Amicus Curiae Brief — Zelman v. Simmons-Harris

Supreme Court brief2001

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Nos. 00-1751, 00-1777, 00-1779:

IN THE DEC 13 200

Supreme Court of the United States

SUSAN TAVE ZELMAN, et al.,

Petitioners,

-and-

HANNA PERKINS SCHOOL, et a/.,

Petitioners,

-and-

SENEL HERMAN TAYLOR, et al.,

Petitioners,

DORIS SIMMONS-HARRIS, et ai.,

Respondents.

On Writs OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE OF THE NATIONAL

COMMITTEE FOR PUBLIC EDUCATION

AND RELIGIOUS LIBERTY IN SUPPORT

OF RESPONDENTS

STANLEY GELLER GEOFFREY F. ARONOW

President Counsel of Record

NATIONAL COMMITTEE For JONATHAN I. GLEKLEN

PusLic EDUCATION AND Jerrrey K. FRANCER

RELiGious LIBERTY RosBert J. KATERBERG

P.O. Box 586, F.D.R. Station ARNOLD & PorTER

New York; New York 10150 555 12th Street, N.W.

(212) 486-4590 Washington, D.C. 20004

(202) 942-5000

Attorneys for Amicus Curiae

171097

QUESTION PRESENTED

Whether the Establishment Clause of the First

Amendment permits a State to pay private school tuition,

including tuition at predominantly religious schools, where

such payments so intertwine the State with the teachings of

the private schools that the State feels compelled to restrict

and regulate aspects of the schools’ teachings in connection

with the provision of the funds.

TABLE OF CONTENTS

: Page

GPUNOUN PUOUOUIDD gcc ccciccccccccccceccees i

ee ew ccecccecececeeces ii

Table of Cited Authorities ................0.... Vv

Interest of the Amicus Curiae .................. l

Statement of the Case ........... ccc cccccccees 2

Summary of Argument ...............0000005. 3

Argument EE Ee ee re 6

I. Qhio’s Voucher Program Crosses The Line

Between Permissible And Constitutionally

Forbidden Aid To Religious Schools That Has

Existed Since The Everson Decision. ..... 6

II. Ohio’s Voucher Program Results In Unlawful

Government Indoctrination Of Religion.... 10

A. The Establishment Clause Is Violated

If Religious Indoctrination Can Be

Attributed To The State. ............ 10

B. The Viewpoint-Related Criteria For

Schools To Participate In The Voucher

Program Survive Scrutiny Under The

Free Speech Clause Because The

Schools Are Perceived To Be In

Part Communicating The Government’s

EE 11

Contents

Page

1. The Ohio statute’s viewpoint

discrimination would normally

violate the First Amendment’s Free

Speech Clause. ...........+.55: 11

2. The Ohio Statute does not raise free

speech concerns because vouchers

are funding in part the government’s

OWN Message. ......... 666s eee 14

C. Because The Schools That Accept

Vouchers Are Properly Seen To Be

Communicating In Part A Governmental

Message, The Ohio Voucher Program

Violates The Establishment Clause

Because Of The Inference Of

Government Endorsement Of The

Schools’ Religious Message. ........ 15

Ill. The Ohio Voucher Program Also Results

In Excessive Entanglement Between

Government And Religious Organizations. .. 18

A. Avoidance Of Entanglement Is A

Fundamental Aspect Of Establishment

Clause Jurisprudence. .............. 18

B. Ohio’s Voucher Program Causes

Excessive Entanglement Between The

State and Religious Schools Because

Administrative Enforcement of Ohio’s

Viewpoint Discrimination Provisions

Inevitably Requires The State To

Evaluate And Interfere With Religious

BS, docaceccccccocesccsseces 21

Contents

Page

C. The Intrusion Into Doctrinal Matters

Here Distinguishes This Program

From The Limited Neutral State

Regulatory Oversight That This Court

IES cnccrccccccccoseoese 25

IV. The Flaws In The Ohio Voucher Program

Cannot Be Cured By Severing The Provision

Barring Registration Of Schools That Teach

Hate Or Advocate Unlawful Behavior. .... 27

SEE . ccwednctuneece teeted ewecuabalece 30

TABLE OF CITED AUTHORITIES

Page

Cases:

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

Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392

ED oKG64ceceesedsecedscenecscs 9

Bd. of Educ. of Westside Cmty. Sch. v. Mergens,

PEE de-cedeteccecdecéetusess 26

Bob Jones Univ. v. United States, 461 U.S. 574

DE Ghseec6deddhGesGeauntorsecetbeessce 12

Brandenburg v. Ohio, 395 U.S. 444 (1969) ....... 12

Cantwell v. Connecticut, 310 U.S. 296 (1940) .... 13

Cohen v. California, 403 U.S. 15 (1971) ......... 12

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

Sees CUED aves covconccoecess 1, 19, 20, 21

Corp. of Presiding Bishop of Church of Jesus Christ

of Latter-Day Saints v. Amos, 483 U.S. 327

Dt ittad bh cadebeddetesesdevdeésesees 10

Dickerson v. United States, 530 U.S. 428 (2000) .. 21

Edwards v. Aguillard, 482 U.S. 578 (1987) ....... l

Employment Div., Dept of Human Res. v. Smith,

ED a oeneucudecesocnéaes 12, 13, 23

Cited Authorities

Page

Everson v. Bd. of Educ. of Ewing Tp., 330 U.S. 1

GEE cncccccecdecccesecesonceasecesuns 6, 7, 8,9

Good News Club v. Milford Cent. Sch., 531 U.S.

PEP GNOED cccccocccceccscoessSeenceseuces l

Hernandez v. Comm'r, 490 U.S. 680 (1989) ....... 26

Hurley v. Irish-American Gay, Lesbian and Bisexual

Group, 515 U.S. 557 (1995) .... 2... cece eens 12

Leavitt v. Jane L., 518 U.S. 137 (1996) .......... 29

Lee v. Weisman, 505 U.S. 577 (1992) ........... 1, 6, 7

Legal Servs. Corp. v. Velasquez, 531 U.S. 533 (2001)

WITTTIVTITTT TTT LTT LT ee passim

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

Los Angeles Police Dep't v. United Reporting

Publ'g Corp., 528 U.S. 32 (1999) ............ 14

Meek v. Pittenger, 421 U.S. 349 (1975) .......... 25

Mitchell v. Helms, 530 U.S. 793 .............4.. passim

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

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

DEDUEEE ¢ccaccubacesnweunseduockdodiantel ~ 24, 25

Pierson v. Ray, 386 U.S. 547 (1967) ............ 22

vii

Cited Authorities

Page

Prince v. Massachusetts, 321 U.S. 158 (1944) .... 23

Pub. Funds for Pub. Sch. v. Marburger, 358 F. Supp.

29 (D.N.J. 1973), aff'd mem., 417 U.S. 961

DE ADsdcaddondsveebsnsdeeeendeensecess 21, 24

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .... 12, 13

Regan v. Taxation with Representation, 461 U.S. 540

SEED ObK0400660-04000080%6068606b06000605 14

Reynolds v. United States, 98 U.S. 145 (1878) .... 23

Rosenberger v. Rector and Visitors of Univ. of Va.,

SEP Ge SE GREEED cccscccccdsesees 12, 15, 16, 21

Rust v. Sullivan, 500 U.S. 173 (1991) ........... 15

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

SED eb0s0bdenssbeesesadescusehsscoccen) 16

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

ieedeetéacsoeus bevaccobeosvebaséeneécsce Oe

Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir.

