Amicus Curiae Brief — Zelman v. Simmons-Harris

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No, 00-1751, 00-1777, 00-1779

a

Supreme Court, U.S.

IN THE

Supreme Court of the United S

SENEL TAYLOR, JOHNNIETTA MCGRADY, CHRISTINE SUMA,

ARKELE WINSTON, AND AMY HUDOCK,

&

SUSAN TAVE ZELMAN, SUPERINTENDENT

OF PUBLIC INSTRUCTION,

&

HANNA PERKINS SCHOOL, ef a/.,

Petitioners,

Vv.

Doris SIMMONS-HARRIS, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

AMICI CURIAE BRIEF FOR

THE CENTER FOR EDUCATION REFORM, et ai.

IN SUPPORT OF PETITIONERS

Of Counsel ROBERT A. DESTRO

JOSEPH E. SCHMITZ Counsel of Record

GREGORY S. WALDEN MARSHALL J. BREGER

MATTHEW F. STOWE SCHOOL OF LAW

PATTON BocGs LLP CATHOLIC UNIVERSITY

2550 M Street NW OF AMERICA

Washington, D.C. 20037 3600 John McCormack Road, N.E.

(202) 457-6135 Washington, D.C. 20064

(202) 319-5140

Counsel for Amici Curiae

The Center for Education Reform, Inc., et al.

re et ne eee mR SR

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WasninGTON, D.C. 20001

| 54 PP

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TABLE OF CONTENTS

Cae FO ED ctrceictersencscsscsnscenssoorsscssccscccees iil

INTERESTS OF AMICI CURIAE..................sscsssssssssssessees l

SUMMARY OF ARGUMENT. ......corcccsoccosccssscossesseosseocseeee 5

IIT ccs pensassniccininincitncieeiecsminencnadttnenpersboenensncen 7

ITD eiseettnirtetptinterinninptnnnimnineiannnictninninimsmmennes 14

I. FACTUAL AND SOCIAL CONTEXT IS

CRUCIAL TO A _ DETERMINATION

THAT THIS SCHOLARSHIP PROGRAM

"GREP PAPAS TUITE s escccescncsncccsccnssccseteseeees 14

A. Plaintiffs in an Establishment Clause

Case Bear the Burden of Proving.

Every Factual Element of Their

Claim, But Failed To Do So ...................... 14

B. The Decisions Below are "Clearly

Erroneous” as a Matter of Fact, and

I aie 17

I. THE EQUAL PROTECTION AND

ESTABLISHMENT CLAUSES REQUIRE

A FACTUAL INQUIRY BEFORE THIS

REMEDIAL LEGISLATION IS

A. The Decisions Below Inhibit Ohio's

Ability to Meet Its Remedial

Obligations Under Federal and State

B. The Decisions Below’ Are

Inconsistent with the Principle of

Equal Protection of the Laws

Embodied in the First and Fourteenth

PIII, - snticnnicccidtegnatescrinnveniatinisiaatian! 29

Sa Partanhicinssitmidistasininiininidsntiajisinanntasesémantioniail 30

***

TABLE OF AUTHORITIES

CASES Page

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)............ 22

Agostini v. Felton, 521 U.S. 203 (1997) 0.0.0.0... 7, 16, 30

Bagley v. Ravmond Sch. Dep't, 728 A.2d 127 (Me.),

cert. denied, $528 U.S. 947 (1999) oo... cee ceceeeees 15,17

Board of Educ. of the Kirvas Joel Village Sch.

Dist. v. Grumet, 512 U.S. 687 (1994) ..00...cccccccccceceees 24, 29

Bose Corp. v. Consumers Union of United States, Inc.,

CE 23

Bowen v. Kendrick, 487 U.S. 589 (1988) .......... 7, 16, 23, 30

Brown v. Board of Educ., 347 U.S. 483 (1954) ............c00 6

Campbell v. Manchester Bd. Of Sch. Dirs., 641 A.2d

ee i artetaterinentinegtinaniuninecctninentesteenmmnnemanmans 15

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995)........... palenbisianiaenengpecsentiannaeaes 14, 24

