Amicus Curiae Brief — Zelman v. Simmons-Harris

Supreme Court, U.S.

yr ye i L E D

JUN 20 2001

Supreme Court of the United States

+

SUSAN TAVE ZELMAN, et al.,

Petitioners,

Vv.

DORIS SIMMONS-HARRIS, et al.,

Respondents.

+

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

>

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION, INDEPENDENT VOICES FOR

BETTER EDUCATION, TEACHERS FOR BETTER

EDUCATION, IRA J. PAUL, AND ROBERT N.

WRIGHT IN SUPPORT OF PETITIONERS

+

SHARON L. BROWNE

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation,

Independent Voices for Better

Education, Teachers for Better

Education, Ira J. Paul, and

Robert N. Wright

i

QUESTION PRESENTED

Ohio’s experimental school choice program provides tax-

funded scholarships to low-income children who live in the

Cleveland City School District. Parents of children in

kindergarten through eighth grade may use the scholarships to

pay tuition for those children at the private schools of their

choosing, including religious schools. In light of Ohio’s

program, the question presented is as follows:

Whether the Establishment Clause prohibits Ohio’s

program from authorizing parents to use the scholarships at any

private school, whether religious or not.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....ccccccccscsvccccccscvccess i

TABLE OF AUTHORITIES ..... cc cccccccccsccccevccess iii

INTEREST OF AMICICURIAE .............00ee eee eee !

STATEMENT OF THECASE ............ See 3

SUMMARY OF ARGUMENT .............:sceeeeeceees 7

Nl) MP 8

1. THIS COURT SHOULD ACCEPT THIS CASE

TO OVERTURN LEMON v. KURTZMAN .........--- 8

A. The Application of the Lemon Test Has Led

to Inconsistent and Confusing Results............ 9

B. This Court Should Resolve the Two-Tiered

System of Establishment Clause Jurisprudence ... 13

il. THIS COURT SHOULD ACCEPT THIS CASE

TO REAFFIRM THAT THE DISTRIBUTION

OF A GENERAL GOVERNMENT BENEFIT

IN A NEUTRAL FASHION DOES NOT

VIOLATE THE ESTABLISHMENT CLAUSE ....... 16

lll. THIS CASE PRESENTS CONSTITUTIONAL

ISSUES OF NATIONWIDE IMPORTANCE THAT

CAN ONLY BE RESOLVED BY THIS COURT ..... 18

CONCLUIGION onc pccccesccccccessesesenseuseeeeeees 20

TABLE OF AUTHORITIES

Page

Cases

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

Aguilar v. Felton, 473 U.S. 402 (1985) ... 2... ..0.004. 15

Board of Education of Central School District

No. | v. Allen, 392 U.S. 236 (1968) ............... 10

Board of Education of Kiryas Joel

Village School District v. Grumet,

ED ic ou ode bebecteeess 7, 14-15, 17-18

Committee for Public Education & Religious

Liberty v. Nyquist, 413 U.S. 756 (1973) ...... 5-6, 10-11

County of Allegheny v. American Civil

Liberties Union, Greater Pittshurgh

NE 12

Edwards ». Aguillard, 482 U.S. 578 (1987) ............ 8

Everson v. Board of Education of the

Township of Ewing, 330 U.S. 1 (1947) ...... 7, 9-10, 16

Holmes v. Bush, 767 So. 2d 668 (Fla. Dist.

Ct. App. 2000), review denied, 2001 Fla.

ET MEE og oc occcccccscccccccess 19

Holmes v. Bush (Circuit Court of the Second

Judicial Circuit for Leon County, Florida,

Case Nos. CV 99-3370, CV 99-4110) ........... 2,19

Lamb's Chapel v. Center for Moriches Union

Free School District, 508 U.S. 384 (1993) .......... 12

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

Mitchell v. Helms, 530 U.S. 793 (2000) ...... 1-2, 6,9, 12

iV

TABLE OF AUTHORITIES—Continued

Page

Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819 (1995) .......... l

Simmons-Harris v. Goff,

FOO CRe ee ED SOUED cccccccedseccceceses 3-4

Simmons-Harris v. Zelman,

234 F.3d 945 (6th Cir. 2000) ............04.. 3-6, 17

Wallace v. Jaffree, 472 U.S. 38 (1985) «22.6... 8,17

Witters v. Washington Department of Services

for the Blind, 474 U.S. 481 (1986) ........... 4,11, 13

Zobrest v. Catalina Foothills School

Pieteh, SEP es CGRSUED cbc cccccccssves 4,7, 14,17

Rules

Dappemen Comms GE FF ccc cccscccccvccesecceseseces l

DEST co ccccccewsdwsdddwsseasbavedetoanensen l

Miscellaneous

National Center for Education Statistics, The Nation's

Report Card: Fourth-Grade Reading 2000 (2001) ... 18

Nina Shokraii Rees, The Heritage Foundation,

School Choice 2000 (2000) ............0500 18-19

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation, Independent Voices for Better Education, Teachers