PE Sodonacdsccceccddudbontencansdecves 2,3

Simon & Schuster v. Members of N.Y. State Crime

Victims Bd., 502 U.S. 105 (1991) ............. 14

State v. Hochhausler, 668 N.E.2d 457 (Ohio 1996)

viii

Cited Authorities

Page

State ex rel. Herbert v. Ferguson, 52 N.E.2d 980

DED 60 i06scecesonbabe suse dhdeketec 28

State ex rel. Squire v. City of Cleveland, 82 N.E.2d

PPP NEED esicotecctedasabeabisvetes 28

Tony and Susan Alamo Found. v. Sec'y of Labor,

See Gn EE. cide chcibtecedeccoccase 25, 26

Turner Broad. Sys., Inc. v. FCC, 512 U.S.

GEE Gudecececcathiedebedstiecdsteass 12

United States v. Lee, 455 U.S. 252 (1982) ........ 23

United States v. Seeger, 380 U.S. 163 (1965) ..... 22

Walz v. Tax Comm'n, 397 U.S. 664 (1970) ....... 18, 19

Witters v. Washington Dept of Servs. for Blind,

Ge ee Se ED Kntovcoctunsosscecdes 9, 16, 17

Zobrest v. Catalina Foothills Sch. Dist., 509

eee MUN baveucdecbacecéccesdacdudasse 1,9

United States Constitution:

Cited Authorities

Page

Statutes:

BO UBL. 6 TETAAD oc cccccccvccccccsccvccives 17

1999 Ohio Law Files 37, Section 54 ............ 28

Ohio Rev. Code Ann. § 1.50 (West 2001) ........ 28

Ohio Rev. Code Ann. §§ 3313.974-3313.979 (West

NED eo escncscnsesoesoceds fap seebececucess 2

Ohio Rev. Code Ann. § 3313.975 (West 2001) ..... 2

Ohio Rev. Code Ann. § 3313.976 (West 2001) .... passim

Ohio Rev. Code Ann. § 3313.979 (West 2001) ..... 3

Rules:

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Baw. CL Rathe S7.Bia) on nc cccccccccccccsccccces l

Bap. Ch. PRO STG wc ccccccccvcccccccccccscces l

Other Authority:

Marc Fisher, Muslim Students Weigh Questions of

Allegiance, Wash. Post, Oct. 16,2001 ........ 23

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INTEREST OF THE AMICUS CURIAE'

The National Committee for Public Education and Religious

Liberty (“National PEARL”) is a national coalition of organizations

sharing the objective of preserving religious freedom and

the separation of church and state in public education.’

National PEARL was the lead plaintiff in Comm. for Pub.

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

which the court below relied and which Petitioners here seek to

distinguish. National PEARL has also participated as amicus

curiae in numerous other cases before this Court addressing

Establishment Clause issues, including Good News Club v.

Milford Cent. Sch., 531 U.S. 923 (2000); Agostini v. Felton,

521 U.S. 203 (1997); Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993); Lee v. Weisman, 505 U.S. 577 (1992); and

Edwards v. Aguillard, 482 U.S. 578 (1987). As a national

organization dedicated to protecting religious freedoms for all

citizens, and as a party to one of the principal precedents at

stake here, National PEARL believes its participation as amicus

curiae makes a meaningful contribution to the issues raised in

this case.

1. Pursuant to United States Supreme Court Rule 37.3(a), counsel

of record has filed letters with the Clerk of Court consenting to the

filing of this brief. Pursuant to Rule 37.6, counsel for amicus states that

no counsel for a party authored this brief in whole or in part and no

person, other than amicus, its members, or its counsel made a monetary

contribution to the preparation or submission of this brief.

2. National PEARL’s members include the following organizations:

A. Philip Randolph Institute, American Federation of Teachers,

Americans for Religious Liberty, American Humanist Association,

Central Conference of American Rabbis, Community Church of New

York, Council of Supervisors and Administrators, Hadassah, Jewish

Labor Committee, Jewish Reconstructionist Federation, Minnesota Civil

Liberties Union, Monroe County PEARL, National Council of Jewish

Women, National Education Association, National Center for Science

Education, New York State United Teachers, Ohio PEARL, United

Community Centers, United Federation of Teachers, United Synagogues

of Conservative Judaism, Washington Area Secular Humanists, Woman’s

ORT, and Workmen’s Circle.

STATEMENT OF THE CASE

In 1995, the Ohio legislature enacted the “Pilot Project

Scholarship Program” (the “voucher program” or the

“program”). Ohio Rev. Code Ann. (“ORC”) §§ 3313.974-

3313.979 (West 2001). The voucher program mandates that the

Ohio Superintendent of Public Education provide scholarships

and other assistance for certain Cleveland School District

students in the kindergarten through eighth grades, to enable

them to pay tuition necessary to attend nearby private schools

or alternative public schools that meet standards set forth in the

statute. See id. § 3313.975. The statute does not restrict the

schools’ use of the State’s voucher payments in any way. Thus,

participating religiously-affiliated private schools may use the

state funds for any purpose, including the teaching and

promotion of religious tenets. The program is targeted toward

low-income families.

The statute established numerous rules governing the

participation of schools in the program. Participating schools

must be registered with the State Superintendent of Public

Education. See id. § 3313.976(A). Among the requirements for

registration, participating schools, whether public or private,

must not “advocate or foster unlawful behavior or teach hatred

of any person or group on the basis of race, aes oe

origin, or religion.” Jd.

The overwhelming majority of schools that have registered

to participate in the voucher program are sectarian. During

the 1999-2000 school year, 82% (forty-six of fifty-six) of the

schools participating in the program were church-affiliated.

See Simmons-Harris v. Zelman, 234 F.3d 945, 949 (6th Cir.

2000). 96% of the students participating in Ohio’s voucher

program enrolled in sectarian schools. Jd. No public schools

have participated in the program. /d.

Participating private schools are subject to oversight

by Ohio’s Superintendent of Public Education in several

respects. First, prior to and as a condition of registration, the

Superintendent must determine that private and public schools

satisfy the standards of participation set forth in section

3313.976(A). See ORC § 3313.976(A). Once schools are

registered, the Superintendent “shall revoke the registration of

any school, if after a hearing, the superintendent determines

that the school is in violation of any of the provisions” of section

3313.976(A). Id. § 3313.976(B).

Under Ohio’s program, a voucher can only be used to pay

the private school that registers and complies with the program’s

requirements, including the limitations on what the school

advocates or teaches. Program funds for students in private

schools are mailed directly to the participating schools, where

the checks, which are payable to the parents, are presented to

parents for endorsement over to the school. Simmons-Harris,

_234 F.3d at 948 (State Pet. App. at 4a). Ifany neighboring public

schools participated in the program (and, as noted, none to date

do), grants for use at those schools would be paid directly to the

relevant school district. See ORC § 3313.979.

SUMMARY OF ARGUMENT

Ohio’s voucher program violates the Establishment Clause

because, unlike in any of the cases upon which Petitioners

primarily rely, the State’s funds are provided to religious schools

for use in their general or religious curriculum without

restriction. Ohio’s voucher program results in direct financial

aid to religious schools. It is of no analytical significance that

the voucher checks — which are mailed directly to private

schools — must be endorsed by parents and thus pass

momentarily through the hands of a third party. Parents have no

discretion or control over the use of voucher funds; this is not a

case in which a “student can attend a religious school and yet

retain control over whether the secular government aid will be

applied toward the religious education.” Mitchell v. Helms, 530

U.S. 793, 842 (2000) (O’Connor, J., concurring). Under such

circumstances, the statute does not merely subsidize the “private

choices of individuals,” Agostini v. Felton, 521 U.S. 203, 226

(1997), but rather represents an unconstitutional governmental

advancement of religion.

