Amicus Curiae Brief — Zelman v. Simmons-Harris

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(40) FIL

No. 00-1751 NOV 9

In the

SUPREME COURT OF THE UNITED ST acs

SUSAN TAVE ZELMAN, SUPERINTENDENT OF PUBLIC

INSTRUCTION, ET AL.,

PETITIONERS,

Vv.

DORIS SIMMONS-HARRIS, ET AL.,

RESPONDENTS

On Writ of Certiorari to the

United States Court of Appeals

For The Sixth Circuit

BRIEF OF THE STATES OF FLORIDA,

ALABAMA, DELAWARE, NEBRASKA,

PENNSYLVANIA, SOUTH CAROLINA AND

VIRGINIA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

ROBERT A. BUTTERWORTH

Attorney General of Florida

THOMAS E. WARNER

Solicitor General of Florida

Counsel of Record

MATTHEW J. CONIGLIARO

Deputy Solicitor General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

(850) 414-3681

(Additional Counsel! Listed On Inside Cover)

BILL PRYOR D. MICHAEL FISHER

Attorney General of Alabama Attorney General of Pennsy lvania

11 S. Union St. 16th Floor, Strawberry Square

Montgomery, AL 36130 Harrisburg, PA 17120

M. JANE BRADY CHARLES M. CONDON

Attorney General Attorney General of South

State of Delaware Carolina

820 N. French Street P.O. Box 11549

Wilmington, DE 19801 Columbia, SC 29211

DON STENBERG RANDOLPH A. BEALES

Attorney General of Nebraska Attorney General of Virginia

2115 State Capitol 900 E. Main St.

Lincoln, NE 68509 Richmond, VA 23219

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT ............ 6.50 c ee eeees 2

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I. THE ESTABLISHMENT CLAUSE DOES NOT

PROHIBIT STATES FROM IMPROVING AILING

SCHOOL SYSTEMS THROUGH RELIGIOUSLY

NEUTRAL, ALTERNATIVE SCHOOL CHOICE

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-. THE PURPOSE AND INTENDED EFFECT

OF ALTERNATIVE SCHOOL CHOICE

PROGRAMS ARE TO CORRECT

PROBLEMS IN PUBLIC SCHOOLS. ..... 6

B. THE ESTABLISHMENT CLAUSE PERMITS

PARENTS TO DIRECT EDUCATIONAL

AID TO SECTARIAN OR NONSECTARIAN

SCHOOLS THROUGH RELIGIOUSLY

NEUTRAL EDUCATION PROGRAMS... . 9

THE USE OF RELIGIOUSLY NEUTRAL

CRITERIA TO IDENTIFY ALTERNATIVE

SCHOOLS DOES NOT VIOLATE THE

ESTABLISHMENT CLAUSE UNLESS THE

CRITERIA ARBITRARILY OR INTENTIONALLY

DISCOURAGE NONSECTARIAN SCHOOLS’

PARTICIPATION IN THE PROGRAMS. ....... li

A. OHIO’S TUITION LIMITATION DOES NOT

ADVANCE RELIGION BECAUSE IT HAS

NOT BEEN SHOWN TO BE ARBITRARY

OR INTENTIONALLY DISCOURAGE

NONSECTARIAN SCHOOLS’

PARTICIPATION IN THE PROGRAM. .. 12

B. NEITHER THE PERCENTAGE OF

PARTICIPATING SECTARIAN SCHOOLS

NOR THE PERCENTAGE OF STUDENTS

SELECTING SECTARIAN SCHOOLS

SHOULD BE CONSTITUTIONALLY

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TABLE OF AUTHORITIES

CASES

Agostini v. Felton, 521 U.S. 203 (1997) ............... 18

Committee for Public Education and Religious

Liberty v. Nyquist, 413 U.S. 756 (1973) ........... 2, 8-9

Mueller v. Allen, 463 U.S. 388 (1983) ....... 3, 5, 9-10, 18

Simmons-Harris v. Zelman,

234 F.2d 945 (6th Cir. 2000) ...........0- 22 ce eee 1,12

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

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Zobrest v. Catalina Foothills Sch. Dist.,

