Amicus Curiae Brief — Zelman v. Simmons-Harris

gr ) Supreme Court, U.S.

(a) 4) ('3) FILED

No. 00-1751, No. 00-1777, No. 00-1779 | “WY 9 2am

IN THE ' CpWICS OF THR CLERK |

Supreme Court of the United States

SUSAN TAVE ZELMAN, et al., Petitioners,

V.

DorIs SIMMONS-HARRIS, et al., Respondents

HANNA PERKINS SCHOOL, et al., Petitioners,

Vv.

DORIS SIMMONS-HARRIS, et al., Respondents

SENEL TAYLOR, 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 AMERICAN CENTER FOR LAW

AND JUSTICE, INC. AND FOCUS ON THE FAMILY, INC.

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

CoLBY M. MAY JAY ALAN SEKULOW

VINCENT MCCARTHY Counsel of Record

WALTER M. WEBER JAMES M. HENDERSON, SR.

AMERICAN CENTERFORLAW AMERICAN CENTER FOR LAW

& JUSTICE & JUSTICE

1650 Diagonal Road 205 Third Street SE

Alexandria, VA 22314 Washington, DC 20003

(703) 740-1450 (202) 546-8890

Attorneys for Amici Curiae

pr

TABLE OF CONTENTS"

Page

ph FO rrr ili

a eer eee |

SUMMARY OF ARGUMENT .................00055 3

Wee heud eu ie endee eee enue seudenes 5

IN ACCORD WITH THIS COURT’S DECISION IN

AGOSTINI AND WITH THE CONCURRENCE BY

JUSTICE O’CONNOR IN MITCHELL, THE JUDGMENT

BELOW MUST BE REVERSED. .................. 5

A. The Ohio Voucher Program Is Governed By The

Scrutiny Called For by Justice O’Connor’s

Concurrence in Mitchell .................4... 5

B. The Ohio Voucher Program Satisfies the

Constitutional Standards of the Mitchell

Concurrence and Agostini ................... 8

1. The Ohio voucher program was not enacted for

the purpose of advancing religion. ............ 9

2. The Ohio voucher program does not have

the effect of advancing religion. .............. 9

a. The Ohio voucher program does not

result in government indoctrination of

i otis th Tier ete neu ad beh onee%o 9

b. The Ohio voucher program does not define

benefit recipients by reference to religion... . 13

c. The Ohio voucher program does not create

excessive entanglement between government

es +ecdueutectsuraveessete 14

*. This brief is filed with the consent of the parties. Letters

indicating the consent of counsel of record for the parties are being

filed together with this brief.

(i)

TABLE OF CONTENTS-—cont’d

Page

3. The Ohio voucher program does not endorse

POMIR .ncccccccccauasctseyeeeeeen 14

CUNCE AMIENS co ccccecnneccesesuueeuseen eee 17

(ii)

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ...... 5, 8, passim

Board of Educ. v. Grumet, 512 U.S. 687 (1994) ......... |

Board of Airport Comm'rs v. Jews for Jesus,

EE l

Bowen v. Kendrick, 487 U.S. 589 (1988) .......... 15, 16

Boy Scouts of America v. Dale, 530 U.S. 640 (2000) ..... ]

Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263 (1993) ......... Dulinalséleedbebes« l

Capitol Square Review & Advisory Bd. v. Pinette,

es cece wesccseceses l

Cruzan v. Director, Missouri Dep't of Health,

ed ie Cc eeeeserecceees 1

Denver Area Educ. Telcoms. Consortium v. FCC,

ee tees ces ce ee besooces l

Good News Club v. Milford Cent. Sch.,

es ones csccceséceeces 17

Gregg v. Georgia, 428 U.S. 153 (1976) ............... 6

International Soc'y for Krishna Consciousness v. Lee,

ECS l

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

ee es rece kceceeees 1,2

Lee v. ISKCON, 505 U.S. 672 (1992) ................. l

Lee v. Weisman, 505 U.S. 577 (1992) ................. l

Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994) .... 2

Marks v. United States, 428 U.S. 188 (1977) ........... 6

Mitchell v. Helms, 530 U.S. 793 (2000) ........ 5, passim

Mueller v. Allen, 463 U.S. 388 (1983) ............. 10, 12

(iii)

TABLE OF AUTHORITIES—cont’d

Page(s)