for Better Education, Ira J. Paul, and Robert N. Wright

respectfully submit this brief amicus curiae in support of

Petitioners, Susan Tave Zelman, ef a/.' Consent to the filing of

this brief has been granted by counsel for all parties. Copies of

the general letters of consent have been lodged with the Clerk

of the Court.

Amicus Pacific Legal Foundation (PLF) is a nonprofit,

tax-exempt organization incorporated under the laws of

California for the purpose of participating nationally in

litigation matters affecting the public interest. PLF is

submitting this brief because it believes its public policy

perspective and litigation experience in the area of the First

Amendment to the United States Constitution will be of

assistance to this Court in its deliberations. PLF has

participated in numerous cases before this Court including

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

and Visitors of the University of Virginia, 515 U.S. 819 (1995).

and Agostini v. Felton, 521 U.S. 203 (1997). PLF participated

in this case as amicus curiae in the court below.

Amicus Independent Voices for Better Education is a

nonprofit, tax-exempt Florida corporation. Together with

Teachers for Better Education, its affiliate, this Amicus has

more than | ,000 members and supporters consisting of parents

and teachers. These groups were formed to improve the quality

of education in Florida’s public schools. The education reforms

they advocate include: limited class size, funding classrooms

before administrative functions, the elimination of teacher

' Pursuant to Supreme Court Rule 37.6, Amici Curiae affirm that no

counsel for any party in this case authored this brief in whole or in

part; and, that no person or entity has made a monetary contribution

specifically for the preparation or submission of this brief.

2

tenure, meaningful teacher competency testing, and vouchers

for low-income families. Amici Ira J. Paul and Robert N.

Wright are teachers in the Florida public schools.

Amici Independent Voices for Better Education, Teachers

for Better Education, Ira J. Paul, and Robert N. Wright are also

amici curiae in Holmes v. Bush (Circuit Court of the Second

Judicial Circuit for Leon County, Florida, Case Nos. CV 99-

3370, CV 99-4110). Holmes v. Bush involves a challenge to

Florida’s opportunity scholarship program—a school choice

plan substantially similar to the Ohio Scholarship Program at

issue in this case—as violating the federal Establishment

Clause and state law. Independent Voices for Better Education,

Teachers for Better Education, Ira J. Paul, and Robert N.

Wright have been granted amicus status to support the school

choice program before the Florida court.

Amici believe that the issues raised by the case at bar

reach far beyond the Cleveland public schools, presenting a

question that goes to the heart of education reform programs

across the country: Whether a state program that distributes

educational assistance to individuals on the basis of neutral

criteria violates the Establishment Clause. Amici believe that

it does not and have continually litigated on behalf of the public

interest to ensure that effective government programs that

remain neutral toward religion do not fall victim to

Establishment Clause challenges. Yet until this Court overrules

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

Agostini v. Felton, 521 U.S. 203, and Mitchell v. Helms, 530

U.S. 793, embody the Establishment Clause analysis applicable

to state voucher programs, endless rounds of costly and divisive

litigation will continue in this area. Amici file this brief to urge

the Court to grant the petition to resolve that question.

3

STATEMENT OF THE CASE

Ohio’s Pilot Project Scholarship Program (Ohio

Scholarship Program) first went into effect in the Fall of 1996.

It establishes a pilot project for any school district in the state

that has been the subject of a federal court order “‘requiring

supervision and operational management of the district by the

State superintendent.”"” Simmons-Harris v. Zelman, 234 F 3d

945, 948 (6th Cir. 2000) (citation omitted). Cleveland is the

only school district presently in this category.

The Ohio Scholarship Program provides scholarships to

children residing in the Cleveland school district and enrolled

in kindergarten through eighth grade. /d. In admitting students

to the program, preference is given to students from low-

income families, which the program defines as families whose

income is below 200% of the poverty line. /d.

