Amicus Curiae Brief — Zelman v. Simmons-Harris

: 10) JUN 22 200)

No. 00-1751 OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

SUSAN TAVE ZELMAN, Superintendent of Public

Instruction, ef al.,

Petitioners,

Vv.

DORIS SIMMONS-HARRIS, et ai.,

Respondents

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

Amicus Curiae Brief of the States of Florida, Alabama,

Delaware, Mississippi, Nebraska, and South Carolina in

Support of Petitioner

ROBERT A. BUTTERWORTH

Attorney General of Florida

By and Through

THOMAS E. WARNER

Solicitor General of Florida

(Counsel of Record)

RICHARD A. HIXSON

Deputy Solicitor General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

(850) 414-3681

(Additional Counsel on inside Cover)

Bill Pryor

Attorney General

State of Alabama

M. Jane Brady

Attorney General

State of Delaware

Mike Moore

Attorney General

State of Mississippi

Don Stenberg

Attorney General

State of Nebraska

Charles M. Condon

Attorney General

State of South Carolina

TABLE OF CONTENTS

pps i). ii

ME ¢. is eadesedseneevseee es |

SUMMARY OF THE ARGUMENT .............. 2

EET PTT Tee Te TT Te eT eee ree 4

I. THE SIXTH CIRCUIT’S DECISION

FAILS TO CONSIDER RECENT

ESTABLISHMENT CLAUSE JURISPRUDENCE

OF THIS COURT AND CONFLICTS WITH

MITCHELL V. HELMS AND AGOSTINI V.