National Organization for Women v. Scheidler,

Se EE kodedeckauncdestuhewansehedal |

Natl. Interfaith Cable v. FCC, 512 U.S. 1230 (1994) ..... 2

Planned Parenthood v. Casey, 505 U.S. 833 (1992) Ore 2

Reno v. ACLU, 520 U.S. 1113 (1997) ..........2...... 2

Romer v. Evans, 517 U.S. 620 (1996) ................. 2

Rosenberger v. Rector & Visitors of the Univ. of Va.,

Se ED nb xkbedddnssbneess ciadakie 2,17

Rust v. Sullivan, 500 U.S. 173 (1991) ................. 2

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

gC ie ee apeee te 4, passim

Simmons-Harris v. Zelman,

72 F. Supp. 2d 834 (N.D. Ohio 1999) ............ 9,14

Troxel v. Granville, 530 U.S. 57 (2000) ............... 2

United States v. Kokinda, 497 U.S. 720 (1990) .......... l

Webster v. Reproductive Health Serv.,

I a ota 2

Westside Comm. Schools. v. Mergens,

Sy EE dk ceauunenes suns dukaddenan 1,17

Witters v. Washington Department of Services for the Blind,

See ee Ecc cencacédanceeens 10, 12, 15-16

Zobrest v. Catalina Foothills School Dist.,

Se es CUED Kocedetdecucuuineweootbcicaks 10

(iv)

INTEREST OF AMICI’

The American © for Law and Justice (ACLJ) is a

nonprofit public interest law firm and education organization

dedicated to protecting First Amendment freedoms, human life,

and the family. ACLJ attorneys have briefed and argued, or

presented the views of amici curiae, in numerous cases before

this Court on these issues.’

1. No counsel representing a party in this case authored this brief in

whole or in part, and no person or entity, other than amicus curiae

and its counsel, made a monetary contribution to the preparation and

submission of this brief.

2. Counsel for amici curiae have participated in the presentation of

numerous cases in this Court, including: Board of Airport Comm'rs

v. Jews for Jesus, 482 U.S. 569 (1987); Westside Community

Schools v. Mergens, 496 U.S. 226 (1990); Bray v. Alexandria

Women's Health Clinic, 506 U.S. 263 (1993) (42 U.S.C. § 1985(3));

Lamb 's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.

384 (1993) (Free Speech Clause); Lee v. ISKCON, 505 U.S. 672

(1992); National Organization for Women v. Scheidler, 510 U.S.

249 (1994) (18 U.S.C. §§ 1961-68); United States v. Kokinda, 497

U.S. 720 (1990) (Free Speech Clause and 39 C.F.R. § 232.1(h)(1)).

eats In addition, counsel for amici curiae have represented groups and

individuals as amici curiae in numerous cases, including: Board of

Educ. v. Grumet, 512 U.S. 687 (1994) (Establishment Clause); Boy

Scouts of America v. Dale, 530 U.S. 640 (2000) (First Amendment

Freedom of Association); Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753 (1995) (Free Speech and Establishment

Clauses); Cruzan v. Director, Missouri Dep't of Health, 497 U.S.

261 (1990) (Fourteenth Amendment); Denver Area Educ. Telcoms.

Consortium v. FCC, 518 U.S. 727 (1996) (Cable Television

Consumer Protection and Competition Act of 1992); Jnternatioral

Soc 'y for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) (Free

Speech Clause); Lee v. Weisman, 505 U.S. 577 (1992)

(1)

2

Focus on the Family is a California nonprofit religious

corporation committed to strengthening the family in the

United States and abroad. The president of Focus on the

Family, James C. Dobson, Ph.D., is a child psychologist who

has written extensively on child rearing and family relations.’

Dr. Dobson hosts and Focus on the Family distributes a daily

radio broadcast about family issues that reaches approximately

1.7 million listeners each day in the United States, Canada, and

around the world. Focus on the Family publishes and

distributes Focus on the Family magazine and other literature

that is received by more than 2 million households each month.

The proper resolution of this case is a matter of substantial

organizational concern to the American Center for Law and

(Establishment Clause); Madsen v. Women's Health Ctr., 512 U.S.