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

TT ee 14

Church of Scientology Flag Serv. Org., Inc. v. City of

Clearwater, 2 F.3d 1514 (11 Cir. 1993) .........scssseeesswes 16

EP EE A

iv

DeRolfe v. State, 677 N.E.2d 733 (Ohio 1997), reh'g

and clarification, 678 N.E.2d 886 (Ohio 1997),

clarification,699 N.E.2d 518 (Ohio 1998)(DeRolfe J),

aff'd in part, 728N.E.2d 993 (Ohio 2000)................ 9, 18, 25

DeRolfe v. State, 728 N.E.2d 993 (Ohio 2000)

SI Cl cipicienncinnncenereanaretnesmegciiaiiinaiiedininintemmenn 10

DeRolfe v. State, 754 N.E.2d 1184(Ohio 2001)

SD Gate ncrcncicinniptntintainidunnniiianinnbinppincptniaes 10

Edwards v. Aguillard, 482 U.S. 578 (1987) .............c000000 15

Equal Open Enrollment Ass'n v. Board of Educ. of the

Akron City Sch. Dist., 937 F. Supp. 700 (N.D. Ohio

SERED esccecozescenzencensusnncnmnsennesvensintasippranyrepsenapesspuonasesapesstsuseees 19

Gillette v. United States, 401 U.S. 437 (1971)..............0000 15

Good News Club v. Milford Cent. Sch., 121 S. Ct.

| Te. ae SS 16, 23

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557 (1995) ............cccccceeeeeeeenees 23

Jackson v. Benson, 578 N.W.2d 602 (Wis.), cert. denied,

i 8 ENE NE a AE Cee ee 15

Kotterman v. Killian, 972 P.2d 606 (Ariz.), cert. denied,

RE RE ND ee ee 15

Lemon v. Kurtzman, 403 U.S. 602 (1971) ......... 7, 14, 16, 30

Lynch v. Donnelly, 465 U.S. 668 (1984)...........cccccccceeceeees 14

Malcom-Smith v. Goff, No. CV-342589, 1999 WL 961495

(Ohio App. Oct. 21, 1999) .....cccccccscossesssssssecsssssseseeeeeeeeee 10

McDaniel v. Paty, 435 U.S. 618 (1978)........cccccceeseeeeeeees 30

McGwinn v. Board of Ed. Of Cleveland City Sch. Dist.,

69 N.E.2d 391 (Ohio Com. Pl. 1945), aff"d, 69 N.E.2d

SEE EE EEA 8

Mitchell v. Helms, 530 U.S. 793 (2000).......... 16, 24, 29, 30

Mixon v. State of Ohio, 193 F.3d 389 (6" Cir. 1999)........10

Mueller v. Allen, 463 U.S. 388 (1983) .........-.--s0ssv-ssessnes0ees 29

Palazzolo v. Rhode Island, 121 S. Ct. 2448 (2001)........... 14

Philadelphia Newspapers, Inc. v. Hepps,

i 23

Reed v. Rhodes, 179 F.3d 453 (6™ Cir. 1999) ..............0--se-0 5

Reed v. Rhodes, 934 F. Supp. 1533 (N.D. Ohio 1996) ..9, 10

Reed v. Rhodes, No. C73-1300, 1992 WL 80626

NF ee 8,12

Reed v. Rhodes, 422 F. Supp. 708 (N.D. Ohio 1976).......... 8

Ritchey Produce Co. v. Ohio Dep't of Admin. Servs.,

Ce 18, 25

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

ee, Ge rinnncescntbibdtetnetncreneemaniiniemennessee 14, 24

Shaw v. Reno, 509 U.S. 630 (1993) ..........ccccccecereeeneeneeeeees 29

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

Ee eee 6, 11, 14, 25, 26, 27

Strout v. Albanese, 178 F.3d 57 (1" Cir.), cert. denied,

ls Ce tits inithieniiniirnrecacinahiaeitinataaaitiasinial tanita 15,17

Swann v. Charlotte-Mecklenburg Bd. of Educ.,

ES ARES in ae a Sa 18

United States v. Playboy Entertainment, Inc, 120 S. Ct.

ea icierepetiencnenmenietatilitaciiiiinatiatillatdaiamtiiddaiateeinaits 23

Village of Arlington Heights v. Metropolitan Hous. Dev.