Direct government funding of religious schools without any

limitations on the use of the funds, such as that provided by the

Ohio voucher program, inevitably associates the government

with the institution’s religious message. The Ohio program thus

violates the Establishment Clause by providing an “imprimatur

of state approval” to the voucher schools, Mueller v. Allen, 463

U.S. 388, 399 (1983), resulting in a suggestion that

indoctrination “has been done at the behest of the government.”

Mitchell, 530 U.S. at 809.

The most striking manifestation of this problem is the

restriction placed on the doctrines taught by schools that wish

to participate in the voucher program. The Ohio voucher statute

contains a straightforward form of viewpoint discrimination.

Schools may be registered to receive vouchers only if they do _

not “teach” hatred of other races and religions and only if they

do not “advocate or foster” unlawful behavior. Ohio undoubtedly

placed restrictions on voucher schools because it recognized

that the teachings of schools receiving funds from the voucher

program would carry the imprimatur of the State.

Indeed, the voucher program’s content-based restrictions

on speech survive constitutional scrutiny under the Free Speech

Clause only because the schools’ teachings are, in fact, in part

the government’s own message. Private parties have a right-

under the Free Speech Clause to teach hate and advocate

unlawful behavior. This Court has, however, recognized that

the government may refuse to fund a disfavored message “where

the government’s own message is being delivered” and “when —

the government speaks .. . to promote its own policies or to

advance aparculr idea.” Legal Ser Corp. v. Velasquez, 531

U.S. 533, 541 (2001).

If the message taught in schools that receive vouchers is, in

part, “the government’s own message,” the Ohio statute fails to

“separate the government from endorsement of the religious

message.” Mitchell, 830 U.S. at 843 (concurring opinion).

This creates an inference, impermissible under the Establishment

Clause, that the State has also endorsed the religious message

of the schools.

Moreover, an inquiry into whether a statutory scheme

creates an excessive entanglement between religious

organizations and the State “has consistently been an aspect of

[the Court’s] Establishment Clause analysis.” Agostini, 521 U.S.

at 232 (O’Connor, J.). Ohio’s voucher program violates the

Establishment Clause in this regard as well, because it results

in excessive entanglement in sensitive areas of religious doctrine

by compelling the State to regulate the teachings of religious

schools. ;

The Ohio statute requires pervasive entanglement in a highly

sensitive area. The State must determine whether the educational

message — including an educational message dictated by the

school’s religious orientation — constitutes the teaching of hate

of other groups or advocacy of violations of law. The regulation

contemplated by the statute would inevitably collide with

religious doctrine, given, for example, the long-standing history

of religious civil disobedience. Moreover, Ohio’s determination

whether religious schools have violated the viewpoint

discrimination provisions would inevitably prove to be

politically divisive. .

The Court cannot solve the constitutional infirmities

with the Ohio voucher program by severing section

3313.976(A)(6) of the statute. Ohio’s voucher program violates

the Establishment Clause because the program’s general funding

of the participating schools creates the perception of a

government imprimatur for the message taught in religious

schools. Removing only this provision, which is merely the most

striking symptom of the underlying problem, would not cure

the underlying defect in the statute. Moreover, severance would

be improper under Ohio law because the provisions in question

are “so connected with the general scope of the whole as to

make it impossible to give effect to the apparent intention of

the Legislature if the clause or part is stricken out.” State v.

Hochhausler, 668 N.E.2d 457, 466-67 (Ohio 1996) (internal

citations and quotation omitted). Thus, the Court must declare

the statute unconstitutional in its entirety.

ARGUMENT

The Sixth Circuit properly held that Ohio’s voucher program

violates the Establishment Clause of the United States

Constitution. The grounds set forth in the Sixth Circuit's opinion

are sufficient in themselves for this Court to conclude, as did

the lower court, that Ohio’s program is unconstitutional.

_Mindful, however, of the Court’s instruction that “{a}n amicus

curiae brief that brings to the attention of the Court relevant

matter not already brought to its attention by the parties may be

of considerable help to the Court,” Sup. Ct. Rule 37.1, this brief

focuses primarily on issues that the parties have not previously

addressed.

I. OHIO’S VOUCHER PROGRAM CROSSES

THE LINE BETWEEN PERMISSIBLE AND

CONSTITUTIONALLY FORBIDDEN AID TO

RELIGIOUS SCHOOLS THAT HAS EXISTED

SINCE THE EVERSON DECISION.

This Court has long recognized Jefferson’s edict that the

First Amendment was “intended to erect ‘a wall of separation

_ between church and state.’ ” Everson v. Bd. of Educ. of Ewing

Tp., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States

98 U.S. 145, 164 (1878)). As noted in Lee v. Weisman, 505 U.S.

577, 601 (1992) (Blackmun, J., concurring, joined by Stevens

and O’Connor, JJ.), even the dissenters in Everson agreed that

““(t]he Amendment's purpose . . . was to create a complete and

permanent separation of the spheres of religious activity and

civil authority by comprehensively forbidding every form of

public aid or support for religion.’” 505 U.S. at 601 (alteration

in original) (quoting Everson, 330 U.S. at 31-32 (Rutledge, J.,

dissenting, joined by Frankfurter, Jackson, and Burton, JJ.)).

The Founders intended the First Amendment’s clauses on

religicn to shield religion from governmental interference as

well as to maintain a nonsectarian government. James Madison

warned that “experience witnesseth that ecclesiastical

establishments, instead of maintaining the purity and efficacy

of Religion, have had a contrary operation.” Memorial and

Remonstrance Against Religious Assessments, Par. 7 (1785)

(hereinafter ““Remonstrance”’), reprinted in Appendix to Everson,

330 U.S. at 63-72 (Rutledge, J., dissenting). Madison declared

that “in matters of Religion, no man’s right is abridged by the

institution of Civil Society, and that Religion is wholly exempt

from its cognizance.” Remonstrance, Par. 1, reprinted in

Appendix to Everson, 330 U.S. at 63-72.

The Court in Lee v. Weisman echoed this belief:

“The First Amendment’s Religion Clauses mean that religious

beliefs and religious expression are too precious to be either

proscribed or prescribed by the State.” 505 U.S. at 589.

“{T]}he lesson of history that was and is the inspiration for the

Establishment Clause, the lesson that in the hands of government

what might begin as a tolerant expression of religious views

may end in a policy to indoctrinate and coerce.” Jd. at 591-92.

The lessons of the First Amendment are as urgent in

the modern world as in the 1 8th century when it was

written. One timeless lesson is that if citizens are

subjected to state-sponsored religious exercises, the

State disavows its own duty to guard and respect

that sphere of inviolable conscience and belief which

is the mark of a free people.

Id. at 592.

This is not a time for the principle of separation of church

and state to be diluted. This nation’s unique contribution to

religious freedom has been its fundamental principle of

separation of church and state. This principle has been redefined

from time to time, but there is no question of its lasting value in

the promotion of peace and prosperity domestically, and the

promise it may hold for the rest of the world faced with threats

from nations that, to quote James Madison in his Remonstrance,

use religion as an “engine of civil policy.” Remonstrance,

Par. 5, reprinted in Appendix to Everson, 330 U.S. at 63-72.

There is no question that Ohio’s voucher program results

in direct financial aid to religious schools. Indeed, the religious

schools are the actual, direct, and primary recipient of

government funds under the program. Although funds are

nominally payable in the first instance to the parents of voucher

program students, the checks are not even mailed to the parents

of participating students. Rather, checks are mailed to the private

schools, where the parents must endorse the check over to the

school to pay for tuition. The simple expedient of momentarily

funneling the funds through the hands of third parties — who

have no discretion or control over the use of the funds — cannot

transform the nature of the constitutional analysis.

