particular range of options and other factors, including litigation. See

J.A. 227a, 234a-236a; note 2, supra. Milwaukee, for example, “has seen

dynamic growth in the number of nonsectarian schools participating” in its

school-choice program, which, like the Ohio program at issue in this case,

was established by Wisconsin to create opportunities for the mostly low-

income and minority families with children in that community’s failing

public school system. J.A. 236a. .

21

jurisdiction of the school board at issue were religious. 521

U.S. at 210. In so ruling, the Court emphasized that it was

not “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.” Jd. at 229.

See also Good News Club, 121 S. Ct. at 2107 n.9; Mitchell,

530 U.S. at 812 n.6 (plurality) (Agostini “held that the pro-

portion of aid benefitting students at religious schools pur-

suant to a neutral program involving private choices was

irrelevant to the [Establishment Clause] inquiry.”); Witters,

474 U.S. at 491-492 & n.3 (Powell, J., joined by Burger, C.J.,

and Rehnquist, J., concurring); Jackson v. Benson, 578

N.W.2d 602, 619 n.17 (Wis.), cert. denied, 525 U.S. 997 (1998). _

To be sure, a State may not contrive a program to benefit

one religion over another, or religion over nonreligion.

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

512 U.S. 687 (1994). Nor may a State utilize facially neutral

terms to advance an impermissible purpose of singling out

religion for unfavorable treatment. Church of the Lukumi

Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). But when,

as here, the government establishes a neutral program for a

concededly valid purpose, and when any aid provided by that

program may benefit religion only as a result of the private

choices of individual aid recipients, then the manner in

which individuals exercise that choice does not itself furnish

a basis for invalidating the program. See Agostini, 521 U.S.

at 229: Mueller, 463 U.S. at 401. Several facets of the pro-

gram in this case bolster that conclusion here.

First, as discussed above, parents participating in the

pilot scholarship program have the option of using aid to

send their children to a private nonreligious school. Al-

though the number has fluctuated, in the 1999-2000 school

year 10 private nonreligious schools (representing virtually

all of such schools in the Cleveland area) participated in the

pilot program. Pet. App. 5a.

22

Second, there is no evidence establishing that parents who

chose to enroll their children in a participating private relig-

ious school did so because of any financial incentive created

by the program, or any feeling that they lacked a secular

alternative. To the contrary, the numerous affidavits in the

record establish that parents who opted to use scholarship

funds to send their children to a private religious school did

so primarily because of the school’s educational record,

safety, and diversity, or because of the feeling of trust that

they had after meeting with teachers or administrators. See,

e.g., 90-1777 Pet. App. 80a, 88a, 90a, 97a, 99a, 127a, 141a,

154a, 173a, 175a, 183a, 185a; 3 C.A. App. 657; see also J.A.

69a-7la, 100a-10la. That evidence underscores that the indi-

vidual choices made under the program were thoughtfully

and freely made by parents fulfilling their “high duty” to

provide for the education of their children. Meyer v.

Nebraska, 262 U.S. 390, 399 (1923); see Wisconsin v. Yoder,

406 U.S. 205, 232-233 (1972).

Third, the court of appeals’ focus on the relative percent-

ages of religious and nonreligious private schools participat-

ing in the program unduly discounts the entire range of

options available to parents. As discussed above, parents

have several options in addition to the pilot scholarship

program. In fact, the vast majority of parents eligible for

the scholarship program who have transferred their children

out of one of Cleveland’s regular public schools have enrolled

them in a magnet or community school. See J.A. 207a, 217a;

see also J.A. 168a-169a; 5 C.A. App. 1635-1645, 1657-1670

(affidavits of parents indicating that they consider all op-

tions, including magnet and community schools, in deciding

whether to participate in pilot scholarship program).