Ad adhe bee cee 064 * oe bao 0 0 5

Il. THE SIXTH CIRCUIT’S DECISION IS

IN CONFLICT WITH DECISIONS OF

STATE COURTS OF LAST RESORT. ....... 9

Ill. THIS CASE PRESENTS AN

IMPORTANT QUESTION OF FEDERAL

LAW WHICH THE COURT SHOULD

DECIDE SO THAT THE STATES MAY

DEVELOP AND ENACT VALID

LEGISLATION WHICH MEETS THEIR

RESPONSIBILITIES TO PROVIDE A

QUALITY EDUCATION TO THEIR

UiGin ebb Gke 66s cece cece. 12

i ccc te ha ben eeh 66s 4 wa oe 6 oD 17

TABLE OF AUTHORITIES

CASES

Agostini v. Felton,

$21 U.S. 3B (ISON. «we cece eee 2,6,7,8,9

Anderson ex rel. Anderson v. Canton Mun. Separate

Sch. Dist., 232 F.3d 450 (5" Cir. 2000) ....... 12

Bush v. Holmes, 767 So. 2d 668

(Fie. DCA FEED 20 csieeseeeeee 3,12

Comm. for Pub. Educ. and Religious Liberty v. Nyquist,

413 U.S. TS6 (UGTED. «ose cun eee 2,6,7,8

Comm. for Pub. Educ. & Religious Liberty v. Regan,

444 U.S. 666 (SGGED. . 0 cee 0teu eee 6

Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998) .... 3,9

Jenkins v. Missouri, 216 F.3d 720 (8" Cir. 2000) ..... 12

Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999) .... 3,10

Lemon v. Kurtzman, 403 U.S. 602 (1971). ......... 6,9

Meek v. Pittenger, 421 U.S. 349 (1975) .. 2... oo ee. 6

Mitchel! v. Helms, 530 U.S. 793 (2000). ..... 2,3,6,7,8,9

**

Mueller v. Allen, 463 U.S. 388 (1983) ............. 11

Santosky v. Kramer, 455 U.S. 745 (1982) .......... 13

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

CC EEE TT eT e 3,5,11

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

i 4,5

Wolman v. Walter, 433 U.S. 229 (1977) ............ 6

Zelman v. Simmons-Harris, 528 U.S. 983 (1999) ....... 5

Zobrest v. Catalina Foothills Sch. Dist.,

eee ek wed eo ceene eueeé: 9

STATUTES

PED cc cdccccccecccccceces 12

eae. ws web doe ee ee es 14

ee eee ae ies caeee 14

ED Cceeesececvccccesets 15

Ch. 99-398, Laws of Fla. (1999) .............. 12,14

Ch. 2001-82, Laws of Fla. (2001).............. 14

Ohio Rev. Code Ann. § 3313.976 (2001) ........... 10

Ohio Rev. Code Ann. § 3313.979 (2001) ........... 10

ill

Wan. SUR, QO. | CR GENE 6 cece cccesscceues 10

MISCELLANEOUS

Kelly Thompson Cochran, Beyond School Financing:

Defining the Constitutional Right to an Adequate

Education, 78 N.C. L. Rev. 399 (2000). ........... 12

Dept. of Education, Education Reforms and Students

at Risk, at http://www.ed.gov/pubs/EdReform

PD cone csectantecesVebeceess 12

Education Week on the Web, The Urban Challenge,

(Jan. 8, 1998) at http://www .edweek.org/

DED ccc ccte eee nuaresccuscendess 12,16

Florida Department of Education School Choice

Programs, Opportunity Schools at http://www

opportunity schools.org. .. 2... ee eee cece eeeeees 14

Florida Department of Education 2000-2001 School

Accountability Report az http://www. firn.edu/doe

REE bocce cceseerssdedocuceeerivens 14

Jay P. Greene, An Evaluation of the Florida A+

Accountability and School Choice Program,

(Feb. 2001), Manhattan Institute for Policy Research at

http://www.manhattan-institute.org.html/cr aplus.htm .. 14

Patrick J. Heffernan, Ph.D., President, Floridians

for School Choice at http://www .floridachild.org . . . . 14,16

Caroline Hoxby, Choice Evidence, WSJ, (Jun. 7, 2001)

DEED co coc caseccevisessvsses 15

iv

Carol Innerst, Competing to Win: How Florida's

A+ Plan has Triggered Public School Reform,

(Apr. 2000), The Center for Education Reform at

http://www.edreform.com/school choice/compete.htm . .

14

INTEREST OF THE AMICI

The amici States are bound by their own constitutions to

provide for the education of their children and have a

fundamental interest in assuring the quality of their children’s

education.’ The amici States have a direct interest in this case

because the Sixth Circuit’s decision not only invalidates an

important component of educational program opportunities now

available to the States, but inhibits the ability of the States to

develop other meaningful and innovative programs which

address the complex problems of their educational systems and

meet the contemporary educational needs of their children.

' Each State constitution makes specific provision for education. See Ala.

Const. Art 14,§256, Alaska. Const. Art 17,§1, Ariz. Const. Art 11,§8,

Ark. Const. Art 14,§1, Cal. Const. Art 9,§1, Colo. Const. Art 9,§2,

Conn. Const. Art 8,§1, Del. Const. Art 10,§1, Fla. Const. Art 9,§1, Ga.

Const. Art 8,§1, Haw. Const. Art 11,§1, Idaho Const. Art 9,§4, Ill.

Const. Art 10,§1, Ind. Const. Art 8,§1, lowa Const. Art 9,§1, Kan.

Const. Art 6,§1, Ky. Const. Art 6,§1, La. Const. Art 8,§1, Me. Const.

Art 8,§1, Md. Const. Art 8,§1, Mass. Const. Pt. 2,C5,§2, Mich. Const.

Art 8,§1, Minn. Const. Art 13,§1, Miss. Const. Art 8,§201, Mo. Const.

Art 9,§1a, Mont. Const. Art 10,§1, Neb. Const. Art 7,§1, Nev. Const.

Art 11,§1, N.H. Const. Pt.2, Art 83, NJ. Const. Art 8,84, N.M. Const.

Art 12,§1, N.Y. Const. Art 11,§1, N.C. Const. Art 9,§1, N.D. Const.