- This is not a case in which a “student can attend a religious

school and yet retain control over whether the secular

government aid will be applied toward the religious education.”

Mitchell v. Helms, 530 U.S. 793, 842 (2000) (O’Connor, J.,

concurring). Religious schools may use Ohio’s voucher funds

to support their general curricula no matter how much the

Yet, Petitioners acknowledge that:

In programs of direct aid, if a religious school

employs that aid to inculcate religious doctrine or

teaching, it might be argued that the government has

communicated a subtle message of endorsement.

State Petitioners Br. at 21 (citing Mitchell, 530 U.S. at 843

(O’Connor, J., concurring)). Because the substance of the Ohio

program is one of direct aid, the voucher program is

unconstitutional for the very reason identified by Petitioners.

This aspect of the Ohio voucher program, government funds

being provided to religious schools to use without restriction in

their general curriculum, distinguishes this case from every case

upon which Petitioners primarily rely: Everson, 330 U.S. 1;

Bd. of Educ. of Cent. Sch. Dist. No. 1 v_ Allen, 392 U.S. 236

(1968); Mueller v. Allen, 463 U.S. 388 (1983); Witters v.

Washington Dept. of Servs. for Blind, 474 U.S. 481 (1986);

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993);

Agostini v. Felton, 521 U.S. 203 (1997); and Mitchell, 530 U.S.

793. In each one of those cases, the government benefit either

had a minimal relationship to religious indoctrination (free bus

fare in Everson, books in Allen, tax deductions for educational

expenses in Mueller, and interpreters in Witters and Zobrest),

or the benefit program expressly barred the use of funds for

religious purposes (the remedial instruction in Agostini and the

teaching aids in Mitchell). In no case has this Court upheld direct

aid to schools of the type found in the Ohio program that can be

used to pay for religious indoctrination. As Justice O’Connor

noted in Mitchell, although the Court’s cases “have permitted

some government funding of secular functions performed by

sectarian organizations,” its “decisions provide no precedent

for the use of public funds to finance religious activities.” 530

U.S. at 840 (internal quotation and citation omitted).

Nothing in this Court’s precedents or in the history of the

Establishment Clause justifies crossing the line that has existed

from Everson to the present day. The Ohio program — which

provides direct funds with “no strings attached” — is, and should

remain, on the wrong side of that line.

Il. OHIO’S VOUCHER PROGRAM RESULTS IN

UNLAWFUL GOVERNMENT INDOCTRINATION

OF RELIGION.

Notwithstanding the evolution of this Court’s Establishment

Clause jurisprudence, a bedrock principle remains clear:

The government may not appear to engage in religious

indoctrination. Mitchell, 530 U.S. at 808 (plurality opinion);

see also Corp. of Presiding Bishop of Church of Jesus Christ of

Latter-Day Saints v. Amos, 483 U.S. 327, 337 (1987) (“For a

law to have forbidden ‘effects’ under Lemon [v. Kurtzman, 403

U.S. 602 (1971)], it must be fair to say that the government

itself has advanced religion through its own activities and

influence.”) (emphasis added). The voucher program violates

the Establishment Clause because the indoctrination that occurs

in Ohio schools funded with program money is attributable to

the government.

A. The Establishment Clause Is Violated If Religious

Indoctrination Can Be Attributed To The State.

“As [the Court has] repeatedly recognized, government

inculcation of religious beliefs has the impermissible effect of

advancing religion.” Agostini, 521 U.S. at 223-25 (upholding

statute because public employees teaching secular remedial

classes in private schools would not engage in religious

indoctrination). Even where the government does not itself

engage in indoctrination, government aid to religious institutions

violates the Establishment Clause if the aid program conveys

an “imprimatur of state approval,” Mueller, 463 U.S. at 399,

upon the recipients of state funds, resulting in a suggestion that

indoctrination “has been done at the behest of the government.”

Mitchell, 530 U.S. at 809.

Government funding of religious schools, such as that

provided by the Ohio voucher program, without any limitations

on the use or channeling of the funds for particular purposes,

imovitably totes the ‘th the institution’s

message. In this case, the most striking manifestation of this

problem is the restrictions placed on the doctrines that the

schools may teach. Ohio placed restrictions on those doctrines

undoubtedly because it recognized that the teachings of schools

receiving funds from the voucher program would carry the

imprimatur of the State. Indeed, as explained below, the statute’s

restrictions on speech survive constitutional scrutiny under the

Free Speech Clause only because the schools’ teachings, in fact,

carry the imprimatur of being the government’s own message.

Under those circumstances, the statute does not

merely subsidize the “private choices of individuals,” Agostini,

521 U.S. at 226, but rather represents an unconstitutional

governmental advancement of religion.

B. The Viewpoint-Related Criteria For Schools

To Participate In The Voucher Program

Survive Scrutiny Under The Free Speech Clause

Because The Schools Are Perceived To Be In

Part Communicating The Government’s Own

Message.

1. The Ohio statute’s viewpoint discrimination

would normally violate the First Amendment’s

Free Speech Clause.

The Ohio statute does not allow state funding to go to just

any school selected by a voucher program participant. Rather,

vouchers can be used only at schools that have registered with

the State Superintendent of Public Instruction. The

Superintendent may register a school only if, inter alia, it does

not “advocate or foster unlawful behavior or teach hatred of

any person or group on the basis of race, ethnicity, national

origin, or religion.” ORC § 3313.976(A)(6). This viewpoint

discrimination would normally violate the First Amendment’s

Free Speech Clause.

Advocacy of “hatred” and “unlawful behavior” by private

actors is subject to First Amendment protections against

government interference, and viewpoint discrimination in such

circumstances would be unconstitutional.’ “It is axiomatic that

the government may not regulate speech based on its substantive

content or the message it conveys.” Rosenberger v. Rector and

Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). Statutes will

be held unconstitutional on their face where they are targeted at

ideas the government seeks to suppress. Cohen v. California,

403 U.S. 15, 18 (1971). Thus, content-based discrimination

against speech is “presumptively invalid,” R.A.V. v. City of St.

Paul, 505 U.S. 377, 382 (1992), and subject to “the most

exacting scrutiny,” Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 641-43 (1994).

It has been clear since Brandenburg v. Ohio, 395 U.S. 444

(1969), that the First Amendment’s free speech guarantees

embrace the right to “teach or advocate” violations of law.

Id. at 445. Restrictions on speech by private parties that advocate

violations of law are constitutional only where the “advocacy is

directed to inciting or producing imminent lawless action and

is likely to incite or produce such action,” id. at 447, but the

Ohio law at issue here contains no such limitation on the

advocacy that it seeks to restrict. In Employment Div., Dep t of

Human Res. v. Smith, 494 U.S. 872 (1990), this Court reaffirmed

this principle, when it upheld the Oregon statute that had the

effect of preventing Native Americans from smoking peyote as

3. The state may, of course, bar schools from engaging in

discriminatory conduct, as it has done in ORC § 3313.976(A)(4), which

prohibits a participating school from “discriminat{ing} on the basis of

race, religion, or ethnic background.” See Bob Jones Univ. v. United

States, 461 U.S. 574 (1983) (upholding denial of tax exemption to

ligi hools that had discrimi snissi licies). But there

is a world of difference between restricting discriminatory conduct and —

mere teaching or speech. As this Court held in Hurley v. Irish-American

Gay, Lesbian and Bisexual Group, 515 U.S. 557 (1995), “While the law

is free to promote all sorts of conduct in place of harmful behavior, it is

not free to interfere with speech for no better reason than promoting an

approved message or discouraging a disfavored one, however enlightened

either purpose may strike the government.” Jd. at 579.

required by their religion only because there was “no contention

that Oregon’s drug law represents an attempt to regulate . . . the

communication of religious beliefs, or the raising of one’s

children in those beliefs.” Jd. at 882.