The court of appeals dismissed those options as “at best

irrelevant” because they were not enacted as part of the

pilot scholarship program itself. Pet. App. 23a. That

analysis is fundamentally mistaken. The community schools,

for example, broaden the universe of nonreligious schools

ee

—

23

that are available to Cleveland school children outside the

Cleveland public school system. Some private nonreligious

schools within the Cleveland district—which could have

participated in the pilot scholarship program—have become

community schools. J.A. 145a-146a, 217a-218a. In addition,

Ohio has established a single “office of school options” to

“provide services that facilitate the management of the

community schools and the pilot scholarship program,” ORC

§ 3314.11, underscoring the interrelationship between such

choice programs. In determining whether the pilot scholar-

ship program has an impermissible effect of advancing

religion, there is no reason to ignore the full range of choices

provided by the State to the program’s beneficiaries, only

one of which is for parents to accept scholarship aid and

enroll their children in a private religious school.

2. The court of appeals’ belief that the pilot program

discourages participation of private nonreligious schools also

does not withstand scrutiny. Citing only a law review

article, the court broadly asserted that “religious schools

often have lower overhead costs, supplemental income from

private donations, and consequently lower tuition needs.”

Pet. App. 26a. From that premise, the court reasoned that

the program’s tuition cap (ORC § 3313.976(A)(8)) creates a

financial disincentive for private nonreligious schools to

accept pilot program students. Pet. App. 26a. That conclu-

sion simply has no support in the record. As Judge Ryan

explained, “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.” Jd. at 51a. 7

The determination whether a challenged government

program violates the Establishment Clause often “depends

on the hard task of judging—sifting through the details and

determining whether the challenged program offends the

24

Establishment Clause. Such judgment requires courts to

draw lines, sometimes quite fine, based on the particular

facts of each case.” Mitchell, 530 U.S. at 844 (O'Connor, J.)

(quoting Rosenberger, 515 U.S. at 847 (O’Connor, J., con-

curring)). In undertaking that sensitive task, however, this

Court has never suggested that a federal court may invali-

date a state law under the First Amendment based on

asserted “facts,” with no actual foundation in the record

before it. The court of appeals erred in doing so here.

In any event, the court of appeals’ “financial disincentive”

theory is contradicted by the fact that, as the record estab-

lishes, several nonreligious private schools in the Cleveland

area do participate in the pilot program. Pet. App. 5a. The

fact that more private religious than nonreligious schools

participate in the program does not support the court of

appeals’ speculation that the program discourages the par-

ticipation of nonreligious schools. As is true across America,

most private schools in the Cleveland area are religiously

affiliated to begin with. See Nat’] Ctr. for Educ. Statistics,

U.S. Dep’t of Educ., Private School Universe Survey: 1999-

2000, at 2 (2001) (about 78% of private schools nationwide are

religiously affiliated).

The court of appeals’ speculation that the tuition cap

might create a disincentive for schools to accept students

also ignores its unquestionably valid purposes. The cap

makes it more likely that low-income families will be able to

send their children to a participating private school, whether

it is religious or nonreligious. It also encourages private

schools that ordinarily charge a higher tuition (and have a

student base that can afford such tuition) to do their part to

help educate Cleveland’s neediest students. The cap applies

only to low-income scholarship students. Private schools,

both religious and nonreligious, remain free to charge what-

ever tuition they choose with respect to all their other

students—including any pilot scholarship students who are

not from low-income families.

25

3. The court of appeals’ reliance (Pet. App. 26a) on the

fact that no adjacent public school has elected to participate

in the pilot program is similarly flawed. “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.” /d. at 50a (Ryan, J., dissenting);

see id. at 5la. In fact, the program creates the opposite

incentive. As the State has explained, neighboring public

schools that elect to participate in the pilot program and

accept scholarship students “would receive an additional

$2,250 in state funding, because scholarship students would

be included in each suburban school district's total number of

students * * * for purposes of calculating the amount of

state funds the district receives.” 00-1751 Pet. 15-16 n.2; see

ORC § 3317.02(/). Even with that financial incentive, how-

ever, there are several reasons why suburban public school

districts might decline to participate in the pilot scholarship

program, including overcrowding in their own schools.

Moreover, even though no adjacent public school has par-

ticipated in the pilot scholarship program to date, parents

eligible to receive scholarships have other public school

options available to them. They may keep their children in

their current public school and apply for tutorial aid. As dis-

cussed above, the program requires that tutorial assistance

grants be made available for families who choose to keep

their children enrolled in public school in equal number

to the tuition scholarships for families who choose to send

their children to a participating private school. ORC

§ 3313.975(A); J.A. 166a. In addition, parents may transfer

their children to a public magnet or community school, as

thousands of Cleveland parents have done. See p. 22, supra.°

® The court of appeals concluded that the “Ohio scholarship program is

designed in a manner calculated to attract religious institutions.” Pet.