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STATUTES

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STATE CONSTITUTIONS

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Neb. Const. Art 7, § 1

N.J. Const. Art 8, § 4

N.C. Const. Art 9, § 1

Ohio Const. Art 6, § 2

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OTHER AUTHORITIES

Jay P. Greene, An Evaluation of the Florida

A-Plus Accountability and School Choice Program

(Feb. 2001), available at http://www.ksg.harvard.edu/

pepg/pdf/Florida%20A+.pdf. .......... 6c cece eee eee 8

Carol Innerst, Competing to Win: How Florida’s

A+ Plan Has Triggered Public School Reform

(Apr. 2000), available at http://www.edreform.com/

school_choice/compete.hitm. ...........0.00e eee eeeee 8

Private School Universe Survey: 1999-2000,

U.S. Department of Education, Office of Educational

Research and Improvement, National Center

for Educational Statistics, Doc. No. NCES 2001-330

(Aug. 2001), available at http://nces.ed.gov/surveys

GES 06h. 64ccevinndedebnesedédebeabacstte sex 15-17

INTEREST OF THE AMICI

The amici are States that take seriously their

constitutional responsibilities to educate children. Various crises

have created the need, and a demand, for substantial

improvements in the quality of state-supplied education, and one

effective solution being implemented or considered by some

amici is the alternative school choice program. These programs

provide the parents of public school students the opportunity to

send their children to alternative schools, including, at the option

of individual parents, religious schools.

The Sixth Circuit’s decision in Simmons-Harris v.

Zelman, 234 F.2d 945 (6th Cir. 2000), threatens to undermine the

constitutional legitimacy of these initiatives and embroil States’

public school systems in extensive litigation regarding these

programs. That decision should be reversed.

Through this brief, the amici will attempt to offer the

Court their unique perspective on alternative school choice

programs, explaining why state legislatures have deemed them

important tools to improve the quality of public school education

and the educations of current public school students. The amici

will also discuss the factors the Sixth Circuit relied upon in

declaring the Ohio program unconstitutional and show that those

factors do not support the circuit court’s decision.

Ultimately, the amici urge the Court to reverse the Sixth

Circuit’s decision and confirm that these initiatives satisfy the

requirements of the Establishment Clause. The amici also ask

that, at a minimum, the Court provide much needed guidance

regarding how alternative school choice programs may be

constitutionally implemented to achieve their goal of correcting

problems in public schools while educating public school

children.

SUMMARY OF ARGUMENT

Consistent with the well-recognized notion that an

educated populace is essential to the Nation’s success, States

have undertaken to educate children through public schools.

Where problems in those schools undermine their educational

purpose, and the common solution of simply increasing public

school spending has proven ineffective, States have sought a

solution in alternative school choice programs.

Alternative school choice programs can take on many

forms and address any of numerous potential problems. For

instance, Florida grades each public school and permits students

who attend certain “failing” schools the opportunity to attend

higher performing public schools or participating private

schools, whether sectarian or nonsectarian. Florida’s program

thus focuses on individual “failing” schools. Ohio’s program

focuses on school districts placed under state supervision by

federal courts.

Regardless of their form, the purpose and intended effect

of these programs are to correct public schools’ deficiencies.

This is done by encouraging public schools to improve and,

concomitantly, offering alternative educational opportunities to

the students who are being disserved by their generally assigned

public schools. Recent studies have shown these programs to be

successful.

Accordingly, the Sixth Circuit erred in analogizing the

Ohio alternative school choice program to the New York school

aid program at issue in Committee for Public Education and

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

York program provided tuition to students in both sectarian and

nonsectarian private schools in order to keep students enrolled in

those schools, while alternative school choice programs seek to

improve public schools and, in the meantime, to give parents the

option of sending their children to public or private schools.