RR ES ae 15

Washington \. Davis, 426 U.S. 229 (1976).........ccccccccceeeeee 29

White v. Turfway Park Racing Ass'n, 909 F.2d 941

SP Ce series Sith ieeienntecienbactindnsnietietiaiaseniaehini 22

Wright v. Rockefeller, 376 U.S. 52 (1964).........ccccccceceeeoees 29

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ...............c0c00000 14

Zobrest v. Catalina Hills Sch. Dist., 509 U.S. 1

eee EN ee 30

SR GG, CII Bsa roceereccntacicctictnctoventennccmnnctctnicei passim

es aa passim

RS Ce 18, 25, 28

vii

STATUTES

Ohio Rev. Code Ann. § 3313.98 (Anderson

Ohio Rev. Code Ann. § 3313.974-.979

EE cncenisinctinhininegrnceneismnstretpensmeenestescesscenssammnenten 20

Ohio Rev. Code Ann. § 3313.981 (Anderson

TIT cos nicearesinc ca pinasipenasidimpaeigetnentenmnessescennaatanaes 20

RULES

Pa, Be Get, Fs GERD ceceesrnsssisseameneneyrnssrsnscnnssnnscsnssccsessscesseces 22

OTHER AUHTORITIES

General Accounting Office, School Vouchers: Publicly

Funded Programs in Cleveland and Milwaukee (Aug. 31,

i nnciisindiitenncenneti ti dianisiadidiainmtmenneptesmneanrneiimmnenariene 26

Policy Note, Private School Competition Raises Salaries of

Public School Teachers, Buckeye Inst. for Public Policy

SA AE TTS 25

vill

2000 Ohio State Dep't of Educ. Cleveland City School

District Report, at http://odevax.ode.state.oh.us/Irc_ www

EE ET EES ie 6,11

Jeanne Allen, The School Reform Handbook (Center for

Education Reform, Washington, D.C. 1995)..............-.0-0+« 9

Michael S. Ariens & Robert A. Destro, Religious Liberty

in A Pluralistic Society (Carolina Academic Press 1996) .30

Jay P. Greene, The Racial, Economic, & Religious Context

Of Parental Choice in Cleveland (1999)............... 12, 24, 27

Interview with Caroline Hoxby, Battle Over School

Choice: Competition, School Choice & Charter Schools,

PBS Frontline (May 23, 2000) .0............:.cccccsseesseeereeees 24, 28

Henry P. Monaghan, Constitutional Fact Review, 85

, Ga, ee icacecetaiRicininsiensecssnctnettinntnccnnminanen 23

Diane Ravitch, School Reform, Past, Present, and Future,

51 Case West. L. Rev. 187 (2001).......ccccscccrccesssesscccssosssess 10

Beth Reinhard, Cleveland: A Study in Crisis, Education

Week, Jan. 8, IDB .....ersesssverrerssseessnessnesensersssenssenesenessnecsses 10

Scott Stephens, School Board Unveils Steps to Curb

Violence, Cleveland Plain Dealer, Oct. 29, 1994................. 9

Richard Vedder & Joshua Hall, Private Schools & Public

School Teacher Salaries, Ohio University (Feb. 1999).....25

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

In the Supreme Court of the United States

Senel Taylor, Johnnietta McGrady, Christine Suma, Arkele

Winston, and Amy Hudock

&

Susan Tave Zelman, Superintendent of Public Instruction,

&

Hanna Perkins School, 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

AMICI CURIAE BRIEF FOR

THE CENTER FOR EDUCATION REFORM, et al.

IN SUPPORT OF PETITIONERS’

INTERESTS OF AMICI CURIAE’

The Center for Education Reform (“CER”) is a

national, independent, non-profit advocacy organization

founded in 1993 to advance substantive reforms in public

' Pursuant to Supreme Court Rule 37.6, no person other than Counsel

identified on the cover and the staff of The Center for Fducation

Reform participated in authoring this brief. No entity other than amici

and their counsel provided financial support for this brief.

? The consent of the parties to the filing of this amicus curiae brief has

been obtained and filed with the Clerk of the Court.