753 (1994) (Free Speech Clause); Natl. Interfaith Cable v. FCC, 512

U.S. 1230 (1994) (Establishment Clause and the Cable Television

Consumer Protection and Competition Act of 1992, §§ 4 and 5);

Planned Parenthood v. Casey, 505 U.S. 833 (1992) (Fourteenth

Amendment); Reno v. ACLU, 520 US. 1113 (1997)

(Communications Decency Act); Romer v. Evans, 517 U.S. 620

(1996) (Equal Protection Clause); Rosenberger v. Rector & Visitors

of the Univ. of Va., 515 U.S. 819 (1995) (Free Speech and

Establishment Clauses); Rust v. Sullivan, 500 U.S. 173 (1991) (42

U.S.C. §§ 300-300a-6 and 42 C.F.R. §§ 59.8-59.10); Troxel v.

Granville, 530 U.S. 57 (2000) (Fourteenth Amendment); Webster v.

_ Reproductive Health Serv., 492 U.S. 490 (1989) (Fourteenth

Amendment).

3. Dr. Dobson hosted a six-part film series, entitled “Turn Your

Heart Toward Home,” the display of which in a public school

facility was at issue in a prior decision of this Court. See Lamb's

Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 388

nn. 2-3 (1993).

3

Justice and to Focus on the Family because of their shared

commitment to American families. These amici recognize that

the primary responsibility for directing and controlling the

upbringing and education of children belongs to the parents and

guardians of those children. That responsibility is paired with

the right of parents to select the schools in which their children

will be educated. Choice in schooling is necessary for the right

to direct and control the education of a child to have any

substantive meaning. For that right to be meaningful, and so

that it may be maximized, it is entirely appropriate for the

States to establish appropriate mechanisms to assist parents in

obtaining a meaningful slate of choices in schooling for their

children.

In the view of these amici, the Ohio voucher program is an

appropriate means to the end of meaningful parental choice in

education. All that is done by a voucher system of the kind

enacted in Ohio is that the playing field begins to be leveled.

Ohio neither purposed to violate the Establishment Clause, nor

does the Ohio voucher program have the primary effect of

doing so, or of endorsing religion. Nonetheless, the appeals

court misinterpreted this Court’s Establishment Clause cases in

reaching the conclusion that the Ohio program was

unconstitutional. School voucher systems that facilitate

meaningful parental choice in schooling, through assistance in

funding those parental decisions, neither violate the

Establishment Clause nor contradict this Court’s jurisprudence

regarding the Clause.

SUMMARY OF ARGUMENT

The Cleveland school district suffered from such serious

mismanagement in providing an acceptable academic education

4

that it was taken from the control of local elected officials and

placed under the direct control of Ohio’s State Superintendent

of Public Instruction. See Simmons-Harris v. Zelman, 234 F.3d

945, 948 (6" Civ. 2000). Among those injured by that

mismanagement are the students attending Cleveland schools

whose families have such limited financial resources as to

make it virtually hopeless that some alternative to the failed

Cleveland schools will be available to them. Given the dire

circumstances of such students, and the crisis created by the

patterned mismanagement of a large urban school district, the

State of Ohio responded quite reasonably and thoughtfully.

Ohio enacted a pilot program of vouchers to allow the

children of low-income families in Cleveland to escape the

deprivations resulting from the district’s mismanagement.

Under the program now under consideration in this Court, ©

students and families can select from a list of participating

schools. Vouchers provided for under the program are sent to

the schools chosen by the families. In turn, the families go to

the schools and endorse the voucher to validate it. Schools

eligible to register for and participate in the program include

private schools — both secular and religious — located within the

Cleveland school district, and public schools in the school

districts adjacent to Cleveland.

In the face of this eminently reasonable response to a crisis

caused by a failed public schooling system, the Respondents

and the court below have asserted that the Ohio voucher

program has the primary effect of establishing religion because

it accomplishes an actual diversion of government funds to

private religious institutions. See Simmons-Harris v. Zelman,

234 F.3d 945, 960-61 (6" Cir. 2000). The Court of Appeals

purported to apply the reasoning of Justice O’Connor’s separate

5

concurrence in Mitchell v. Helms, 530 U.S. 793, 836 (2000)

(O’Connor, J, with Breyer, J., concurring in the judgment), see

Simmons-Harris, 234 F.3d at 958, which, in turn, adopts the

rationale in Agostini v. Felton, 521 U.S. 203 (1997). The court

below, however, failed to make the analysis called for in

Agostini and in Justice O’Connor’s Mitchell concurrence. Had

the court done so, it would have concluded that the Ohio

voucher program survives constitutional scrutiny under the

Establishment Clause.