Rather than Nyquist, the Sixth Circuit should have relied

on this Court’s well-established case law holding that

government funds may constitutionally be used to enroll in

sectarian institutions where private individuals chose to direct

those funds through otherwise religiously neutral government

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

(1993) (upholding a federal program that supplied an interpreter

for a deaf child attending a sectarian school); Witters v.

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

(upholding a state vocational rehabilitation program that funded

a disabled student’s religious education at a private Christian

college); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a

state law permitting parents tax deductions for certain expenses

incurred in sending children to sectarian schools). These cases

confirm that the basic structure of alternative school choice

programs is constitutionally sound.

The Sixth Circuit distinguished Mueller and its progeny

from the instant case by holding that the Ohio program fails to

give students a meaningful choice of alternative schools and thus

promotes religion by coercing students to enroll in sectarian

schools. The court offered two bases for that conclusion: the

Ohio program’s $2500 limitation on tuition that private schools

may charge participating students, and the court’s observations

that 82 percent of the participating schools were sectarian and

approximately 96 percent of participating students attended

sectarian schools. Neither of these bases supported the court’s

conclusion.

First, the tuition limitation fails to show that the Ohio

program promotes religion. The Sixth Circuit assumed that any

tuition limitation favors sectarian schools because sectarian

schools supposedly have lower tuition rates. Nothing in the

record supports that generalization, and, more importantly, even

if that generalization were appropriate in the case of Cleveland's

private schools, the Sixth Circuit made no finding whatsoever

that the Ohio legislature adopted that provision arbitrarily or

intentionally to discourage participation in the program by

nonsectarian schools. Nothing short of such proof should suffice

before a court may declare that a tuition limitation, implemented

in the course of an otherwise religiously neutral, private choice-

based alternative school choice program, has the purpose or

primary effect of promoting religion. States require latitude to

examine the particular conditions of their public and private

school markets and to set such limitations in accordance with

those conditions.

Further, the Sixth Circuit misplaced its reliance on

Statistical evidence showing how many of the schools

participating in the Ohio program were sectarian and how many

of the participating students chose to attend sectarian schools.

States have no control whatsoever regarding the makeup of the

private school market, which, as the information detailed infra

demonstrates, varies considerably between and within States.

Nor do States have any control over the decisions regarding

participation made by private schools or individual parents. The

constitutionality of an otherwise religiously neutral alternative

school choice program should not turn on the result of such

private decision-making, and, standing alone, statistical evidence

regarding what schools chose to participate in the program and

what choices parents and students make should not be

constitutionally relevant.

ARGUMENT

I. THE ESTABLISHMENT CLAUSE DOES NOT

PROHIBIT STATES FROM IMPROVING

AILING SCHOOL SYSTEMS THROUGH

RELIGIOUSLY NEUTRAL, ALTERNATIVE

SCHOOL CHOICE PROGRAMS.

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

is essential to the political and economic health of any

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

Not surprisingly, then, each State is obliged by its constitution to

educate children. '

Where a State’s educational mission is hindered by

problems in its public school system, that State holds a

responsibility to its citizens, and to its students in particular, to

identify and correct those problems. The Ohio alternative school

' 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, N.J. Const. Art 8, § 4,

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. Const. Art 8, § 2, Pa. Const. Art 3, § 14, 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, Was: Const. Art 9, § 1,

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

1, § 23.

choice program represents Ohio’s attempt to fulfill that

responsibility.

The Sixth Circuit’s decision below misinterpreted the

purpose and primary effect of Ohio’s alternative school] choice

program and misapplied the Establishment Clause, relying upon

suppositions and considerations that have no place in

Establishment Clause analysis. States must devise effective

responses to crises facing their public schools, and, contrary to

the Sixth Circuit’s decision, the Constitution does not prohibit

States from adopting religiously neutral alternative school choice

programs.