App. 29a (emphasis added). As discussed above, that conclusion is not

D. The Court Of Appeals’ Reliance On Nyquist Was

Misplaced

The court of appeals erred in concluding that this case is

“govern(ed]” by this Court’s decision in Nyquist. Pet. App.

24a. In fact, the significant differences between the program

challenged in this case and the one in Nyquist only under-

score that Ohio has not engaged in an establishment of

religion by enacting its pilot scholarship program.

1. Nyquist involved a challenge to a New York program

that provided direct grants to private schools across the

State for maintenance and repair costs, as well as tuition

reimbursement and state income tax deductions for parents

of children in those schools, the “great majority” of which

were religious. 413 U.S. at 783. Findings established that

the program was intended to provide financial support to the

State’s private schools, and thereby prevent a “massive

increase in public school enrollment and costs.” Jd. at 765.

This Court held that the program had the impermissible

“effect” of advancing religion. Jd. at 780. The Court rejected

the argument that the tuition-reimbursement and tax-deduc-

tion provisions were valid because they provided benefits to

parents, who chose where to enroll their children, finding

that those provisions “fare[d] no better under the ‘effect’

test” than the program’s direct grants. Jd. at 785.

The Ohio program in this case differs in important

respects from the New York program in Nyquist. First, the

overriding purpose of the program in Nyquist was to

supported by the record. Moreover, it conflicts with the undisputed fact

that the program has a valid secular purpose. In that regard, this case is

nothing like Lukum: Babalu Aye—which the court of appeals cited (id. at

25a)—where the record “compel[led]” the conclusion that the locality had

acted with the improper object of singling out religion for unfavorable

treatment. 508 U.S. at 534; see id. at 534-538. To the extent that the court

of appeals’ “effects” analysis is rooted in an inclination on its part to be-

lieve that the State acted with an improper purpose, the court's analysis

fails for that reason alone.

ow

27

support private schools in New York en masse, in response

to their deteriorating condition and the resulting pressures

on public schools. 413 U.S. at 764-765, 773, 783. Indeed, the

program included direct aid to those schools, id. at 780-782 &

n.38, ard the Court concluded that the tuition-assistance

grants were “offered as an incentive for parents to send

their children to sectarian schools,” id. at 786. The purpose

of the Ohio program, in contrast, is to assist individual

students in failing public school districts. Currently fewer

than 60 private schools and only a tiny fraction of school

children in Ohio participate in the program. The program in

this case is focused on the needs of children where schools

are failing, not on supporting private schools, as in Nyquist.

Second, the overall Ohio program in this case, unlike the

New York program in Nyquist, also provides options to

parents who choose to keep their children in public schools.

Ohio guarantees funding for an equal number of grants to

such parents to enable their children to receive tutoring,

ORC § 3313.975(A), encourages participation of adjacent

public school districts in the scholarship program, and funds

magnet and community schools that offer innovative alterna-

tives to the regular schools operated by the Cleveland public

school system. See pp. 3-5, supra.

In Nyquist, this Court expressly reserved judgment on

the constitutionality of a program “involving some form of

public assistance (e.g., scholarships) made available generally

without regard to the sectarian-nonsectarian, or public-non-

public nature of the institution benefitted.” 413 U.S. at 783

n.38 (citation omitted). It was not necessary to address that

question in Nyquist because the only possible beneficiaries

of the New York tuition reimbursement program were the

parents of children who attended private schools. By con-

trast, the Ohio program in this case provides assistance both

to parents who elect to enroll their children in a private

school and to parents who elect to keep them in public

school. That difference, especially when coupled with the

manifest differences in the purpose and scope of the two

programs, distinguishes this case from Nyquist.’