First, the Respondents concede that the purpose for the

program is secular. Second, they also concede that there is no

- excessive entanglement with religion. Finally, as we explain

below, the primary effect of the Ohio voucher program is to

provide needed assistance to students doubly handicapped by

living in low-income circumstances and within the boundaries

of a failed school district. Although the court below found a

constitutional violation in this plan, this Court should reverse

the decision below and uphold the voucher program at issue

ARGUMENT

IN ACCORD WITH THIS COURT’S DECISION IN

AGOSTINI AND WITH THE CONCURRENCE BY

JUSTICE O’CONNOR IN MITCHELL, THE JUDGMENT

BELOW MUST BE REVERSED.

A. The Ohio Voucher Program Is Governed By The

Scrutiny Called For by Justice O’Connor’s

Concurrence in Mitchell

This Court has explained, “[w]hen a fragmented Court

decides a case and no single rationale explaining the result

enjoys the assent of five Justices, ‘the holding of the Court may

6

be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds.’” Marks

v. United States, 428 U.S. 188, 193 (1977) (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976)). In light of that

instruction, the appeals court decided the case below by

invoking the reasoning offered in the concurring opinion of

Justice O’Connor in Mitchell v. Helms, 530 U.S. 793, 836

(2000) (O’Connor, J, with Breyer, J., concurring in the

judgment). The court below looked to that opinion in Mitchell

because it was the concurrence of Justices O’Connor and

Breyer in the judgment, expressed in that concurring opinion,

that resulted in a decision by a majority of the Justices to

reverse the judgment in Mitchell. See Simmons-Harris v.

Zelman, 234 F.3d 945, 958 (6" Cir. 2000).

The problem, however, is that the court erred in its

application of the rationale offered by Justice O’Connor.

Tellingly, the panel below fails to bring to bear on this

controversy the principal points of analysis relied on by Justice

O’Connor in her_concurrence in Mitchell. But, because the

court below claimed that it was applying Justice O’Connor’s

methodology in deciding that the Ohio voucher program

violated the Establishment Clause, it is necessary to

demonstrate that the assertion is quite flawed.

In Mitchell v. Helms, Justice O’Connor rejected the

decisional approach taken by the plurality because, in Justice

O’Connor’s view, the plurality “announce[d] a rule of

unprecedented breadth for the evaluation of Establishment

Clause challenges to school-aid programs.” 530 U.S. at 837.

to Justice O’Connor, “[rjeduced to its essentials, the . . . rule

States that government aid to religious schools does not have

the effect of advancing religion so long as the aid is offered on

7

a neutral basis and the aid is secular in content.” Jd.

Particularly troubling to Justice O’ Connor were two features

of the plurality opinion. First, “the plurality’s treatment of

- neutrality comes close to assigning that factor singular

importance in the future adjudication of Establishment Clause

challenges to government school-aid programs.” Jd. Second,

“the plurality’s approval of actual diversion of government aid

to religious indoctrination is in tension with our precedents and,

in any event, unnecessary to decide the instant case.” Jd.

While it troubled her that the plurality adopted a near

absolute principle of neutrality as the sole test for

Establishment Clause sufficiency, Justice O’Connor

nonetheless acknowledged in Mitchell that “neutrality is an

important reason for upholding government-aid programs

against Establishment Clause challenges.” /d. (citing cases).

In addition, while the plurality expressed a willingness to

tolerate diversion of government school-aid to the religious

purposes of sectarian schools, Justice O’ Connor concluded that

the Court’s jurisprudence on this issue allowed for “some

government funding of secular functions performed by

sectarian organizations,” but “provide no precedent for the use

of public funds to finance religious activities.” Jd. at 840

(emphasis added). In Justice O’Connor’s view, the plurality

missed a salient feature of previous decisions in which aid may

have been diverted (or divertible), namely, that the aid went

directly to individuals, and only secondarily, as a result of the

individual choices of aid recipients, to private and religious

institutions. /d. at 841 (discussing cases).

Ultimately, Justice O’ Connor concluded that the proper rule

for decision in Mitchell was the one announced in Agostini v.

8

Felton, 521 U.S. 203, 222-23, 234, 235 (1997). In Agostini,

this Court highlighted the governing standards for deciding

Establishment Clause challenges to school-aid programs:

[T]he general principles we use to evaluate whether

government aid violates the Establishment Clause have

not changed . . . . [W]e continue to ask whether the

government acted with the purpose of advancing or

inhibiting religion, and the nature of that inquiry has

remained largely unchanged. Likewise, we continue to

explore whether the aid has the ‘effect’ of advancing or

inhibiting religion. What has changed .. . is our

understanding of the criteria used to assess whether aid —

to religion has an impermissible effect.