A. |THEPURPOSE AND INTENDED EFFECT

OF ALTERNATIVE SCHOOL CHOICE

PROGRAMS ARE TO CORRECT

PROBLEMS IN PUBLIC SCHOOLS.

Alternative school choice programs represent a response

by States to critical and substantial problems facing the quality

of public school systems and the education they provide. Such

problems have long resisted correction by a mere influx of,

additional public monies, and they directly impede, if not

undermine, States’ education efforts and responsibilities.

In Florida, for instance, each public school is graded

annually along the traditional “A” through “F” range, and

students who attend public schools receiving a failing grade

— “F” — twice in a four-year period are offered the opportunity to

attend higher performing public schools or qualified private

schools. Fla. Stat. § 229.0537 (2001). Florida therefore directs

its alternative school choice program at individual failing public

schools. By comparison, the Ohio Program now under review

provides alternative school choice options to students enrolled in

any school district that, by federal court order, has been placed

under the supervision and management of Ohio’s Superintendent

of Public Instruction. Thus, Ohio directs its alternative school

choice program at students attending schools in districts where a

—-

——

federal court has found local control to be sufficiently ineffective

to warrant state supervision.

Alternative school choice programs may be used to

address a myriad of problems, including poor test scores, poor

graduation rates, overcrowding, and poor services for students

with disabilities. However, regardless of the situation addressed

by a particular program, alternative school choice programs focus

squarely on correcting an identified deficiency in the public

school system and, at the same time, supplying alternative

educational opportunities to the students who are being disserved

by that system.

By design, the latter goal supports the former. A

student’s selection of an alternative school results in a

reallocation, partial or whole, of public monies that would

ordinarily be used to finance that student’s education in the

public school he or she would otherwise attend. That

reallocation, and even its mere threat, encourages local public

school systems to correct whatever deficiencies triggered or may

trigger implementation of an alternative school choice program.

Other incentives may operate as well. For example,

Florida’s system of grading individual schools is meant to create

an objective, easily understood spectrum along which a school’s

performance may be judged by educators, administrators, and the

public alike. No school finds a source of pride in being labeled

an “F’” school or, for that matter, a “D” school. The incentive of

competition for grades among public schools, and the

considerable stigma attached to low or failing grades, may spur

poor schools to improve their quality and thus their grades.

From the States’ perspective, the critical point regarding

alternative school choice programs is that they succeed. For

example, following the Florida legislature’s 1999 adoption of

Governor Jeb Bush’s A+ Plan for Education, which includes

Florida’s Opportunity Scholarship Program, two reports, the

most recent of which was commissioned by Florida’s Department

of Education, confirmed that Florida’s alternative school choice

program had, in fact, begun to improve the performance of the

state’s public schools. Jay P. Greene, An Evaluation of the

Florida A-Plus Accountability and School Choice Program (Feb.

2001); Carol Innerst, Competing to Win: How Florida’s A+ Plan

Has Triggered Public School Reform (Apr. 2000).” Such reports

and studies provide strong support for the potential of alternative

school choice programs to foster substantial and sorely needed

improvements in our Nation’s public schools.

The amici believe that alternative school choice programs

represent an important tool by which state legislatures may meet

citizens’ demands to improve poorly performing public school

systems. Neither the advancement of religion nor its inhibition

has any place in the motivation behind such programs, as their

focus lies squarely on the States’ public schools and the students

they serve.

In this respect, the Sixth Circuit’s reliance on Committee

for Public Education and Religious Liberty v. Nyquist, 413 U.S.

756 (1973), was wholly misplaced. There, this Court rejected a

New York program designed to aid financially ailing private

schools by, among other things, granting all private school

students a fixed amount of money to use towards tuition. The

clear purpose and intended effect of that program were to provide

financial aid not only to New York’s nonsectarian private schools

but to its sectarian private schools — in order to keep all of those

schools in operation.