Art 8,§1, Ohio Const. Art 6,§2, Okla. Const. Art 13,§1, Or. Art 8,§2,

Pa. Const. Art 3,§4, R.I. Const. Art 1,§12, S.C. Const. Art 11,§3, S.D.

Const. Art 8,§1, Tenn. Const. Art 11,§12, Tex. Const. Art 1,§1, Utah

Const. Art 10,§1, Vt. Const. Ch.11, §1, Va. Const. Art 8,§1, Wash.

Const. Art 9,§1, W.Va. Const. Art 12,§2, Wis. Const. Art 10,§1, Wyo.

Const. Art 1,§23.

SUMMARY OF THE ARGUMENT

The Sixth Circuit, in a divided panel decision, held that

the Ohio Pilot Project Scholarship Program violated the

Establishment Clause because the Program had the primary

effect of advancing and endorsing religion. In reaching this

decision the panel majority failed to consider and properly apply

the recent Establishment Clause jurisprudence of this Court.

Moreover, the panel majority mistakenly relied on an earlier

and distinguishable decision of this Court and failed to

recognize that the Ohio Program comports with the

constitutional criteria of neutrality required by this Court in

resolving Establishment Clause challenges.

Conflict with Decisions of the Court. The Sixth

Circuit decision conflicts with the recent Establishment Clause

jurisprudence of Mitchell v. Helms, 530 U.S. 793 (2000), and

Agostini v. Felton, 521 U.S. 203 (1997), where this Court

carefully delineated the appropriate criteria for reviewing

constitutional challenges to state educational programs which

may provide state aid to private schools. The Sixth Circuit’s

decision mistakenly relies on the Court’s earlier opinion in

Commission for Public Education and Religious Liberty v.

Nyquist, 413 U.S. 756 (1973) where the Court found that state

funds that directly pay for maintenance and repair of private

schools, both religious and nonreligious, as well as state grants,

tuition reimbursement, and income tax benefits to parents of

children attending New York nonpublic schools violated the

Establishment Clause. Nyquist is distinguishable from the Ohio

Program both factually and legally. In addition, the Sixth

Circuit’s decision does not properly apply the criteria prescribed

in Mitchell, specifically that the validity of a state educational

program under the Establishment Clause is determined by

whether funds for education are allocated to a sectarian

institution through a private choice made through participation

in a neutral program. Mitchell v. Helms, 530 U.S. 793, 794

(2000).

Conflict with State Courts of Last Resort. The Sixth

Circuit’s decision conflicts with decisions’ of other State courts

of last resort:

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

1998) (school choice program allowing use of

state monies for private school education did not

violate state or federal constitutional

establishment of religion provision.)

° Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999)

(tax credit for parents whose children attended

private schools did not violate the Establishment

Clause.)

° Simmons-Harris v. Goff, 711 N.E.2d 203, (Ohio

1999) (concluding in dicta that the original Ohio

Program did not violate the Establishment

Clause.)

Need to Resolve the Conflicts. This case presents an

> see also Bush v. Holmes, 767 So. 24 668 (Fla. 1* DCA 2000) (holding

that the Florida Opportunity Scholarship Program complies with state

constitutional provisions for a uniform system of public education and

remanding for consideration of Establishment Clause challenge.), rev.

denied. So.2d. (Fila. 2001).

important federal question which needs to be resolved because

it impacts the ability of the States to develop innovative

educational programs to provide for the education of their

children. In our federalist system it is important that the States

be permitted to meet educational challenges with innovative and

meaningful solutions. In addition to Ohio, other states,

including Florida, continue to develop programs which extend

educational opportunities to their children in nonpublic school

settings. The States need to be able to enact constitutionally

valid programs with the assurance that they comply with criteria

enunciated by this Court. Otherwise, the continued threat of

invalidation of such programs by federal courts undermines the

educational stability of the children enrolled in these programs

and further exacerbates the problems the programs were enacted

to solve.

The Court should grant Ohio’s Petition and resolve this

important federal issue.