It is similarly clear that the First Amendment protects speech

by private parties that advocates or teaches hatred based on race,

ethnicity, national origin, or religion. In R.A. V. v. City of St. Paul,

this Court held unconstitutional a city ordinance that

criminalized speech that the speaker “kn[ew] or ha[d] reasonable

grounds to know arouses anger, alarm or resentment in others

on the basis of race, color, creed, religion or gender.” 505 U.S.

at 380. The Court found impermissible viewpoint discrimination

because the content limitation “display|ed] the city council’s

special hostility towards the particular biases thus singled out,”

id. at 396, and because “the First Amendment does not permit

St. Paul to impose special prohibitions on those speakers who

express views on disfavored subjects.” Jd. at 391.‘ Similarly, in

Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940), this Court

overturned on free speech grounds the conviction of a Jehovah’s

Witness for criticizing other religious groups as “instruments

of Satan” — arguably a manifestation of hatred on the basis of

religion.

The Ohio voucher program thus contains a straightforward

form of viewpoint discrimination. The Superintendent may

and “advocate or foster” compliance with law. She may not

not endorsed by the state in the statute.

Although the Ohio statute does not criminalize or otherwise

directly regulate speech, it does condition a benefit — the right

of schools to accept state-funded vouchers —upon the viewpoint

4. The Court so held even while acknowledging that the ordinance’s

scope was arguably !imited, as the Ohio statute is not, to “fighting words.”

505 U.S. at 381.

advocated by the school that seeks to register. Such a financial

disincentive for “disfavored” speech, if applied to private actors,

violates the First Amendment’s free speech guarantee every bit

as much as does an outright prohibition. “A statute is

presumptively inconsistent with the First Amendment if it

imposes a financial burden on speakers because of the content

of their speech.” Simon & Schuster v. Members of N.Y. State

Crime Victims Bd., 502 U.S. 105, 115 (1991). Accord Regan v.

Taxation with Representation, 461 U.S. 540, 548 (1983)

(upholding tax deductions for contributions to veterans’ groups

engaged in lobbying while denying deductions to other groups

that lobbied, but observing that “[t]he case would be different

if Congress were to discriminate invidiously in its subsidies in

such a way as to aim at the suppression of dangerous ideas.”)

(internal citation and quotation omitted); Los Angeles Police

Dept. v. United Reporting Publ'g Corp., 528 U.S. 32, 43 (1999)

(“[I)f the award of the subsidy is not based on an illegitimate

criterion such as viewpoint, California is free to support some

speech without supporting other speech.”) (emphasis added).

2. The Ohio Statute does not raise free speech

concerns because vouchers are funding in part

the government’s own message.

Even though viewpoint discrimination — whether through

regulation or in the form of discriminatory subsidies — violates

the First Amendment’s free speech guarantees when applied

to private actors, the government may place restrictions on

speech when it is subsidizing its. own message. The Court

addressed this issue directly in Legal Servs. Corp. v. Velasquez,

531 U.S. 533, 541 (2001):

We have said that viewpoint-based funding decisions

can be sustained in instances in which the

government is itself the speaker, see Bd. of Regents

of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217,

229, 235, 120S. Ct. 1346, 146 L. Ed. 2d 193 (2000),

or instances, like Rust [v. Sullivan, 500 U.S. 173

(1991)], in which the government “used private

speakers to transmit specific information pertaining

to its own program.” Rosenberger v. Rector and

Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S. Ct.

2510, 132 L. Ed. 2d 700 (1995). As we said in

Rosenberger, “[w]hen the government disburses

public funds to private entities to convey a

governmental message, it may take legitimate and

appropriate steps to ensure that its message is neither

garbled nor distorted by the grantee.” Jbid.

Thus, under this Court’s precedents, restrictions on speech

are permitted only “where the government’s own message is

being delivered” and “when the government speaks .. . to

promote its own policies or to advance a particular idea.” Legal

Servs. Corp., 531 U.S. at 541 (internal citation and quotation

omitted). Restrictions on government-funded doctors were

acceptable in Rust because they were engaged in “governmental

speech.” Jd. at 541. But restrictions on student organizations in

Rosenberger and lawyers in Legal Services Corp. were

unconstitutional because the programs were “designed to

facilitate private speech, not to promote a governmental

message.” Jd. at 542.

C. Because The Schools That Accept Vouchers Are

Properly Seen To Be Communicating In Part A

Governmental Message, The Ohio Voucher

Program Violates The Establishment Clause

Because Of The Inference Of Government

Endorsement Of The Schools’ Religious Message.

The State’s regulation of the message advocated by schools

that receive voucher funds is grounded on the foundation that

the schools’ message will be seen, accurately, as in part the

State’s own message. If the message is one of religious

indoctrination or the advancement of religion, as it is at many

of the schools that receive voucher funds, the program thus

violates the Establishment Clause. See Mitchell, 530 U.S. at

808 (plurality opinion).

A “reasonable observer is likely to draw from the facts . . .

an inference that the State itself is endorsing a religious practice

or belief.” Witters, 474 U.S. at 493 (O’Connor, J., concurring

in part and concurring in judgment). The schools’ message is

not “endorsed only by the individuals attending the religious

school,” but also by the State. Mitchell, 530 U.S. at 843

(concurring opinion). The Ohio statute does not “separate the

government from endorsement of the religious message.” Jd.

Moreover, Ohio has expressly involved itself in the message of

schools deemed eligible to accept vouchers through the

qualification provisions in the voucher statute. This creates an

inference, impermissible under the Establishment Clause, that

the State has also endorsed the religious message of the schools.

This case is much like Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000), in which the Court addressed a claim that

student-led, student-initiated invocations prior to school football

games did not violate the Establishment Clause because they

were “private student speech.” Jd. at 302. Distinguishing

Rosenberger, which held that “an individual’s contribution to a

government-created forum was not government speech,” id. at

302, the Court found that the invocation was government speech

in part because the “invocation ... is subject to particular

regulations that confine the content and topic of the student’s

message.” Jd. at 303. The student’s speech violated the

Establishment Clause because it would be “perceive[d] . . . as a

state endorsement of prayer in public schools.” Jd. at 308

(internal citation and quotation omitted). Similarly in the case

of the Ohio program, the schools that receive vouchers are not

merely a government-subsidized forum. Because the State

controls elements of the message in the forum, the speech is

properly attributable to the government, creating a violation of

the Establishment Clause.

As Justice O’Connor recognized in her concurrence in

Mitchell v. Helms, the question of whether the government is

engaged in ““general[] or evenhanded[]’” distribution of funds

“*is relevant in judging whether a benefit scheme so

characterized should be seen as aiding a sectarian school’s

religious mission.”” Mitchell, 530 U.S. at 840 (quoting id. at

883-84 (Souter, J., dissenting)). There is no such “general or

evenhanded” distribution of funds under the Ohio statute; funds

do not go to schools with a message inconsistent with that

endorsed by the State. The factual situation here is thus

distinguishable from those in Mitchell and Agostini, in which

aid was available to students at any private school. See Mitchell,

530 U.S. at 802°; Agostini, 521 U.S. at 208-210. The Minnesota

statute at issue in Mueller similarly allowed tax deductions

for school expenses regardless of the school’s viewpoint.

See 463 U.S. at 398-99.