Alternative school choice programs, by comparison, do

not reflect any legislative effort to perpetuate the existence of

fiscally unsound sectarian or nonsectarian schools. Alternative

school choice programs seek to correct deficiencies in public

schools. Accordingly, the Sixth Circuit erred in failing to

? A copy of the Greene report may be found on the Internet

at http://www.ksg.harvard.edu/pepg/pdf/Florida%20A+.pdf. A

copy of the Innerst report may be found at http://www.edreform.

com/school_choice/compete.htm.

recognize the critical distinction between alternative school

choice programs and programs that specifically seek out and

support ailing religious institutions, such as the New York

program at issue in Nyquist. That case should simply be

inapposite here.

B. THE ESTABLISHMENT CLAUSE

PERMITS PARENTS TO DIRECT

EDUCATIONAL AID TO SECTARIAN OR

NONSECTARIAN SCHOOLS THROUGH

RELIGIOUSLY NEUTRAL EDUCATION

PROGRAMS.

Rather than Nyquist, the Sixth Circuit should have

focused its attention on a well-established line of Supreme Court

cases holding that the use of public funds to finance religious

educations does not contravene the Establishment Clause where

that use results from the private choices of individuals in the

context of a religiously neutral government program. For

example, in Mueller v. Allen, 463 U.S. 388 (1983), the Court

approved, on Establishment Clause grounds, a Minnesota tax law

that permitted parents to deduct their children’s education

expenses, including religious school tuition, textbooks and

transportation. The Court held that no “imprimatur of State

approval” exists where public funds reach sectarian schools only

as a result of individual parents’ decisions regarding where to

educate their children. Jd. at 399 (quoting Widmar v. Vincent,

454 U.S. 263, 274 (1981)).

The Court subsequently held that a state vocational

rehabilitation program would not violate the Establish Clause by

providing financial assistance to a disabled student who chose to

use his aid monies to attend a private Christian college and study

to be a religious pastor, missionary, or youth director. Witters v.

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

The Court observed that the program could aid religious

institutions “only as a result of the genuinely independent and

private choices of aid recipients.” Id. at 488.

Similarly, in Zobrest v. Catalina Foothills School

* District, 509 U.S. 1 (1993), the Court held that the Establishment

Clause did not prohibit federal funds from being used to provide

an interpreter in school for a deaf student where the student chose

to attend a Catholic high school. The Court explained that where

government offers a neutral service as part of a program that “is

in no way skewed towards religion,” then the provision of that

service does not violate the Establishment Clause.

As with the aid programs at issue in these cases, no

principled reason suggests that alternative school choice

programs cannot survive Establishment Clause scrutiny. To the

contrary, Mueller, Witters, and Zobrest demonstrate that the

choice format utilized by alternative school choice programs

satisfies the constitutional proscription against state-sponsored

religious indoctrination. Parents may chose to send their children

to their generally assigned public schools, or parents may opt to

send their children to one of whichever public or private schools

participate in the alternative school choice program. The

existence of sectarian or nonsectarian schools in the particular

private school market impacted by the alternative school choice

program, the participation of those schools in the program, and

students’ enrollment in those schools are the results of private

actors’ decisions, unattributable to any State. Under these

circumstances, constitutionally sufficient neutrality and private

choice separate the State from any religious istitution that

ultimately receives public aid.

It bears emphasis at this point that the breadth of options

available to parents can vary from program to program. For

instance, while Ohio permits public schools in neighboring

districts to elect whether to participate in the alternative school

choice program, Florida directs that parents of children in failing

schools may send their children not only to qualified private

schools that opt to participate in the program but to public

schools in the same district that received at least a “C” grade or,

space permitting, an adjacent district’s public schools that graded

higher than the students’ assigned schools. Fla. Stat.