The Ohio Scholarship Program permits the participation

of private schools, religious or nonreligious, if they are located

within the boundaries of the Cleveland school district and meet

the state’s secular standards for providing an adequate

education for all children in the state. Jd Each scholarship

awarded is payable to the parents of the student entitled to the

scholarship, to be used at whichever participating school has

been selected by the student’s parents. /d.

In 1996, soon after the Ohio Scholarship Program was

enacted, lawsuits were filed in state court. Simmons-Harris v.

Goff, 711 N.E.2d 203 (Ohio 1999). The Ohio Supreme Court

found the program constitutional under the First Amendment’s

Establishment Clause for at least two reasons: First, it is

perfectly neutral. There is nothing about the program that

prevents a school from participating, or facilitates its

participation, based on its status as religious or nonreligious,

4

private or public.’ Second, not one penny of state money goes

to a religious school except through the individual choices of

participating families. No child is assigned to a religious

school—and therefor, no program revenues are received by

religious schools—except through the intervening personal

choice of the student’s parents.

The Ohio Supreme Court’s affirmation of the

constitutionality of the program was based on a careful review

of this Court’s Establishment Clause jurisprudence. The court

relied primarily on Zobrest v. Catalina Foothills School

District, 509 U.S. 1 (1993), Witters v. Washington Department

of Services for the Blind, 474 U.S. 481 (1986), and the modified

Lemon test announced in Agostini v. Felton, 521 U.S. 203.

However, the Ohio high court found the adoption of the Ohio

Scholarship Program had violated the single-subject rule of the

state constitution. 711 N.E.2d at 216.

The program was re-enacted in all pertinent respects in

1999. 234 F.3d at 949-50. Some of the same plaintiffs then

filed a second lawsuit challenging the program in federal court.

Id. On December 11, 2000, by a narrow 2-1 vote, the Sixth

Circuit Court of Appeals, in the opinion below, affirmed a

permanent injunction preventing the State of Ohio from

operating the Ohio Scholarship Program. Relying on the test

set out in Lemon v. Kurtzman, 403 U.S. at 612-13, the court of

appeals held that the program violates the Establishment Clause

on the grounds that it has the primary effect of aa. uncing

religion and that it constitutes an endorsement of religion and

sectarian education. 234 F.3d at 961.

> The program permits public school districts adjacent to the

Cleveland district to participate in the program and receive

scholarship payments on behalf of parents, although at present none

of these public school districts has enrolled. Zelman, 234 F.3d

at 949.

5

The lower court looked to the decisions issued by this

‘Court applying the Lemon test and determined the “most

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

Committee for Public Education & Religious Liberty v. Nyquist, -

413 U.S. 756... . (1973).” 234 F.3d at 953. In Nyquist, this

Court invalidated a tuition-reimbursement and tax credit

program where public education assistance was made available

only to parents of children in nonpublic schools. 413 U.S. at

780. The Nyquist Court recognized that such a narrow class of

recipients “cannot be squared with the principle of neutrality

established by the decisions of this Court.” /d. at 793. As the

dissent noted,

[t]he purpose of the Ohio statute, on the other hand,

is to provide financial help to poverty-level students

attending the public schools in Cleveland in order to

enable them, if they wish, to attend nonreligious

private schools, religious private schools, public

schools in neighboring districts that wish to

participate in the voucher program, or to obtain

special tutoring while remaining in the Cleveland

public schools.

Zelman, 234 F.3d at 964-65 (Ryan, J., dissenting).

The Sixth Circuit rejected the Ohio Supreme Court’s

reasoning that “‘the Nyquist holding [had been] undermined’ by

subsequent cases and was thus no longer good law.” 234 F.3d.

at 949 (citation omitted). Instead, the court below noted that

“(t]he Supreme Court has not overturned or rescinded the

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

analyses,” id. at 952, and read this Court’s recent

pronouncements as illustrating the “flexibility” of the Lemon

test. Id. at 953.

The court of appeals noted that in Agostini v. Felton, 521

U.S. at 237, this Court stated:

6

“[W]e do not acknowledge, and we do not hold, that

other courts should conclude our moire recent cases

have, by implication, overruled an earlier precedent”

... “that if a precedent of this Court has direct

application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

Appeals should follow the case which directly

controls, leaving to this Court the prerogative of

overruling its own decisions.”

234 F.3d at 954-55. Although the Nyquist opinion has not been

overruled, ciearly some of its reasoning has been undermined

by more recent Establishment Clause jurisprudence.