ARGUMENT

The federal challenge in this case was instituted after the

1999 re-enactment of the Ohio Pilot Project Scholarship

Program. The Program was initially enacted in 1995 following

an order by the United States District Court mandating that the

Cleveland school district be placed under state management.’

The Ohio General Assembly implemented the school choice

program to address a crisis in the public school system of

Cleveland. The program was designed to award scholarships

on a preferential basis to low-income families whose children

would otherwise be consigned to attend failing public schools.

> Brief of State Appellants at 2, Simmons-Harris v. Zelman, 234 F.3d 945

(@* Cir. 2000)(No. 00-3055,00-3060, 00-3063)

4

The Program was initially challenged in state court. On

May 27, 1999, the Ohio Supreme Court found that the statute

implementing the Program violated the state constitution’s

single-subject requirement, but the Court stated that the

Program did not violate the federal Establishment Clause.

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

The Ohio General Assembly then reenacted the

Program, and the Respondents immediately thereafter instituted

this action in federal court. On August 25, 1999, the federal

district court entered a preliminary injunction enjoining the

operation of the Program. Simmons-Harris v. Zelman, 54 F.

Supp. 2d 725 (N.D. Ohio 1999). On October 19, 1999, an

application for stay of the district court injunction was filed with

this Court, which application was granted on November 5,

1999. Zelman v. Simmons-Harris, 528 U.S. 983 (1999). On

December 20, 1999, the district court entered summary

judgment permanently enjoining the operation of the Program

as violative of the Establishment Clause, but stayed the order

pending Sixth Circuit review. Simmons-Harris v. Zelman, 72 F.

Supp. 2d 834, 865 (N.D. Ohio 1999). Timely appeal was filed

in the Sixth Circuit Court of Appeals which, in a divided panel

decision, affirmed the district court. Simmons-Harris v.

Zelman, 234 F.3d 945 (6" Cir. 2000).

I. THE SIXTH CIRCUIT’S DECISION FAILS TO

CONSIDER THE RECENT ESTABLISHMENT CLAUSE

JURISPRUDENCE OF THIS COURT AND IS IN

CONFLICT WITH MITCHELL V. HELMS AND

AGOSTINI V. FELTON.

This Court has always regarded neutral treatment of

religious and nonreligious students alike as the centerpiece of its

school-aid Establishment Clause jurisprudence. For a brief time

in the 1970's, in a series of three cases, Committee for Public

Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973),

Meek v. Pittenger, 421 U.S. 349 (1975), and Wolman v.

Walter, 433 U.S. 229 (1977), the Court struck down several

school-aid measures on the premise that aid to the school as a

whole impermissibly advances the school’s religious mission.

That was the closest this Court has ever come to adopting a

“no-aid” principle applicable to religiously affiliated schools;

however, times have changed and so has this Court’s approach

to Establishment Clause adjudication. Sinee-then this Court has

retreated from that premise and cast doubt on any continuing

viability of those 1970's cases in a whole range of later cases,

beginning with Committee for Public Education and Religious

Liberty v. Regan, 444 U.S. 646 (1980), and culminating in

Agostini v. Felton, 521 U.S. 203 (1997) and Mitchell v. Helms,

530 U.S. 793 (2000).

In its recent Establishment Clause jurisprudence, this

Court has carefully delineated the appropriate criteria to be

considered in resolving challenges asserted under the

Establishment Clause to state educational programs that may

provide aid to private schools. Last term in Mitchell v. Helms,

530 U.S. 793 (2000), this Court rejected an Establishment

Clause challenge to a Louisiana program which channeled

federal funds for educational materials and equipment to

parochial schools. The Court reaffirmed the application of the

relevant Lemon criteria enunciated in Agostini v. Felton, 519

U.S. 203 (1997) for determination of Establishment Clause

challenges: 1) whether the program has a secular purpose; and

2) whether the program has the primary effect of advancing or

inhibiting religion.

| In Mitchell, Justice Thomas, in the plurality opinion,

focused on the neutrality of the program. The plurality found

that there is no Establishment Clause violation when educational

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

neither favor nor disfavor religion, and is made equally

available to both secular and religious beneficiaries on a

nondiscriminatory basis. See Mitcheli, 530 U.S. at 809.