§ 229.0537(3).

Thus, as in Florida, the public school alternatives

available to parents may extend to include schools other than a

student’s generally assigned public school. In Ohio, by

comparison, where these programs are run on a district-wide

basis, students may attend public schools in other districts only

where those schools elect to participate in the program. The

characteristics of different States’ programs should be expected

to reflect the unique dynamics of the States’ education systems,

including the many different balances struck between state and

local control of public education.

In sum, while individual State legislatures may tailor

alternative school choice programs to meet their States’ particular

needs, the general format of alternative school choice programs

is based on well established principles of neutrality and private

choice. Consequently, the basic nature of such programs is

wholly consistent with, and does not contravene, the

Establishment Clause.

Il THE USE OF RELIGIOUSLY NEUTRAL

CRITERIA TO IDENTIFY ALTERNATIVE

SCHOOLS DOES NOT VIOLATE THE

ESTABLISHMENT CLAUSE UNLESS THE

CRITERIA ARBITRARILY OR

INTENTIONALLY DISCOURAGE

NONSECTARIAN SCHOOLS’

PARTICIPATION IN THE PROGRAMS.

In examining Ohio’s aliernative school program, the Sixth

Circuit held that, despite the program’s facial neutrality with

regard to sectarian schools, the program is not, in fact, religiously

neutral because it discourages participation by schools not funded

by religious institutions. Therefore, the Sixth Circuit found, the

Ohio program has the impermissible effect of promoting

This Court should reject the circuit court’s supposedly “as

applied” examination, which was based on supposition and

constitutionally irrelevant observations, and reverse the decision

velow. The Court should confirm that, where neutral criteria are

used to define a pool of eligible alternative schools, the

Establishment Clause is not violated absent a showing that the

program arbitrarily or intentionally discourages participation by

nonsectarian schools. The Court should also confirm that,

standing alone, the percentage of sectarian schools participating

in an otherwise religiously neutral program, and the percentage

of participating children who chose to attend sectarian schools,

are not relevant to the constitutional analysis.

A. OHIO’S TUITION LIMITATION DOES

NOT ADVANCE RELIGION BECAUSE IT

HAS NOT BEEN SHOWN TO BE

ARBITRARY OR INTENTIONALLY

DISCOURAGE NONSECTARIAN

SCHOOLS’ PARTICIPATION IN THE

PROGRAM.

The first basis offered by the Sixth Circuit to support its

conclusion that nonsectarian schools are discouraged from

participating in Ohio’s alternative school choice program is the

Ohio legislature’s decision to place a $2500 limit on the tuition

that private schools may charge participating students, of which

the program’s scholarship will fund either 90 or 75 percent,

depending on various circumstances. The court concluded that

this limitation served to discourage participation from schools not

funded by religious organizations because “religious schools

often have lower overhead costs, supplemental income from

private donations, and consequently lower tuition needs.” 234

F.3d at 959. As Judge Ryan pointed out in his partial dissent, the

court’s conclusion was entirely unsupported.

Simply put, nothing in the record shows that the tuition

limitation has arbitrarily discouraged participation by any

nonsectarian school or that the Ohio legislature selected the

$2500 figure with the intent of discouraging nonsectarian schools

from participating in the alternative school choice program. In

fact, nothing in the record before this Court shows that the tuition

limitation has discouraged nonsectarian schools at all from

participating in the Ohio program.

Common sense likewise offers no support for the Sixth

Circuit’s supposition. Even assuming arguendo that all or most

sectarian schools are subsidized — an unsupported assumption —

no basis exists to presume that nonsectarian schools are not also

subsidized, whether through endowments or private grant

programs. Perhaps more importantly, there is no basis to

presume that the Ohio legislature did not take all of these

considerations into account when setting the tuition limitation for

participating private schools.