The Sixth Circuit also recognized that this Court’s recent

decision in Mitchell v. Helms, 530 U.S. 793, was sharply

divided. Instead of applying Justice Thomas’ plurality opinion

upholding the constitutionality of a federally mandated

Louisiana program in which the principals of neutrality and

private choice were emphasized, the Sixth Circuit applied

Justice O’Connor’s narrow opinion concurring in the judgment.

234 F.3d at 957. Thus, according to the court below, Mitchell

requires an inquiry into whether state funds have been diverted

to religious uses. /d. But this type of diversion inquiry is

applicable only in the context of a public program in which the

government provides funds directly to religious schools. The

diversion inquiry does not apply when the program gives funds

to the “student beneficiary;” instead, who “can attend a

religious school and yet retain control over whether the secular

government aid will be applied toward the religious education.”

Mitchell, 530 U.S. at 842 (O’Connor, J., concurring).

Despite the urging of the dissenting judge to take the case

for en banc review because of the “immense importance to the

Cleveland children who are directly affected, and indeed to the

nation,” 234 F.3d. at 974 (Ryan, J., dissenting), the Sixth

Circuit denied the motion.

7

SUMMARY OF ARGUMENT

In Lemon vy. Kurtzman, this Court articulated a three-part

test to evaluate possible Establishment Clause violations.

Lemon stated that, to pass constitutional muster under the

Establishment Clause, a statute or government action must have

a secular legislative purpose, its primary effect must be one that

neither advances nor inhibits religion, and it must not foster an

excessive government entanglement with religion. Lemon, 403

U.S. at 612-13. Until this Court expressly declares that Lemon

is no longer the law, courts throughout this country will

continue to struggle with Lemon’s imprecise test.

While this Court has not formally repudiated Lemon, its

recent decisions have failed to rely on the three-pronged test set

forth in that decision. Instead of passing Establishment Clause

claims through the three prongs of Lemon, this Court has

instead asked whether the government’s action was a neutral

benefit availab'e to all handicapped children, Zobrest v.

Catalina Foothills School District, 509 U.S. 1, or acts neutrally

toward religion, Board of Education of Kiryas Joel Village

School District v. Grumet, 512 U.S. 687 (1994). Although this

Court modified the Lemon test in Agostini v. Felton, 521 U.S.

203, it did not expressly overrule Lemon. As a consequence,

the Nation’s lower courts must struggle to apply the confusing

and indeterminate Lemon test, only to have this Court review

those decisions under different constitutional standards. An

inefficient and unpredictable two-tiered system of

Establishment Clause jurisprudence has resulted.

In recent Establishment Clause cases, this Court has

explained that government programs that neutrally provide

benefits to a large class of citizens do not offend the First

Amendment simply because a religious institution might

receive an indirect benefit. Everson v. Board of Education of

the Township of Ewing, 330 U.S. 1, 18 (1947); Zobrest v.

Catalina Foothills School District, 509 U.S. 1. This Court

should grant certiorari in the present case to declare expressly

that the neutrality test laid out in Agostini, and not the three-

pronged test announced in Lemon, should be used to determine

whether the Establishment Clause has been violated.

ARGUMENT

I

THIS COURT SHOULD ACCEPT THIS

CASE TO OVERTURN LEMON v. KURTZMAN

Thirty years ago, in Lemon v. Kurtzman, this Court

formulated a three-part test for determining whether state aid to

sectarian schools complies with the First Amendment: “First,

the statute must have a secular legislative purpose; second, its

principal or primary effect must be one that neither advances

nor inhibits religion; finally, the statute must not foster ‘an

excessive government entanglement with religion.’” 403 U.S.

at 612-13 (citations omitted). This three-pronged test has been

the subject of strong criticism by members of this Court.

Our cases interpreting and applying the purpose

test have made such a maze of the Establishment

Clause that even the most conscientious

governmental officials can only guess what motives

will be held unconstitutional.

Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J.,

dissenting).

If a constitutional theory has no basis in the

history of the amendment it seeks to interpret, is

difficult to apply and yields unprincipled results, |

see little use in it.

Wallace v. Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, J.,

dissenting).

This Court’s Establishment Clause jurisprudence remains

in disarray even after its decisions in Agostini v. Felton, 521

= ..