Justice O’Connor, in her concurring opinion, recognized that

neutrality, while primary to the Establishment Clause analysis,

is one of several factors to consider. See id. at 839. Clearly,

however, both the plurality and the concurrence expressed

continued adherence to the modified framework set out in

Agostini. Ultimately, the plurality found that the Louisiana

program determined eligibility for aid neutrally , without regard

for the religious affiliations, or lack thereof, of the schools.

Finally, the Court found that aid was based on the private

choices of the parents and students as to which schools to

attend.

These same principles of neutrality are equally

applicable to the Ohio Pilot Project Scholarship Program.

Eligibility for schools in the Program is not dependent on

religious affiliations, or lack thereof, and participation is

determined by the schools themselves. Recipients of the

scholarships make their own independent and private choices

regarding both participation in the Program and choice of

schools. Participating schools must admit students on a

nondiscriminatory basis in accordance with the rules of the State

Superintendent. The scholarships are payable to the parents to

be used at the participating school selected by them. Clearly,

the Ohio Program has been crafted in accordance with the

criteria of this Court to have a neutral effect on religion.

The panel majority of the Sixth Circuit, however,

instead of following the Court’s carefully modified criteria

which was applied in Mitchell and Agostini, chose to go back to

the Court’s earlier decision in Committee for Public Education

and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and

mistakenly construed that decision as controlling. As pointed

out in Judge Ryan’s dissent in the panel opinion, even if the

Nyquist Establishment Clause analysis remains viable after 27

years and several decisions of this Court, the New York

program invalidated in Nyquist is distinguishable in all essential

respects both legally and factually from the Ohio Pilot Project

Scholarship Program.

First, the continued viability of the Nyquist analysis is

questionable. As Justice O’Connor stated in her concurring

opinion in Mitchell, “We also concluded in Agostini, however,

that the specific criteria used to determine whether government

aid has an impermissible effect had changed.” (emphasis

supplied) 521 U.S. at 223. Accordingly, the panel majority’s

overriding reliance on Nyquist, and their failure to consider

subsequent changes regarding the specific criteria to determine

this issue, undermines their analysis. Second, Nyquist is clearly

distinguishable. Nyquist involved a New York educational

assistance program the stated purpose of which was to provide

direct aid to both religious and nonreligious private schools

because their closing would force public schools to absorb their

students. The aid involved direct grants of state funds for

building maintenance and repair, tuition reimbursement for

some low-income parents whose children were already attending

private schools, and tax relief for parents of students already

attending private schools who were otherwise ineligible for

tuition reimbursement.

The Court has expressly recognized that government aid

that assists religious schools is not per se invalid. In Agostini

the Court upheld a City of New York program which allowed

public school teachers to provide remedial education in

parochial schools. The Court recognized that there cannot be

an absolute severance between church and religion and that

bringing a public school teacher into a parochial school is not

an unequivocal merger of church and State. 521 U.S. at 221.

In deciding this case the court modified the Lemon test,‘ to

define an Establishment Clause violation as one in which the

practice 1) results in government indoctrination, 2) defines its

recipients by religion, and 3) creates excessive entanglement.

521 U.S. at 234. The third prong is not at issue in this case.

As it did in Agostini and Mitchell, this Court again

confronts the question whether a generally available, religiously

neutral program of wholly secular governmental benefits

violates the Establishment Clause because a portion of the

benefits aid children attending religious schools. The answer to

that question, amici submits, is that it does not. The key to that

answer is this Court’s repeated and consistent declaration “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 because

sectarian institutions may also receive an attenuated financial

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

8 (1993). In contrast with these clearly enunciated principles,

the decision of the Sixth Circuit stands in stark conflict with

recent Establishment Clause jurisprudence of the Court.