If the private schools participating in the Ohio voucher

program were merely promoting their own private viewpoint,

there would be no reason — and could be no Constitutional

basis — for the State of Ohio to deny vouchers to schools that

taught hate or promoted violations of law. If the State were

merely funding the “genuinely independent and private choices

of individuals,” Mitchell, 530 U.S. at 810 (plurality opinion)

(internal citation and quotation omitted), it would be as

indifferent to the schools’ message as it is to the message

promoted by a church to which a government employee donated

her paycheck. Cf. Witters, 474 U.S. at 486-87. The inference of

a governmental endorsement of the message of religious

schools funded by the Ohio voucher program, and the State’s

involvement with and selection among the schools’ messages

5. The Chapter 2 aid in Mitchell was available to all public schools,

but only to nonprofit private schools. See 530 U.S. at 802; 20 U.S.C.

§ 7372(a). This limitation based upon the corporate form of the schools,

unlike the viewpoint regulations at issue here, does not suggest a

government imprimatur on the viewpoints taught by the recipients of

state aid.

that necessarily follows from that inference, renders the

statute unconstitutional.

lil. THE OHIO VOUCHER PROGRAM ALSO

RESULTS IN EXCESSIVE ENTANGLEMENT

BETWEEN GOVERNMENT AND RELIGIOUS

ORGANIZATIONS.

The Ohio voucher program, by mandating governmental

regulation of the message “advocated” or “fostered”

by participating religious schools, creates an excessive

entanglement between religious organizations and the State

and therefore violates the Establishment Clause for this

reason as well.

A. Avoidance Of Entanglement Is A Fundamental

Aspect Of Establishment Clause Jurisprudence.

The Court has consistently declared that, in order

to survive scrutiny under the Establishment Clause, a

statute must do more than offer facial neutrality toward

religion. “We must also be sure that the end result — the

effect — is not an excessive government entanglement with

religion.” Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970).

See also Mitchell, 530 U.S. at 839 (O’Connor, J., concurring)

(“[ W]e have never held that a government-aid program passes

constitutional muster solely because of the neutral criteria it

employs as a basis for distributing aid.”) (emphasis in

original).

For thirty years, the “general nature” of this Court’s

Establishment Clause analysis has been governed by the

three-prong test set forth in Lemon v. Kurtzman, 403 U.S.

602 (1971). See, e.g., Mueller, 463 U.S. at 394 (applying the

three-pronged test). Despite incremental adjustments to the

Court’s application of the test, Lemon remains the touchstone

for determining whether the State has run afoul of the

Establishment Clause.

To survive an Establishment Clause challenge, first, a

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

principal or primary effect must be one that neither advances

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

excessive government entanglement with religion.” Lemon, 403

US. at 612-613 (citations omitted). Under the third prong of

Lemon and its progeny, the Court examines whether State

involvement or monitoring of religious programs is excessive

or pervasive. “[S]tate surveillance” that is “comprehensive,

discriminating, and continuing” violates the Establishment

Clause. Mueller, 463 U.S. at 403 (quoting Lemon, 403 U.S. at

619). “The intrusion of government into religious schools

through grants, supervision, or surveillance may result in

establishment of religion in the constitutional sense when what

the State does enthrones a particular sect for overt or subtle

propagation of its faith.” Lemon, 403 U.S. at 634 (Douglas, J.,

concurring). In Lemon and Walz, the Court characterized this

concept as “entanglement.” See id.; Walz, 397 U.S. at 674.

In Comm. for Pub. Educ. & Religious Liberty v. Nyquist,

413 U.S. 756 (1973), this Court applied the Lemon test

and held unconstitutional a New York program whose essential

components matched those of the Ohio voucher program.

Like the Ohio program, the New York program awarded tuition

reimbursements to low-income parents of children attending

private schools. Nyquist, 413 U.S. at 785-86 (“Whether the grant

is labeled a reimbursement, a reward, or a subsidy, its substantive

impact is still the same.”). As in Ohio, the vast majority of

schools eligible for participation were sectarian. /d. at 768. Since

parents in the Nyquist program paid the schools, there was no

restriction on the private schools’ use of the tuition

reimbursement funds. The Court found that there was

“no endeavor to guarantee the separation between secular and

religious educational functions and to ensure the State financial

aid supports only the former.” /d. at 783 (quoting Lemon, 403

U.S. at 613) (internal quotation omitted).

The Court had no occasion to assess the Nyquist program

under the excessive entanglement prong, having found the

program to be unconstitutional under the second Lemon prong.

Id. at 794. The Nyquist decision did, however, communicate

the Court’s fears — relevant to this matter — that “apart from

any specific entanglement of the State in particular religious

programs, assistance of the sort here involved carries grave

potential for entanglement in the broader sense of continuing

political strife over aid to religion.” Jd.°

This Court’s recent jurisprudence continues to recognize

the dangers of excessive entanglement between government and

religion. This Court applied the Lemon test in Agostini and

assessed whether “New York City’s Title I program resulted in

an excessive entanglement between church and state.” 521 U.S.

at 232. The Court found in Agostini that “[w]hether a

government aid program results in such an entanglement has

consistently been an aspect of our Establishment Clause

analysis.” Id. (emphasis added). The political entanglement

analysis has been applied both as “a factor separate and apart

from effect” in the Lemon test and as “an aspect of the inquiry

into a statute’s effect.” Jd. at 232-33.

Under the doctrine of stare decisis, this Court should

hesitate before abandoning the excessive entanglement test for

scrutinizing state actions impinging on religious activity. As the

Court has held repeatedly, “While stare decisis is not an

inexorable command, particularly when we are interpreting the

Constitution, even in constitutional cases, the doctrine carries

such persuasive force that we have always required a departure

6. In Mueller, the Court stated that its analysis of political

divisiveness would be “confined to cases where direct financial

subsidies are paid to parochial schools or to teachers in parochial

schools.” 463 U.S. at 403 n.11. As discussed supra pp. 8-9, although

the voucher funds are nominally payable in the first instance to the

parents of voucher program students, this is a mere formalism to

disguise what is in substance a direct payment to the religious schools.

from precedent to be supported by some special justification.”

Dickerson v. United States, 530 U.S. 428, 443 (2000) (internal

quotations and citations omitted). There is no “special

justification” to abandon the examination of excessive

entanglement required by Lemon and its progeny, including

Nyquist and Agostini.

B. Ohio’s Voucher Program Causes Excessive

Entanglement Between The State and Religious

Schools Because Administrative Enforcement of

Ohio’s Viewpoint Discrimination Provisions

Inevitably Requires The State To Evaluate And

Interfere With Religious Doctrines.

“The allocation of public funds is invariably accompanied

by limitations and restrictions on the use of such funds, in order

to insure that the legislative intent is satisfied.” Pub. Funds for

Pub. Sch. v. Marburger, 358 F. Supp. 29, 38 (D.N.J. 1973),

aff'd mem., 417 U.S. 961 (1974). Here, as in Marburger,

“{hjaving imposed such limitations and restrictions, the State

must enforce them.” Jd. Therein lies the impermissible

entanglement. As the Court noted in Rosenberger, for a state

body “to inquire into the significance of words and practices to

different religious faiths, and in varying circumstanc -s by the

same faith . . . would tend inevitably to entangle the State with

religion in a manner forbidden by our cases.” 515 U.S. at 845

(internal citation and quotation omitted). The speech-prohibitive

provisions of Ohio’s voucher law require just such an inquiry.