9

U.S. 203, and Mitchell v. Helms, 530 U.S. 793. Although

Agostini was heralded as eliminating the chaos of

Establishment Clause jurisprudence, the meaning of Agostini is

not clear. In fact, the subsequent decision in Mitchell v. Helms

shows that this Court itself is divided on how to interpret and

apply Agostini. Justice Thomas, writing for a plurality of four

in Mitchell, cited Agostini as establishing that “aid that is

offered to a broad range of groups of persons without regard to

religion” is neutral and therefore constitutional. 530 U.S. at

809. However, Justice O’Connor disagreed, stating that

“(the Court] has never held that a government-aid program

passes constitutional muster solely because of the neutral

criteria it employs as a basis for distributing aid.” /d. at 839

(O’Connor, J., concurring).

The unresolved chaos surrounding this Court’s

Establishment Clause jurisprudence is a direct result of the

doctrinal deficiency of the three-part test of Lemon v. Kurtzman.

This Court should grant certiorari in the present case to

explicitly overrule Lemon and put an end to the two-tiered

system of Establishment Clause jurisprudence that guides aid-

to-education cases.

A. The Application of the Lemon Test Has Led

to Inconsistent and Confusing Results

Cases decided under the three-pronged Lemon test are

inconsistent with each other and contradict cases decided prior

to the adoption of the test. Nowhere has this inconsistency been

greater than in the area of public aid to education programs

involving religious schools.

In 1947, this Court in Everson v. Board of Education of

the Township of Ewing, 330 U.S. 1, upheld a New Jersey statute

authorizing local school districts to reimburse parents tor the

cost of transporting their children to and from school on public

transportation. /d. at 17. The reimbursement was available to

all parents irrespective of whether their children went to public

10

or private schools. The Court recognized that general welfare

programs neutrally benefitting all persons did not offend the

Establishment Clause. /d. at 18.

Twenty-one years later, in Board of Education of Central

School District No. ] v. Allen, 392 U.S. 236 (1968), this Court

upheld the constitutionality of a New York statute that required

public schools to loan textbooks free of charge to all students,

including students attending parochial schools. /d. at 238. The

Allen Court found that the New York statute was a part of a

neutrally applied general welfare program. The statute neither

advanced nor inhibited religion because the textbooks were

merely lent to parochial schools as part of a general program to

benefit all schoolchildren regardless of the school attended. /d.

at 243-44.

In the 1970s, however, this Court moved away from

applying a neutrality test to aid-to-education programs. In

Lemon, the Court examined the constitutionality of a program

loaning secular textbooks to private schools and providing

salary supplements for teachers. The Court began its inquiry by

confessing that

[c]andor compels acknowledgment . . . that we can

only dimly perceive the lines of demarcation in this

extraordinarily sensitive area of constitutional law.

Lemon, 403 U.S. at 612. Relying on Allen, the Court found that

the loan of textbooks was constitutional, while simultaneously

holding that the salary supplements resulted in excessive

entanglement with religion. 403 U.S at 614.

Applying Lemon in Committee for Public Education &

Religious Liberty v. Nyquist, 413 U.S. 756, this Court held

unconstitutional a New York program that provided cash for

maintenance and equipment to nonpublic schools serving low-

income families. The program also provided a partial tuition

reimbursement to low-income parents of students in nonpublic

11

schools and a tax deduction for other parents of nonpublic

school students. Jd. at 764-69. The Nyquist Court held there

was no way to ensure that the monies received pursuant to the

tuition-reimbursement portion of the program, even though

received directly by the parents and only indirectly by the

schools, would be restricted to secular purposes. /d. at 756.

The Nyquist Court specifically reserved the question of whether

the same outcome would be obtained in “a case involving some

form of public assistance (e.g., scholarships) made available

generally without regard to the sectarian-nonsectarian, public-

nonpublic nature of the institution benefitted.” /d. at 782 n.38.

In Witters v. Washington Department of Services for the

Blind, 474 U.S. 481, this Court overturned the Washington

Supreme Court and sustained a program that used government

funds to provide vocational rehabilitation services to a blind

student attending a Christian college. Reaffirming that “the

lines of demarcation in this extraordinarily sensitive area of

constitutional law” have been only dimly perceived, this Court

found no Establishment Clause violation because the aid did not

directly subsidize religion. “Any aid provided under

Washington’s program that ultimately flows to religious

institutions does so only as a result of the genuinely

independent and private choices of aid recipients.” 474 U.S. at

487.

From the Nyguist decision in 1973 until the Witters

decision in 1986, this Court attempted to clarify what types of

state and federal aid to sectarian schools were permissible.

Although various Supreme Court Justices have challenged the

12

continuing validity of the Lemon test,’ Lemon remains the law

of the land and courts below must attempt to apply it.