Il. THE SIXTH CIRCUIT DECISION IS IN CONFLICT

WITH DECISIONS OF STATE COURTS OF LAST

RESORT.

Courts in Wisconsin, Arizona, and Ohio have examined

the issue of school choice and upheld the constitutionality of

these States’ programs. In Jackson v. Benson, 578 N.W.2d 602

(Wis. 1998), the Wisconsin Supreme Court held that the

Milwaukee Parental Choice Program allowing use of state

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

9

monies for private school education did not violate state or

federal constitutional establishment of religion provisions. In

the Milwaukee program, as in the Ohio program sub judice,

there are no restrictions once a scholarship is awarded as to

choice of school. Both programs allocate money directly to the

parents for endorsement to the school of their choice.’ In

Wisconsin, as in Ohio, the choice of institution is limited only

by registration in the program. All schools within a specified

geographical area, private or public, secular or sectarian, that

comply with secular education standards as well as anti-

discrimination, health and safety standards are eligible.° Thus,

the Ohio program facially meets the same constitutional

standards for religious neutrality and private choice that were

upheld by the Wisconsin Supreme Court and should be

adjudged in the same fashion.

The Arizona Supreme Court in Kotterman v. Killian,

972 P.2d 606 (Ariz. 1999) held that a tax credit for parents who

sent their children to private schools was not a violation of the

Establishment Clause. In Killian, the court found that the

program’s primary purpose was to provide education for

children, a valid secular goal. Although not specifically a

scholarship case, the Establishment Clause reasoning underlying

the Arizona program is clearly analogous to that underlying the

Ohio program. Both programs had a facially apparent secular

purpose evident in the statute governing the program. In the

Arizona case, the program was one designed to expand

educational options by “mak[ing] quality education available to

’ Wis. Stat. §119.23 (1993) provides that the “superintendent shall pay to

the parent or guardian of each pupil enrolled in a private school...” and

Ohio Stat. § 3313.979 provides that “each scholarship...to be used for

payments to a registered private school...is payable to the parents of the

student.”

© Wis. Stat. $119.23 and Ohio Stat. § 3313.976.

10

all children within the state.” /d. at 611. In the Ohio case, the

program was designed to promote educational availability

regardless of socioeconomic status. The court in Arizona

viewed Arizona’s program as serving a valid secular

purpose not in contravention with the Establishment Clause’ and

the legislative purpose behind Ohio’s statute is clearly in

agreement.

In the antecedent case in Ohio, Simmons-Harris v. Goff,

711 N.E.2d 203 (Ohio 1999), the Ohio Supreme Court held the

voucher statute invalid on procedural grounds. In dicta,

however, the court commented that the program did not violate

the Establishment Clause except as to a provision giving

scholarship priority to students whose parents belonged to a

specific religious group. /d. at 210. This provision, however,

the court asserted was severable thus not rendering the entire

program invalid on Establishment Clause grounds.* The Ohio

legislature removed that statutory language in the 1999 re-

enactment and in so doing has removed any previous issue in

Establishment Clause controversy and rendered the Ohio

legislation analogous to that upheld in Wisconsin and Arizona.

Pending litigation in Florida presents these same

questions. In 1999, the Florida Legislature enacted the Florida

Opportunity Scholarship Program which provides scholarships

4 The Arizona court cited Mueller v. Allen, 463 U.S. 388, 395 (1983)

asserting that “a state’s decision to defray the cost of educational expenses

incurred by parents regardless of the type of schools ...attend[ed]

evidences a purpose that is both secular and understandable.” (emphasis

added)

8 The Ohio court determined that the provision allowing discriminatory

selection was not so intertwined with the scope of the statute “as to make

it impossible to give effect to the apparent intention of the Legislature

if...stricken out.” 711 N.E.2d at 210.

11

to students attending failing schools. See Ch. 99-398, Laws of

Fla. The constitutionality of the Florida Program was

challenged on both state and federal grounds. See Bush v.