Under the Ohio statutory scheme, “[t]he state superintendent

shall revoke the registration of any school if, after a hearing,

the superintendent determines that the school is in violation of

any of the provisions of division (A) of this section,”

ORC § 3313.976(B), including the provisions relating to

viewpoint advocacy. Thus, the statute contemplates both

(a) a threshold determination by a state official, and (b) continual

monitoring by state officials of the appropriateness of the content

of the teachings advanced by the schools that accept vouchers.

In Lemon itself, the Court held that less intrusive

involvement by the State in a religious school’s affairs than that

present here gave rise to impermissible entanglement. In Lemon,

the statute providing for supplementation of the salaries of

teachers of secular subjects required only a review of the subject

matter that was taught. See 403 U.S. at 607-08 (“[T]he records

of the school in question must be examined in order to assess

how much of the expenditure is attributable to secular education

and how much to religious activity.”). The Court nevertheless

found excessive entanglement because “the government’s post-

audit power to inspect and evaluate a church-related school’s

financial records and to determine which expenditures are

religious and which are secular creates an intimate

and continuing relationship between church and state.” /d. at

621-22.

Ohio’s statute restricting the content of teaching by schools

participating in the voucher program requires entanglement in

an even more sensitive area. Ohio must do more than determine

whether teaching is religious. It must determine whether the

educational message — including an educational message

dictated by the school’s religious orientation — constitutes the

teaching of hatred or advocacy of violations of law, requiring

disqualification of the school from participation in the voucher

program.

The concern here is not purely hypothetical. Religions have

a long history of “advocat[ing] or fostering unlawful behavior.”

See, e.g., United States v. Seeger, 380 U.S. 163, 186-87 (1965)

(noting Quakers’ refusal to participate in armed conflict);

Pierson v. Ray, 386 U.S. 547, 552-53 (1967) (noting arrest

of Episcopal clergymen for violating “whites only”

ordinance). This Court’s cases are replete with examples

of religious faiths espousing principles contrary to law.

See, e.g., Employment Div., 494 U.S. 872 (Native American

religion requiring use of controlled substance); United States

v. Lee, 455 U.S. 252 (1982) (Amish employer’s objection to

collection of Social Security taxes on religious grounds);

Prince v. Massachusetts, 321 U.S. 158 (1944) (religious

principles requiring children to distribute literature in

violation of child labor laws); Reynolds, 98 U.S. 145

(Mormon practice of polygamy). Moreover, it is not difficult

to imagine, especially at this moment, claims that faiths are

teaching “hatred” of nonbelievers. See, e.g., Marc Fisher,

Muslim Students Weigh Questions of Allegiance, Wash. Post,

Oct. 16, 2001, at B1 (principal of Muslim school in Potomac,

Maryland advocated that Israel, “with its cursed population

... is founded on a racist, warped, cancerous ideology which

says Jews are better than all other people.”) (alteration in

original).

Although this Court has recently downplayed

the importance of “political divisiveness” in evaluating

entanglement,’ it is difficult to imagine a more divisive

activity than a state’s determination whether religious

doctrine teaches hatred or advocates lawlessness. Ohio’s

Superintendent of Public Instruction is required under the

statutory scheme to decide whether a Jewish school’s

discussion of the concept of the “chosen people” or a Christian

7. Mitchell, 530 U.S. at 825-26 (plurality opinion). But see id.

at 872 n.2 (Souter, J., dissenting, joined by Stevens and Ginsburg,

JJ.)

The Court may well have nioved away from considering

the political divisiveness threatened by particular

instances of aid as a practical criterion for applying the

Establishment Clause case by case, but we have never

questioned its importance as a motivating concern behind

the Establishment Clause, nor could we change history

to find that sectarian conflict did not influence the

Framers who wrote it.

school’s discussion of the role of Jews in the trial of Jesus “teach

hatred of any person or group on the basis of . . . religion.” She

for example, engaging in civil disobedience in the course of

opposing abortion or refusing compulsory military service

“advocate[s] or foster{s] unlawful behavior.”* As in Marburger,

the content provisions in the Ohio statute make it “necessary to

continually review the content of a teacher’s instruction in order

to see that it adheres to the restrictions imposed by the statute.”

Marburger, 358 F. Supp. at 40.

Moreover, the statute’s contemplation of a “hearing,”

at which alleged infractions would be evaluated prior to

revocation of registration, underscores the impropriety of the

level of government control and oversight present here.

Presumably there would be testimony taken and determinations

of credibility regarding the nature and permissibility under the

statute of disfavored religious beliefs being conveyed to students.

The Court equated that type of process with impermissible

entanglement in NLRB v. Catholic Bishop of Chicago, 440 U.S

490 (1979), in which it held that the NLRB could not exercise

jurisdiction over lay faculty members at church-operated

schools. The Court said, with respect to charges of unfair labor

practices in which the school responded that the challenged

action was mandated by religious creed:

The resolution of [unfair labor practice] charges by

the Board, in many instances, will necessarily

involve inquiry into the good faith of the position

asserted by the clergy-administrators and its

relationship to the school’s religious mission. It is

not only the conclusions that may be reached by the

Board which may impinge on rights guaranteed by

8. The problematic nature of such monitoring is compounded

by the vagueness inherent in the statutory language, which gives

administrators charged with enforcing the program much opportunity

for arbitrary, subjective, and discretionary application.

the Religion Clauses, but also the very process of

inquiry leading to findings and conclusions.

Id. at 502.

As this Court has recognized in the past, this is the very

sort of entanglement of church and state that the Framers

intended the Establishment Clause to guard against. Cf’ Meek v.

Pittenger, 421 U.S. 349, 372 (1975) (“To be certain that auxiliary

teachers remain religiously neutral, as the Constitution demands,

the State would have to impose limitations on the activities of

auxiliary personnel and then engage in some form of continuing

surveillance to ensure that those restrictions were being

followed.”).° Yet, Ohio mandates such entanglement as part of

its voucher program.

C. The Intrusion Into Doctrinal Matters Here

Distinguishes This Program From The Limited

Neutral State Regulatory Oversight That This

Court Has Permitted.

To be sure, the Court has from time to time held that

subjecting a religious body to a generally applicable regulatory

regime does not create an impermissible level of entanglement.

For example, “[t}he Establishment Clause does not exempt

religious organizations from such secular governmental activity

as fire inspections and building and zoning regulations.”

Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290,

305 (1985) (citing Lemon, 403 U.S. at 614). With regard to the

specific regulatory requirements at issue in Alamo, the Court

reasoned, “the recordkeeping requirements of the Fair Labor

9. Meek was overruled by Mitchell “[t)o the extent that

Meek . . . conflict{[s] with [Mitchell's] holding.” Mitchell, 530 U.S. at

835 (plurality opinion). But Mitchell recognized that an inquiry

into “whether the aid creates an excessive entanglement between

government and religion” remains one of the “general principles used

to determine whether government aid violates the Establishment Clause.”

Id. at 844-45 (O’Connor, J., concurring).

Standards Act, while perhaps more burdensome in terms of

paperwork, are not significantly more intrusive into religious

affairs.” Jd. at 305-06. Key to the Court’s conclusion in this

regard was that the matters covered by the Fair Labor Standards

Act were “routine and factual inquiries” and that “[t]hese

requirements apply only to commercial activities undertaken

with a ‘business purpose,’ and would therefore have no impact

on petitioners’ own evangelical activities.” Jd. at 305. See also

Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226,

253 (1990) (holding, in the context of a challenge to a statute

requiring public schools that established an open forum to give

access to religious speech, that a public school teacher’s

“custodial oversight of the student-initiated religious group,

merely to ensure order and good behavior, does not

impermissibly entangle government in the day-to-day

surveillance or administration of religious activities”);

Hernandez v. Comm 'r, 490 U.S. 680, 696-97 (1989) (“[R]outine

regulatory interaction which involves no inquiries into religious

doctrine, no delegation of state power to a religious body, and

no ‘detailed monitoring and close administrative contact’

between secular and religious bodies does not of itself violate

the nonentanglement command.”’) (citations omitted).