In point of fact, levels of public school funding and

private school tuition, as well as whether sectarian schools in a

given area are more or less subsidized than their nonsectarian

counterparts, are local issues that deserve localized attention by

individual State legislatures. In crafting alternative school choice

programs, States should not be constitutionally prohibited from

examining their particular circumstances and, where deemed

appropriate, setting tuition limitations that are less than or equal

to the amount that would otherwise be spent on children’s public

edcation, so long as such limitations do not arbitrarily or

intentionally discourage participation by nonsectarian schools.

This Court should not presume that, in setting a tuition

level, a State legislature acted with an unconstitutional motive.

Nor should this Court simply presume that a tuition limitation

arbitrarily discourages nonsectarian schools from an otherwise

religiously neutral alternative school choice program. Rather, the

Court should require that, to declare an alternative school choice

program infirm under the Establishment Clause due to a tuition

limitation, a court must find that the limitation arbitrarily or

intentionally discourages participation by nonsectarian schools.

Absent such proof, no basis exists for a reasonable person to

believe that the State has set out to sponsor the religious

indoctrination of students, and the program cannot be said to

have either the purpose or primary effect of promoting religion.

The respondents made no showing whatsoever either that

the Ohio program’s tuition limitation arbitrarily discourages

nonsectarian schools’ participation or that the Ohio legislature

adopted the limitation to discourage their participation. Nor did

the district court or the circuit court make any such findings.

Accordingly, this Court should reject the Sixth Circuit's

erroneous and unfounded conclusion that the Ohio program’s

tuition limitation unconstitutionally advances religion.

B. NEITHER THE PERCENTAGE OF

PARTICIPATING SECTARIAN SCHOOLS

NOR THE PERCENTAGE OF STUDENTS

SELECTING SECTARIAN SCHOOLS

SHOULD BE CONSTITUTIONALLY

RELEVANT.

The second basis offered by the Sixth Circuit for its

conclusion that the Ohio alternative school choice program

discouraged participation from nonsectarian schools was the high

percentage of participating schools that were sectarian

— specifically, 82 percent — and the high percentage of students

utilizing the program who elected to enroll in sectarian schools

— approximately 96 percent. Both of these factors are beyond the

control of Ohio, and neither should be constitutionally relevant,

let alone determinative, in Establishment Clause analysis.

According to data from a recent United States Department

of Education study released in August 2001, 78.4 percent of the

country’s 27,223 private elementary and secondary schools are

sectarian. The study also indicates that the distribution of

nonsectarian to sectarian schools is not consistent. Rather, it

varies across the nation, as shown by the following table:

335

3,832

418

Percentage Nonsectarian

28.24%

28.36%

36.72%

14.67%

4: 88%

41.15%

42.64%

35.83%

50.60%

29.86%

27.89%

23.44%

27.27%

29.23%

16.94%

4.00%

8.45%

19.95%

18.71%

50.37%

36.55%

54.70%

13.64%

16.45%

29.03%

17.48%

23.91%

State Total Nonsectarian Sectarian Percentage Nonsectarian

NE 232 20 212 8.62%

NV 104 38 66 36.54%

NH 372 265 107 71.24%

NJ 1,006 341 665 33.90%

NM 208 87 121 41.83%

NY 2,010 493 1,517 24.53%

NC $09 129 380 25.34%

ND 54 7 47 12.96%

OH 1,051 200 851 19.03%

OK 168 28 140 16.67%

OR 376 132 J44 35.11%

PA 2,238 592 1,646 26.45%

RI 168 94 74 55.95%

SC 387 97 290 25.06%

SD 77 10 67 12.99%

TN 479 128 351 26.72%

TX 1,318 296 1,022 22.46%

UT 100 59 41 59.00%

VT 122 80 42 65.57%

VA 606 232 374 38.28%

WA 482 149 333 30.91%

wv 130 18 112 13.85%

wi 975 112 863 11.49%

wy 41 9 32 21.95%

Source: Private School Universe Survey: 1999-2000, U.S. Department of Education,

Office of Educational Research and Improvement, National Center for Educational

Statistics, Doc. No. NCES 2001-330 (Aug. 2001), available at

http://nces.ed.gov/surveys/pss/ and searchable through “Private School Locator” at

http://nces.ed. gov/surveys/pss/locator/locator.asp.