Holmes, 767 So. 2d 668 (Fla. 1* DCA 2000), rev. denied __

So. 2d __ (Fla. 2001). While the Florida Opportunity

Scholarship Program withstood a state constitutional challenge,

the federal Establishment Clause challenge is currently pending

on remand to the trial court.

Il. THIS CASE PRESENTS AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH THE COURT

SHOULD DECIDE SO THAT STATES MAY DEVELOP

AND ENACT VALID LEGISLATION WHICH MEETS

THEIR RESPONSiBILITIES TO PROVIDE A QUALITY

EDUCATION TO THEIR CHILDREN.

Congress acknowledges and “...reaffirms that the

responsibility for control of education is reserved to the States

and local school systems and other instrumentalities of the

States...” See 20 U.S.C. § 5899(b) (2000). Moreover, the

States each have their own separate constitutional

responsibilities to provide for the education of their ch_jdren.

See note 1 supra. In order to meet these responsibilities the

States must overcome a wide array of complex and challenging

problems including poor academic performance, student

discipline, teacher shortages, fiscal instability, and cultural

distinctions’, as well as complying with judicial oversight.'°

» See Department of Education, Education Reforms and Students at Risk ,

available at http://www .ed.gov/pubs/EdReformStudies/EdReforms;

Education Week on the Web, The Urban Challenge, (Jan.8, 1998), at

http://www .edweek.org/sreports/QC98.

“ See e.g., Anderson ex rel. Anderson v. Canton Mun. Separate Sch.

Dist., 232 F.3d 450 (5" Cir. 2000); Jenkins v. Missouri, 216 F.3d 720,

733 (8" Cir. 2000); Kelly Thompson Cochran, Beyond School Financing:

12

Development of innovative and meaningful educational

programs is essential to the States’ role in meeting these

challenges and providing a quality education to their children.

In our federalist system the States should, in the absence

of a clear constitutional violation, be encouraged to develop

innovative solutions to such complex problems and “...try novel

social and economic experiments...” Santosky v. Kramer, 455

U.S. 745, 773 (1982) (quoting New State Ice Co. v. Liebmann,

285 U.S. 262, 311 (1932) (Brandeis, J. dissenting)). In Florida,

as in other states, there is an ongoing legislative effort to

develop new and meaningful educational programs which meet

the changing needs of children in contemporary society by

affording educational opportunities in nontraditional, including

nonpublic, settings.

Despite a massive investment of public and private

resources, little progress has been made toward delivering

successful educational opportunities to certain populations of

children, and the vast majority of the children served by the

most inadequate public schools lack the financial resources to

exit the system. Some help is available through programs

offering private funding, but this is not the panacea for the

public school system. In Florida, for example, the Children’s

Scholarship Fund in Miami and Tampa Bay supports a total of

eight hundred children with average scholarships of $1,000 per

child. Children First America in Central Florida supports ninety

children and the Miami Inner City Angels provide funds for

forty children. Statewide these organizations and others provide

an average scholarship amount of $1,639 for a total outlay of

Defining the Constitutional Right to an Adequate Education, 78

N.C.L.Rev. 399 (2000).

13

$2,180,000 in private funding."

In Florida, as in other states, there is an ongoing effort

to develop new and meaningful educational programs to meet

these children’s needs. Florida is the first state to enact

Statewide voucher programs. The 1999 Opportunity

Scholarship Program (§ 229.0537, Fla. Stat.), which was

passed as part of a broader package of public education reforms

emphasizing standards and accountability (Chapter 99-398,

Laws of Florida), allows children in failing public schools

either to attend higher performing public schools or to attend

participating private schools at state expense. Under that

program, 58 children assigned to two failing Pensacola

elementary schools have received scholarships to attend private

schools and another 78 students are using the program to go to

better public schools.

Florida has initiated programs dedicated to students with

disabilities as well. The 2001 John McKay Scholarships for

Students with Disabilities Program (§ 229.05371, Fla. Stat.,

Ch. 2001-82, Laws of Fla.) started in 1999 as a pilot program

and is now available statewide for public school students with

disabilities for whom an individual education plan has been

written whose parent is dissatisfied with the student’s progress.