In Lemon itself, Justice Douglas’s concurring opinion

recognized that “we have never faced, until recently, the problem

of policing sectariar schools. Any surveillance to date has been

minor and has related only to the consistently unchallenged

matters of accreditation of the sectarian school in the

State’s school system.” Lemon, 403 U.S. at 631 (Douglas, J.,

concurring).

In Ohio’s program, the level of entanglement is qualitatively

different than in Alamo, Mergens, and Hernandez, and moves

far beyond the minor, accreditation-related surveillance noted

by Justice Douglas in Lemon. The State of Ohio engages in

direct supervision, not over undeniably secular matters such as

record-keeping or fire inspections, but over what tenets and

doctrines the schools are teaching their students.

As far as religious schools are concerned, these inquiries

necessarily bring the state directly into issues of curriculum

content interwoven with religious concepts and ideals.

See Lemon, 403 U.S. at 635 (Douglas, J., concurring) (““It is a

commonplace observation that in the parochial school religion

permeates the whole curriculum, and is not confined to a single

half-hour period of the day.’” (quoting Joseph H. Fichter,

Parochial School: A Sociological Study 86 (1958))).

Thus, the voucher program, which holds out the promise

of government funding, entails an unprecedented scope of

governmental involvement in the operation, including the

teachings and curricula, of religiously affiliated schools. As

Justice Brennan noted in an analogous context, “[p]Jolicing the

content of courses, the specific textbooks used, and indeed the

words of teachers is far different from the legitimate policing

carried on under state compulsory attendance laws or laws

regulating minimum levels of educational achievement.” Lemon,

403 U.S. at 651 (separate opinion of Brennan, J.). For this reason,

the voucher program crosses the line from permissible

neutral regulatory oversight into unconstitutional pervasive

entanglement in matters of religious belief and doctrine.

IV. THE FLAWS IN THE OHIO VOUCHER PROGRAM

CANNOT BE CURED BY SEVERING THE

PROVISION BARRING REGISTRATION OF

SCHOOLS THAT TEACH HATE OR ADVOCATE

UNLAWFUL BEHAVIOR.

The Court cannot solve the constitutional infirmities with

the Ohio voucher program by severing section 3313.976(A)(6).

Severability analysis is only appropriate where one discrete

provision or aspect of a statute is unconstitutional and the

statute would otherwise pass muster. That is not the case here.

The problems highlighted by the viewpoint discrimination

contained in section 3313.976(A)(6) merely reflect the

underlying flaw in the voucher program. As discussed above,

the State felt compelled to restrict the message taught in voucher

program schools — and that restriction survives scrutiny under

the Free Speech Clause — only because the State recognized

that it was providing its stamp of endorsement on the message

of voucher program schools, including sectarian schools.

Removing the viewpoint restriction from the statute does not

eliminate that fundamental flaw in the voucher program itself.

Ohio’s voucher program violates the Establishment Cl:use

because the program creates the perception of a government

imprimatur for the message taught in religious schools.

Removing only one symptomatic provision would not cure the

underlying defect.

Moreover, even if a severability analysis were in order, it

would not be appropriate to sever the provisions at issue and

leave the statute otherwise standing. Severance would be

improper under Ohio law because the provisions in question

are “so connected with the general scope of the whole as to

make it impossible to give effect to the apparent intention of

the Legislature if the clause or part is stricken out.” State v.

Hochhausler, 668 N.E.2d 457, 466-67 (Ohio 1996) (internal

citations and quotation omitted). This is true even where, as

here, there are statutory severability provisions. ORC § 1.50

(general severability clause); 1999 Ohio Law Files 37, Section

54 (severability clause contained in the voucher statute).

See State ex rel. Squire v. City of Cleveland, 82 N.E.2d 709,

725 (Ohio 1948) (“Although consideration must be given to

the fact that an act contains a separability clause, such a clause

is not conclusive. . . .”).

have created the voucher program if it knew that the result would

be to allow the possible funding of schools that teach hate or

advocate unlawful activity. See State ex rel. Herbert v. Ferguson,

52 N.E.2d 980, 984 (Ohio 1944) (holding that severance occurs

only if the remaining “statute is still capable of fulfilling the

apparent legislative intent”). The text and structure of the statute

make clear that Ohio did not intend to fund a voucher program

if that meant the possibility of funding schools that meet all of

the objective eligibility requirements, but teach hate or advocate

unlawful conduct.'® It would be an extraordinary exercise of

judicial power effectively to institute such a program without

an express indication from the legislature that it foresaw and

intended such a possible result.

Four Justices of this Court recently observed, in the context

of a statute (like this one) providing funding but restricting

activities by those receiving the funds, that “when an ‘excepting

proviso is found unconstitutional the substantive provisions

which it qualifies cannot stand,’ for ‘to hold otherwise would

be to extend the scope of the law . . . so as to embrace [situations]

which the legislature passing the statute had, by its very terms,

expressly excluded.’” Legal Servs. Corp., 531 U.S. at 561

(Scalia, J., dissenting, joined by Rehnquist, O’Connor, and

Thomas, JJ.) (quoting Frost v. Corporation Comm'n, 278 U.S.

515, 525 (1929))."' To do so would “rewrite [the] statute and

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

addressed the severability of a different section of a former version of

the voucher program before ultimately holding the entire statute

unconstitutional under the “one subject” rule. That discussion is, in any

case, inapposite. It concerned a provision of the statute that enabled

sectarian schools to give admissions preference to students who belonged

to the religious group affiliated with the school. See id. at 210. It is one

thing to say that the legislature would have intended to have the program

go forward without that provision, since the result is simply that students

have more equitable access to the program. It is quite another to rewrite

the statute to obligate the state to fund schools meeting the objective

eligibility requirements for the program even if those schools teach hate

or unlawful behavior.

11. Severability of state law provisions is a question of state

law. See, e.g., Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam).

Nevertheless, there is no meaningful difference between Ohio’s

severability standard and that applied by this Court in cases, such as

Legal Services Corp., involving federal statutes.

give it an effect altogether different” from that intended by the

legislature. Jd. at 562 (alteration in original) (quoting Railroad

Ret. Bd. v. Alton R. Co., 295 U.S. 330, 362 (1935)). Section

3313.976(A)(6) is a similar “excepting proviso”; the Ohio

legislature’s funding of the voucher program and its prohibition

on funds going to schools advocating hate or law violations are

“conditions, considerations and compensations for each other

that cannot be severed” without the substantial likelihood of

violating the intent of the Ohio legislature. Legal Servs. Corp.,

531 U.S. at 560 (internal quotation and citation omitted). Thus,

the Court must invalidate the statute in its entirety.

CONCLUSION

The decision of the Sixth Circuit should be affirmed.

Respectfully submitted,

GEOFFREY F. ARONOW

STANLEY GELLER Counsel of Record

President JONATHAN I. GLEKLEN

NATIONAL COMMITTEE For JEFFREY K. FRANCER

PuBLic EDUCATION AND Rosert J. KATERBERG

RELIGIOUS LIBERTY ARNOLD & PorTER

P.O. Box 586, F.D.R. Station § 555 12th Street, N.W.

New York, New York 10150 Washington, D.C. 20004

(212) 486-4590 (202) 942-5000

Attorneys for Amicus Curiae

ia on

Or ns

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