# Amicus Curiae Brief — Zelman v. Simmons-Harris

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0466%3A18

## Record

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

## Text

: 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.

14

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.

15

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.

16

——=— 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

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0466%3A18. Public record. Not legal advice.