The present chaos of Establishment Clause jurisprudence

is highlighted by this Court’s application of the retooled Lemon

test announced in Agostini v. Felton, 521 U.S. at 203, 230-33,

to the school aid program addressed in Mitchell v. Helms, 530

U.S. 793. In Agostini, this Court held that “a federally funded

program providing supplemental, remedial instruction to

disadvantaged children on a neutral basis is not invalid under

the Establishment Clause when such instruction is given on the

premises of sectarian schools by government employees” who

are monitored for religious neutrality in monthly visits.

Agostini, 521 U.S. at 234-35. The Agostini Court stressed that

it was-not revising “the general principles we use to evaluate

whether government aid violates the Establishment Clause.” /d.

at 222. Agostini simply modified the analytical framework of

the three Lemon prongs.

This Court’s first opportunity to employ the newly

modified purpose and effect test arose three years later in

Mitchell v. Helms. Yet, the plurality opinion in Mitchell

applied these tests in a narrow fashion, reaffirming that

neutrality would be established if the aid flowing to the

religious institution was the result of the private decisions of

individuals, not the state.

One need look no further than the facts of this case to see

the strange results the Lemon test has generated. The Sixth

Circuit relied upon the Nyquist decision to find the Ohio

Scholarship Program unconstitutional; whereas, the Ohio

> See Lamb's Chapel v. Center Moriches Union Free School

District, 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring); County

of Allegheny v. American Civil Liberties Union, Greater Pittsburgh

Chapter, 492 U.S. 573 (1989) (Kennedy, J., joined by

Rehnquist, C.J., White & Scalia, JJ., concurring in the judgment

in part and dissenting in part).

13

Supreme Court relied upon Witters to find the same program

constitutionally sound. It is apparent that the outcome of state

aid-to-education programs challenged as violating the Establish

Clause is dependent upon which line of cases the lower court

chooses to follow, and which line they choose to discount.

In order to end this doctrinal chaos, this Court should

grant the present petition and overturn Lemon.

B. This Court Should Resolve the Two-Tiered

System of Establishment Clause Jurisprudence

Although its subsequent decisions suggest Lemon may

have fallen out of favor with this Court, the lower state and

federal courts are constrained to apply the three-part test until

it is expressly overruled. In Agostini v. Felton, this Court

reminded the lower courts:

We do not acknowledge, and we do not hold,

that other courts should conclude our more recent

cases have, by implication, overruled an earlier

precedent. We reaffirm that “if a precedent of this

Court has direct application in a case, yet appears to

rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the

case which directly controls, leaving to this Court the

preroeative of overruling its own decisions.”

Agostini, 521 U.S. at 237 (citation omitted).

The uncertainty surrounding the applicability of Lemon

has led to a two-tiered system of Establishment Clause

jurisprudence, with lower courts applying the Lemon

framework and this Court applying a different test. The

discordant results achieved by this split-level system can be

seen by evaluating this Court’s more recent Establishment

Clause cases.

14

Zobrest v. Catalina Foothills School District, 509 U.S. 1,

involved a chalienge by a deaf student to a school district's

refusal to provide him with a sign-language interpreter to aid in

his studies at a parochial high sci ool. The school district

contended that the Establishment Clause prohibited it from

providing the requested interpreter. The Ninth Circuit applied

the Lemon test and concluded that the placement of the

interpreter in the parochial school would violate the

Establishment Clause. /d. at 5. This Court reversed that ruling

because the provision of interpreters was a neutral benefit

available to all handicapped children in the school district,

regardless of the sectarian or nonsectarian nature of the school;

thus, the Establishment Clause was not violated. /d. at 10.

This Court employed a similar analysis in Board of

Education of Kiryas Joel Village School District v. Grumet,

512 U.S. 687 (1994). There, taxpayers brought an action

challenging the constitutionality of a New York statute that

created a special school district for members of the Satmar

Hasidim religion. The state trial court found that the statute

failed all three prongs of the Lemon test and, therefore, violated

the Establishment Clause. /d. at 695. The state appellate court

agreed. /d.

Although this Court ultimately agreed with the

conclusions of the lower courts, it did so by employing a wholly

different analysis. Instead of applying Lemon, this Court rested

its decision on the fact that the statute in question extended a

governmental benefit in a nonneutral fashion.

The judicial inefficiency of using one test throughout the

lower courts, only to change the analysis when the case reaches

the Nation’s Highest Court was not lost on the dissenting

Justice.