Nine hundred and eighty students were able to take advantage

of this program last year and that number is expected to reach

2,000-3,000 for the next school year."? These statistics clearly

demonstrate that a need exists for the flexibility inherent in a

variety of school choice programs. Additionally, the 2001

Florida Legislature created a corporate income tax credit for

|! patrick J. Heffernan, Ph.D., President, Floridians for School Choice

at http://www. floridachild.org.

12 see generally http://www opportunityschools.org outlining the

programs available in Florida.

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corporations that wish to make monetary donations to nonprofit

scholarship funding organizations established to provide

scholarships to students from families that meet the income

eligibility guidelines for free or reduced price lunch meals under

the National School Lunch Act. H.B. 21, Fla. Leg. (2001)

(awaiting signature by the Governor).

Although it is too early to assess the effect of these new

programs on students choosing to attend new schools, it is

already clear that the 1999 Opportunity Scholarship Program is

spurring badly needed efforts to improve student performance

in Florida’s public schools.'’ Many public schools lengthened

the school year, provided after school and Saturday tutorials,

and devoted greater time to reading, writing, and mathematics.

The school performance grades for the 2000-01 school year

reflect that no school in the state has a failing grade."

While the contours of the various States’ school choice

programs differ, they tend to share certain features: (1) funds

are placed at the disposal of parents in the form of vouchers,

scholarships, or tax credits; (2) private schools are added to the

range of educational options; and (3) aid is targeted to students

who are economically disadvantaged, disabled students whose

parents are not satisfied with their progress, and/or students

trapped in failing public schools.

13 see ¢.g., Caroline Hoxby, Choice Evidence, WSJ, (Jun. 7, 2001), at

http:// www.WSJ.com; Carol Innerst, Competing to Win: How Florida's

A+ Plan has Triggered Public Schooi Reform, (Apr. 2000), The Center

for Education Reform at hitp://www_.edreform.com/school_choice/

compete. htm; Jay P. Greene, An Evaluation of the Florida A +

Accountability and School Choice Program, (Feb. 2001), Manhattan

Institute for Policy Research at http://www _.manhattan-institute.

org/html/cr_aplus.htm.

'4 Florida Department of Education 2000-2001 School Accountability

Report at http://www.firn.edu/doe/schoolgrades.

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These programs hold promise both for enhancing the

quality of education received by the children who exercise

alternative options and for stimulating public school reform that

benefits all the other children. The demand for educational

options is overwhelming.'* Today, millions of children are

consigned to public schools that are not providing them with a

good education."* Fortunately, school choice programs are

giving thousands of children the opportunity to receive a better

education and are forcing systemic public school reform. Amici.

ask this Court to take care not to displace the children in these

existing programs and not to jeopardize the potential for other

efforts so that more of our children have access to enhanced

'S Florida has a myriad of education resources in addition to the OSP

and Scholarships for Children with Disabilities. Bright Futures

Scholarships, Charter Schools, and College Reach-out Programs are just a

sample of the variety available in Florida and these programs demonstrate

how flexible options can work to provide education for all students. See

http://www. floridachild.org.

16 Education Week on the Web provides an interesting statistical analysis

of factors affecting education in urban America including, but not limited

to, family history, financial status, teacher qualifications, and class size.

See http://www .edweek.org/sreports/qc98/challenges/tables/ta-n. htm.

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——=— ltl

CONCLUSION

Continued federal constitutional challenges to the

validity of innovative state educational programs and the

uncertainties resulting from conflicting Establishment Clause

jurisprudence undermine the stability of the educational

progress of children participating in such programs. The amici

States urge the Court to grant Ohio’s Petition and resolve this

important federal issue.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General of Florida

By and Through

THOMAS E. WARNER

Solicitor General of Florida

RICHARD A. HIXSON

Deputy Solicitor General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

(850) 414-3681

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