Agostini, 522 U.S. at 222-23 (citations omitted); see also

Mitchell, 530 U.S. at 845. Under Justice O’Connor’s rationale,

Agostini governs the decision of this case.

Consequently, this Court must ask whether the government

acted to advance or inhibit religion, whether the government

aid program had the effect of doing so, and whether the

government program endorses religion. 530 U.S. at 844-45.

B.The Ohio Voucher Program Satisfies the

Constitutional Standards of the Mitchell Concurrence

and Agostini ‘

The Court of Appeals failed to make a faithful and ree ned

application of the principles outlined in Agostini and in the

Mitchell concurrence. Beyond barely stating the intention to

apply the rationale of those two opinions, there is little

similarity between the decision below and those two opinions.

As demonstrated below, the application of the factors

9

considered relevant by pt Mitchell, and upon

which this Court decided Agostini, leads ineluctably to the

conclusion that the Ohio voucher program is constitutional.

(1)The Ohio voucher program was not enacted for the

purpose of advancing religion.

The Ohio Legislature did not adopt the voucher program at

issue here for the purpose of advancing religion. Respondents

have never contended otherwise. This point is uncontradicted.

As the district court explained, “[a]t the outset, it is important

to note that Plaintiffs do not challenge the secular purpose of

the Voucher Program.” Simmons-Harris v. Zelman, 72 F.

Supp. 2d 834, 844 n.6 (N.D. Ohio 1999).

(2)The Ohio voucher program does not have the effect of

advancing religion.

Both Agostini and the Mitchell concurrence reason that this

Court, in deciding whether aid has the effect of advancing or

inhibiting religion, will look to three considerations: (1) does

the aid result in government indoctrination of religion; (2) does

the aid program define recipients by reference to religion; and,

(3) does the program create excessive entanglement between

government and religion. /d. at 845.

(a) The Ohio voucher program does not result in

government indoctrination of religion

To determine whether the vouchers supplied in the Ohio

voucher program result in government indoctrination of

religion, several relevant factors may be considered. See

Mitchell, 530 U.S. at 846-48 (concurrence).

First, the aid is allocated according neutral, secular criteria.

10

As the court below explained: _

The program provides scholarships to children residing

within the applicable district in grades kindergarten

through eighth grade. The program gives preference to

students from low-income families, defining them as

those whose families’ income is less than 200% of the

poverty line. Scholarships may be awarded to students

who are not from low-income families on/y ifall students

from low-income families have been given first

consideration for placement. Over sixty percent of the

children receiving scholarships in the program are from

families with incomes at or below the poverty line.

234 F.3d at 948 (citations and internal quotation marks

omitted).

Second, in the same way that the Title I instructors were

provided to students in both the public and private schools of

New York City, the vouchers here are provided to the students

and their families without regard to the choice of school that

they make within the program. Agostini, 521 U.S. at 226;

Mitchell, 530 U.S. at 848. Under the Ohio program, private

schools — both secular and religious — located within the

4. Cf. Mueller v. Allen, 463 U.S. 388 (1983) (no Establishment

Clause violation in statute authorizing tax deduction for educational

expenses without regard to parental choice of public or private

schools); Witters v. Washington Department of Services for the

Blind, 474 U.S. 481 (1986) (no Establishment Clause violation when

State’s funds were used by visually impaired student to study at

religious school); Zobrest v. Catalina Foothills School Dist., 509

U.S. 1 (1993) (no Establishment Clause violation in-providing sign

language interpreter to hearing impaired student without regard to

parental choice of public or private schools).