[T]he Court’s snub of Lemon today (it receives only

two “see also” citations, in the course of the

opinion’s description of Grendel's Den) is

15

particularly noteworthy because all three courts

below (who are not free to ignore Supreme Court

precedent at will) relied on it, and the parties (also

bound by our case law) dedicated over 80 pages

of briefing to the application and continued vitality

of the Lemon test. In addition to other sound reasons

for abandoning Lemon, it seems quite inefficient for

this Court, which in reaching its decisions relies

heavily on the briefing of the parties and, to a lesser

extent, the opinions of lower courts, to mislead lower

courts and parties about the relevance of the Lemon

test.

Id. at 750-51 (Scalia, J., dissenting) (citations omitted).

This two-tiered standard was dramatically highlighted in

Agostini v. Felton, wherein petitioners sought to have this Court

reconsider its earlier decision in Aguilar v. Felton, 473 U.S. 402

(1985). In Aguilar, this Court applied Lemon to bar New York

City from sending public school teachers into parochial schools

to provide remedial education for disadvantaged children under

a congressionally mandated program. /d. at 404. This ruling

forced school districts throughout the Nation to seek creative

ways to provide sorely needed educational assistance to

children attending parochial schools. Agostini, 521 U.S. at 213.

Frustrated with the exorbitant costs of maintaining this

program, New York City, along with parents of parochial

school students, brought a motion seeking relief from the

permanent injunction imposed under Aguilar. The Second

Circuit Court of Appeals observed that the landscape of

Establishment Clause jurisprudence had changed, but felt bound

by the precedent of Aguilar. Id. at 212. Granting certiorari in

Agostini, this Court announced a new, modified Lemon test.

Under the new standard, this Court held that the Establishment

Clause no longer prohibits state programs from placing publicly

employed teachers on the premises of parochial schools in order

16

to provide remedial and supplemental secular education to

disabled and disadvantaged children. /d. at 234-35.

In each of these cases the lower courts reviewed the

Establishment Clause issue under the Lemon test, and in each

instance this Court ultimately employed a different standard to

determine whether that clause had been violated. Not only is

this dual regime inefficient and confusing, it makes the level of

constitutional protection indeterminate, varying according to

the facts of each case. Until this Court expressly declares that

Lemon is no longer the law, courts throughout the country will

continue to scrutinize fact patterns in search of secular

purposes, primary effects, and excessive entanglements. This

Court should accept this case to explicitly overrule Lemon, to

end the current two-tiered system of Establishment Clause

jurisprudence, and to hold that so long as the government

provides benefits in a neutral manner, the Establishment Clause

is not offended.

THIS COURT SHOULD ACCEPT

THIS CASE TO REAFFIRM THAT THE

DISTRIBUTION OF A GENERAL GOVERNMENT

BENEFIT IN A NEUTRAL FASHION DOES NOT

VIOLATE THE ESTABLISHMENT CLAUSE

This Court has long recognized that the First Amendment

requires the government to remain neutral toward religion.

That Amendment requires the state to be a neutral in

its relations with groups of religious believers and

non-believers; it does not require the state to be their

adversary. State power is no more to be used so as

to handicap religions, than it is to favor them.

Everson v. Board of Education of the Township of Ewing,

330 U.S. at 18. More recently, the Court has reaffirmed the

principle of neutrality in dealing with religion.

17

[W]e have consistently held that government

programs that neutrally provide benefits to a broad

class of citizens defined without reference to religion

are not readily subject to an Establishment Clause

challenge just because sectarian institutions may also

receive an attenuated financial benefit.

Zobrest, 509 U.S. at 8.

[T]he [neutrality] principle is well grounded in our

case law, as we have frequently relied explicitly on

the general availability of any benefit provided

religious groups or individuals in turning aside

Establishment Clause challenges.

Kiryas Joel, 512 U.S. at 704.

The Ohio Scholarship Program in the case at bar is an

excellent model of the type of government program that

survives constitutional scrutiny under a religiously neutral

examination. The focus of the program is on low-income

families with children trapped in the failing Cleveland public

school system, and the scholarship aid is available to students

regardless of the public or nonpublic nature of their school of

choice. Zelman, 234 F.3d at 948. Participation in the Ohio

Scholarship Program by educational institutions is based

entirely on religiously neutral criteria. /d at 948-49. No

preference for parochial schools is given; no preference for

secular schools is given. /d.