Thus, while over 90 percent of private schools in lowa,

Kansas, and Nebraska are sectarian, that figure drops to less than

50 percent in Maine, Massachusetts, New ‘Hampshire, Rhode

Island, Utah and Vermont. The lowest percentage of sectarian

schools is found in New Hampshire, where only 28.76 percent of

the private schools are sectarian.

Similar variations can be seen on a local level. For

example, Florida’s most recent data show that while 66.58

percent of Florida’s private schools are sectarian, the percentages

of sectarian to nonsectarian private schools within Florida’s 67

school districts, each of which is countywide, vary from zero to

100 percent.

These observations compel two conclusions. First, the

fact that 82 percent of the schools participating in the Ohio

program were sectarian did not show, as the Sixth Circuit

concluded, that the program discouraged participation by

nonsectarian schools. To the contrary, the Ohio program appears

to have captured a remarkably fair cross-section of the state’s

private schools, as the U.S. Department of Education survey

shows that 80.97 percent of Ohio’s private schools are sectarian.

Second, none of these figures, standing alone, should hold

constitutional significance in the context of alternative school

choice programs. Decisions regarding whether to open and

maintain a private school, sectarian or otherwise, are made by

private actors based on a plethora of factors, all of which are

beyond any State’s control. The net result of such private,

independent decisions should not, as a matter of constitutional

law, preclude States from employing an alternative school choice

program in one locale while permitting States to employ the

identical program in another. Otherwise, a program could be

constitutional in New Hampshire, because of its largely

nonsectarian private school market, but unconstitutional in Ohio,

where the percentage of sectarian schools is more than twice as

high. The Establishment Clause should not be so fickle.

Nor should a particular program’s constitutionality turn

on the extent to which private schools elect to participate in an

alternative school choice program or the extent to which parents

who choose to participate select sectarian or nonsectarian schools

for their children. This Court has previously refused to consider

such factors in evaluating a program’s legitimacy under the

Establishment Clause. See Agostini v. Felton, 521 U.S. 203, 229

(1997) (“Nor are we willing to conclude that the constitutionality

of an aid program depends on the number of sectarian school

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

Mueller v. Allen, 463 U.S. 388, 401 (“We would be loath to adopt

a rule grounding the constitutionality of a facially neutral law on

annual reports reciting the extent to which various classes of

private citizens claimed benefits under the law.”).

These decisions, like those that produce the private school

market in a given area, are inherently private and unrelated to any

State actor. Whatever their results, which can be expected to

change from time to time in any given State or locale, any

religious indoctrination stemming from voluntary enrollment in

a sectarian private school through an alternative school choice

program cannot reasonably be attributed to governmental action.

Accordingly, the Sixth Circuit erred when it used the percentage

of sectarian schools in the Ohio program and the percentage of

participating students enrolled in such schools to conclude that

the Ohio program impermissibly advances religion.

CONCLUSION

Alternative school choice programs are a religiously

neutral means of improving deficiencies in States’ public school

systems. To the best of their abilities, States have attempted to

craft these programs not to produce governmental indoctrination

of religion but rather to permit private and independent choices

by parents to determine where their children receive their

education. The States’ goal is, ultimately, to educate children,

and to do so while neither advancing nor inhibiting religion.

The amici respectfully request this Court to reverse the

Sixth Circuit’s decision and to confirm the constitutional validity

of these programs. In all events, the amici request this Court to

provide much needed guidance on how alternative school choice

programs may be crafted in a manner that comports with the

Constitution and permits States to achieve their goal of educating