1]

Cleveland school district that “meet the State’s education

standards” are eligible to be designated as participants, 234

F.3d at 948, as are “[p]ublic schools in districts adjacent to the

district in which the voucher program is implemented... .” /d.

at 949.°

5. The court below concluded that the inability of participating

students and their families to use their vouchers to attend public

schools made a signal difference between this case and Agostini. See

Simmons-Harris, 234 F.3d at 959 (“The alleged choice afforded

both public and private school participants in this program is

illusory in that the program's design does not result in the

participation of the adjacent public schools from outside the

Cleveland school district”). The appeals court misapprehends,

however, the governing principle. The Ohio voucher program

invites and makes possible the participation of private, secular

schools, private religious schools, and public schools. 234 F.3d at

948-49. But, the appeals court noted, the public schools eligible to

participate have declined, so far, to do so. The court below made

that refusal of those schools to participate in the program a deciding

factor of constitutional significance in striking down the voucher

program. So, as the Court of Appeals reasoned it, the unexplained

inability or unwillingness of public schools to participate in the

program, despite their eligibility to do so, made the State’s decision

to create a religion-neutral program into an_ illegitimate

establishment of religion.

Proponents of the status quo ante in education and in education

funding have powerful incentives to discourage public school

cooperation in programs testing the viability and utility of vouchers.

These proponents view empowering parental choice in education as

threatening one day to challenge the de facto primacy of public

schools. That some eligible schools choose not to participate in an

education reform program may suggest more about the politics of

certain recalcitrant public school officials than it does about the

Establishment Clause. |

12

Third, although State education aid dollars actually will

reach the “coffers” of private, religious schools under the Ohio

voucher program, that result, as in Witters, will occur only

because of the truly independent choices of private individuals

(namely the low-income or other families that receive vouchers

under the program). As the appeals court explained:

Each scholarship for children attending a private school

is payable to the parents of the student entitled to the

scholarship. Scholarship checks are mailed to the school

selected by the parents, where the parents are required to

endorse the checks over to the school in order to pay

tuition.

Simmons-Harris, 234 F.3d at 948 (citation omitted). This

“funding” is, in principle, no different than a refundable tax

credit that parents may use at the educational institution of their

choice. Cf Mueller.

Taken together, these three factors amply demonstrate that

there is neither any government indoctrination of religion

presented by the Ohio voucher program, nor any cognizable

danger of such indoctrination under the program. In this

respect, Justice O’Connor’s recapitulation of Agostini is

instructive. In Agostini, this Court, rather than presuming that

a “symbolic union” arose when government teachers entered

onto the grounds of parochial schools, concluded instead “that

in the absence of evidence showing that teachers were actually

using the Title I aid to inculcate religion, we would presume

that the instructors would comply with the program’s secular

restrictions.” Mitchell, 530 U.S. at 847; Agostini, 521 U.S.

223-24, 226-27.

“

13

Moreover, unlike the Title I program at stake in Agostini, the

Ohio voucher program includes an additional feature that

makes government indoctrination unlikely. In the Title |

program, public school remedial teachers visited public and

private schools to conduct their federally-funded remedial

instruction programs. Because the public school teachers

actually taught the instructional materials, there was a risk —

perceived or real — that they might become involved in

religious indoctrination. Here, however, no public school

teachers are dispatched to religious schools to carry out

instructional functions. For this reason, the opportunity for

such teachers to engage in government indoctrination of

religion is eliminated.

(b) The Ohio voucher program does not define benefit

recipients by reference to religion

As noted above, the Ohio voucher program does not define

recipients of vouchers by reference to religion. Instead, as the

Court of Appeals recognized, the Ohio program defines

recipients according to two, distinctly nonreligious, points of

reference. 234 F.3d at 948. First, participation is limited to

students and families in school districts that. by reason of their

mismanagement, have been placed under the direct supervision

of the State Superintendent of Schools.° Second, the Ohio

6. 234 F.3d at 948 (“In 1995, Ohio's General Assembly adopted the

Ohio Pilot Project Scholarship Program .. . in response to an order

by the United States District Court that placed the Cleveland School

District under the direct management and supervision of the State

Superintendent of Public Instruction due to mismanagement by the

local school board. The voucher program covers any state school

district that has been the subject of a federal court order requiring

supervision and operational management of the district by the state

14

voucher program defines recipients in terms of family income.

Id. Specifically, the program is available, in the first instance,

to students. from “low-income” families (families with

combined incomes up to twice the federally defined poverty

line). Other families are eligible to participate only after all

students from low-income families have been accommodated.

Id. Neither failed management of a school district nor income

level remotely resembles a religious referent.

(c) The Ohio voucher program does not create

excessive entanglement between government and

religion.

The Ohio voucher program does not create excessive

entanglement between government and religion. Nor have

Respondents contended otherwise. As the district court

explained, “there has been no challenge that it creates an

excessive entanglement between church and state.” Simmons-

Harris, 72 F. Supp. 3d at 864.