When the government offers a neutral service that is not

designed to help religion, the evil sought to be avoided by the

Establishment Clause, the establishment of a national church,

is not implicated. See Wallace v. Jaffree, 472 U.S. at 106

(Rehnquist, J., dissenting). “The Establishment Clause does not

demand hostility to religion, religious ideas, religious people,

or religious schools.” Kiryas Joel, 512 U.S. at 717

(O’Connor, J., concurring). The neutrality test ensures that the

government does not favor a particular religion, id. at 709; at

the same time, the test does not force government to

discriminate against religious institutions. This Court should

grant certiorari in the present case to reaffirm that wholly

neutral aid programs such as the Ohio Scholarship Program

fully comply with the requirements of the Establishment

Clause.

THIS CASE PRESENTS CONSTITUTIONAL

ISSUES OF NATIONWIDE IMPORTANCE THAT

CAN ONLY BE RESOLVED BY THIS COURT

A reaffirmation by this Court of a neutrality-based Equal

Protection standard would have profound beneficial

consequences for all American children enrolled in failing

public schools. The 2000 National Assessment of Educational

Progress disclosed that 63% of black and 56% of Hispanic

fourth-graders are below the most basic levels of proficiency in

reading. National Center for Education Statistics, The Nation's

Report Card: Fourth-Grade Reading 2000 (2001) at 31, 33.

Across the country, the school choice movement is securing

enactments to improve our failing schools. In 1999, it secured

an education tax credit program in Illinois, two new charter

school laws, and it continues to gain acceptance at the state

level. Amici especially direct the Court’s attention to the

importance of such a ruling in confirming the constitutional

soundness of the Florida A-Plus choice and accountability plan.

Florida was the first state to offer a “money back

guarantee” for students trapped in failing schools. The Florida

plan allows students statewide who have been enrolled for two

out of four years in a failing public school an opportunity to

attend a better public, private, or religious school of their choice

by providing state-paid tuition scholarships. Governor Bush, in

his foreword to School Choice 2000, explained the elements of

the plan: The state’s public schools are graded based on how

19

well their students perform on tests administered in grades three

through ten. When a public school has failed for two years

running (that is, when 60% of the school’s students score below

the basic level in reading, math, and writing) its students are

eligible to receive vouchers that enable them to transfer to

another public or private school of their choice. Nina Shokraii

Rees, The Heritage Foundation, School Choice 2000 (2000)

at V-Vii.

Currently, more than 50 students in Pensacola are

attending private schools through this program, and more

than 70 Pensacola students are using the program to attend

higher-performing public schools. Significantly, since the

implementation of the Florida A-Plus choice and accountability

plan almost two years ago, the number of failing public schools

in Florida has dropped from 78 to only 4.

Despite the demonstrated salutary effects of Florida’s A-

Plus plan for both the state’s children and their schools, various

plaintiffs immediately filed lawsuits against this program,

claiming that it violates both federal and state law. Holmes v.

Bush (Circuit Court of the Second Judicial Circuit for Leon

County, Florida, Case Nos. CV 99-3370, CV 99-4110).

Recently, the Florida Supreme Court let stand the decision of

the First District Court of Appeals upholding the

constitutionality of the state’s groundbreaking opportunity

scholarship program. 767 So. 2d 668 (Fla. Dist. Ct. App.

2000), review denied, 2001 Fla. LEXIS 952 (Apr. 24, 2001).

The appellate court decision stated that public funds may be

spent in private schools under certain circumstances, including

through Florida’s A-Plus plan. 767 So. 2d at 675. The case is

now back before the trial court. The issue of whether it is

permissible for a state to use public funds for student tuition in

private schools will be addressed in these cases. Amici urge

this Court to grant the present petition for certiorari, in part, to

clarify that neutral programs such as the Florida A-Plus plan do

not offend the Establishment Clause of the First Amendment.

20

CONCLUSION

This case provides the Court with an opportunity to

overrule Lemon v. Kurtzman and restore a degree of consistency

to Establishment Clause jurisprudence. In recent decisions, this

Court has rejected Establishment Clause claims challenging

neutral governmental programs. However, by not explicitly

overruling Lemon, this Court has constrained the Nation’s

lower courts to toil under the three-part Lemon test, scrutinizing

fact patterns in search of secular purposes, primary effects, and

entanglements. This Court should grant certiorari in this case

and clarify, once and for all, that government programs that

neutrally provide benefits to a large class of citizens do not

offend the First Amendment simply because a religious

institution might receive an indirect benefit.

DATED: June, 2001.

Respectfully submitted,

SHARON L. BROWNE

Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Pacific Legal Foundation,

Independent Voices for Better

Education, Teachers for Better

Education, Ira J. Paul, and

Robert N. Wright