2. Moreover, Nyquist must be read in light of this

Court’s subsequent decisions. As this Court recognized in

Agostini, the Court’s Establishment Clause jurisprudence

has undergone “significant{]” changes over the past two

decades, particularly in “the criteria used to assess whether

aid to religion has an impermissible effect.” 521 U.S. at 223,

237; see Mitchell, 530 U.S. at 845 (O’Connor, J.). Since

Nyquist, this Court has repeatedly upheld government pro-

grams that offer aid “to a broad range of groups or persons

without regard to their religion.” Mitchell, 5380 U.S. at 809

(plurality). And, “{aJs a way of assuring neutrality, [the

Court has] repeatedly considered whether any governmental

aid that goes to a religious institution does so ‘only as a

result of the genuinely independent and private choices of

individuals.’” Jd. at 810 (quoting Agostini, 521 U.S. at 226);

see id. at 841-843 (O’Connor, J.); pp. 12-14, supra.

In Mueller, the dissenters argued that Nyquist “estab-

lished that a State may not support religious education

either through direct grants to parochial schools or through

financial aid to parents of parochial school students.” 463

U.S. at 404. Indeed, they argued that “the Minnesota stat-

ute [in Mueller] ha{d] an even greater tendency to promote

religious education than the New York statute struck down

in Nyquist, since the percentage of private schools that are

nonsectarian is far greater in New York than in Minnesota.”

7 Nothing in Nyquist suggests that in order to survive an Establish-

ment Clause challenge a State must compel public school participation in a

program that provides assistance to the families of students who attend

private schools. Nor would there ve any doctrinal foundation for such a

rule. Nonetheless, under the program in Nyquist, public schools were not

even authorized to participate (or benefit), whereas under the Ohio pro-

gram in this case they indisputably are. That distinction makes it less

likely that the State may be viewed as endorsing religion by enacting the

type of pilot scholarship program at issue here.

Id. at 409 n.3. The Court rejected that analysis, and held

that the Minnesota program did not have an impermissible

effect. Instead, the Court explained that, “[wJhere, as here,

aid to parochial schools is available only as a result of deci-

sions of individual parents no ‘imprimatur of state approval’

can be deemed to have been conferred on any particular relig-

ion, or on religion generally.” Jd. at 399 (citation omitted).°

Since Mueller, that private-choice principle has become

deeply embedded in this Court’s Establishment Clause juris-

prudence. See, ¢.g., Witters, 474 U.S. at 487; Zobrest, 509

U.S. at 10; Agostini, 521 U.S. at 226; Mitchell, 530 U.S. at

811 (plurality); id. at 842-843 (O’Connor, J.). Nyquist must

be read today in light of that evolution of this Court’s

Establishment Clause jurisprudence. Because of the signifi-

cant differences between the Ohio pilot program in this case

and the New York program invalidated in Nyquist, there is

no need for the Court to reconsider the holding in Nyquist.

But if the Court disagrees, it should hold in this case that, to

the extent that Nyquist extends to the type of private-

choice program in this case, Nyquist has been overtaken by

this Court’s subsequent decisions.

*- *+ *¢+ & *®

“The American people have always regarded education

and acquisition of knowledge as matters of supreme impor-

tance which should be diligently promoted.” Meyer, 262 U.S.

at 400 (citing Northwest Territory Ordinance of 1787, ch. 8,

Art. III, 1 Stat. 52). The pilot scholarship program chal-

lenged in this case was enacted for the commendable, and

indisputably secular, purpose of providing the children of

8 In distinguishing Nyquist, the Mueller Court also noted that the

educational assistance program in Nyquist benefitted only the parents of

students enrolled in private schools, whereas the program in Mueller

benefitted the parents of students in private as well as public schools. See

463 U.S. at 398. As discussed above, the program here has the same broad

scope as the one in Mueller.

30

predominantly low-income families in Cleveland’s failing

public school district with an opportunity to obtain the same

level of education available to children elsewhere in the

State who benefit from greater educational opportunities.

The court of appeals erred in invalidating that program on

the ground that it establishes religion in violation of the

First Amendment.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

NOVEMBER 2001

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

GREGORY G. GARRE

Assistant to the Solicitor

General

ROBERT M. LOEB

LOWELL V. STURGILL JR.

Attorneys