(3) The Ohio voucher program does not endorse religion.

In Agostini, after analyzing the three primary criteria also

adopted by Justice O’Connor in her Mitchell concurrence, the

Court further concluded that the Title | program did not

constitute an impermissible endorsement of religion:

New York City's Title | program does not run afoul of

any of three primary criteria we currently use to evaluate

whether government aid has the effect of advancing

religion .... We therefore hold that a federally funded

program providing supplemental, remedial instruction to

superintendent”) (citation and internal quotation marks omitted).

15

disadvantaged children on a neutral basis is not invalid

under the Establishment Clause when such instruction is

given on the premises of sectarian schools by

government employees pursuant to a program containing

safeguards such as those present here. The same

considerations that justify this holding require us to

conclude that this carefully constrained program also

cannot reasonably be viewed as an endorsement of

religion.

21 U.S. at 234-35 (emphasis added). In particular, this Court

looked to its prior decisions in two cases in illuminating the

absence of endorsement in the Title I program. See id. (citing

Witters v. Washington State Dep't of Serv. for the Blind, 474

U.S. 481, 488-489 (1986); Bowen v. Kendrick, 487 U.S. 589,

613-14 (1988)).

Under the Ohio voucher program, schools eligible to

participate include ai/ private schools, whether religious or not,

in the Cleveland schoo! district, and also the public schools of

school districts adjacent to the Cleveland district. 234 F.3d at

948-49. The families and students that are selected (using

religion-neutral criteria) decide for themselves the participating

school to which they will send their voucher and their child.

Thus, the Ohio voucher program is much like the rehabilitation

training and assistance at issue in Witters.

In Agostini, 521 U.S. at 235, this Court explained that no

endorsement resulted from the program at issue in Witters:

"*The mere circumstance that [an aid recipient] has chosen to

use neutrally available state aid to help pay for [a] religious

education [does not] confer any message of state endorsement

of religion.’" 521 U.S. at 235 (quoting Witters, 474 U.S. at 488-

16

89). In effect, the private choice of the intervening actor

removes any attribution of the- religious selection to

government actors, thus eliminating any supposed endorsement

that might otherwise follow government funds to religious

institutions. Here, the very same sort of private intervening

decision alleviates any apparent endorsement that might

otherwise be alleged to arise from the Ohio voucher program.

Under the Ohio voucher program, state funds are made

available neutrally for the education of students from low-

income families in the affected school district. The neutrality

of the program is patent. No provision of the program gives

preference in priority or funding to religious schools or to the

choice by beneficiary families of such schools. In fact, a

religious school’s mere eligibility to participate does not

guarantee the matriculation of even a single student whose

voucher will pay for schooling. If the State of Ohio only

permitted parochial schools to participate, that circumstance

would certainly present a case of "symbolic union" of state and

religion. But here there is no lurking danger of a perceived

endorsement resulting from a “symbolic union” between

private religious schools and Government in the Ohio voucher

program. See Agostini, 521 U.S. at 235 (citing Bowen, 487

U.S. at 613-14).

Because the Ohio voucher program avoids any “symbolic

union” between religion and government, and because the

private, intervening choice of an individual student and his

family is the sole factor in determining whether a voucher will

go to a secular or a religious school, no danger of perceived

endorsement exists. Indeed, the discriminating exclusion of

religious schools, and only religious schools, from participation

17

in the program would send a message of hostility inconsistent

with the Establishment Clause. See Good News Club v.

Milford Cent. Sch., 121 S. Ct. 2093, 2106 (2001); Westside

Comm. Schools. v. Mergens, 496 U.S. 226, 248 (1990)

(plurality); Rosenberger v. Rector and Visitors of the Univ. of

Virginia, 515 U.S. 819, 844-46 (1995).

CONCLUSION

For the foregoing reasons, the decision of the court below

should be reversed.

Respectfully submitted,

COLBY M. May JAY ALAN SEKULOW

VINCENT MCCARTHY Counsel of Record

WALTER M. WEBER JAMES M. HENDERSON, SR.

AMERICAN CENTER FOR AMERICAN CENTER FOR

Law & JUSTICE Law & JUSTICE

1650 Diagonal Road 205 Third Street SE

Alexandria, VA 22314 Washington, DC 20003

(703) 740-1450 (202) 546-8890

Attorneys for Amici Curiae

November 9, 2001.