2

education. CER works with parents and _ teachers,

community and civic groups, policymakers, grassroots

leaders, and all other interested citizens to ensure that ideas

critical to education reform are identified, understood and

implemented. CER is an active broker in bridging policies

and practices through coalition building and by working

with diverse constituencies to implement reforms that

improve access, accountability, and assessment, and that

help restore education excellence and equity to America’s

public schools.

The American Legislative Exchange Council is the

nation's largest bipartisan association of state legislators.

Its mission is to discuss, develop, and disseminate public

policies that expand free markets, promote economic

growth, limit government, and preserve individual liberty.

The Arizona School Choice Trust was founded on

the philosophy that parents should have a choice in their

children's education, and provides tuition grants for

children from disadvantaged families to attend any private

school in Arizona.

California Parents for Educational Choice, the

Coalition for Parental Choice in Education

(Massachusetts), the Education Excellence Coalition

(Washington), Floridians for School Choice, the Illinois

Coalition for Parental Choice, the Maine School Choice

Coalition, and United New Yorkers for Choice in

Education are non-profit, largely grassroots organizations

dedicated to the right of parents to choose the best

education for their children and to promoting meaningful

school choice programs.

The Center for Equal Opportunity (“CEO”) is a

District of Columbia non-profit organization whose main

purpose is to study issues concerning race and ethnicity.

3

CEO has participated actively in a wide variety of civil” ~

rights cases.

The Center for Public Justice is a national nonprofit

organization that has been making the case for justice in the

reform of educational governance and funding for nearly 25

years by advocating equal funding of all students in any

licensed school, whether publicly governed or independent,

secular or religious.

Children First: CEO Kansas is the state affiliate of

the national Children First: CEO America scholarship

program for underprivileged students. Their purpose is to

assist in equalizing educational opportunities for low-

income families by offering options normally denied to

them because of cost.

Citizens for Educational Freedom (CEF) is a

national, grassroots organization with its headquarters-in_—

Missouri. Founded in 1959, CEF is dedicated to supporting

parents’ rights to choose schools for their own children.

The Educational Freedom Foundation is a charitable

foundation affiliated with CEF and serves to educate the

public about parental rights in education and school choice

issues.

The Commonwealth Foundation of Pennsylvania is

an independent, non-partisan, non-profit public policy

organization committed to advocating policies that expand

choice and opportunity in education, while also presenting

innovations and ideas aimed at reinvigorating the current

system and empowering parents and taxpayers.

Excellent Education for Everyone is a coalition of

New Jersey citizens that works to enable public schools to

better educate children by subjecting their schools to the

competitive pressures of school choice, believing that

competition will improve school performance, provide

4

accountability, and assure that all children receive a quality

education.

“I Have A Dream” Foundation of Washingion D.C.

is a non-profit education foundation serving at-risk inner

city youth. The Foundation supports school choice because

it will provide a better education and a better chance for a

bright, successful future for these youth.

The Hispanic Council for Reform and Educational

Options is dedicated to improving educational outcomes

for Hispanic children by empowering families to access all

educational options and to be an agent for educational

equity and quality.

_ Minnesota Business Partnership (‘MBP’) is a non-

profit, non-partisan public policy organization whose

members are leaders of 103 of Minnesota’s largest

companies. Since its founding in 1977, MBP’s mission has

been to develop and advocate public policy that strengthens

Minnesota’s economy and improves the quality of life.

Improving the education system is a critical component of

that mission.

The Nevada Manufacturers Association (“NMA”)

represents manufacturers in Nevada. The Pennsy!vania

Manufacturers Association (“PMA”) represents

manufacturers in Pennsylvania and other Midwestern and

Mid-Atlantic states, including Ohio. Associated Industries

of Vermont (“AIV”) represents manufacturers and other _

businesses in Vermont. The NMA, PMA, and AIV have a

long-term interest the development of a skilled, educated,

and effective workforce.

The Texas Justice Foundation is a non-profit, public

interest, litigation foundation that works in the area of

education law and school choice, representing parents and

their fundamental right to direct the upbringing and ~

5

education of their children, a right recognized by this Court

since 1923.

The Toussaint Institute Fund helps minority parents

find and access good schools for their children in the public

and private sectors, and also works with communities to

build better schools.

The Urban League of Miami is a non-profit

organization dedicated to enabling Blacks to reach their

potential and exercise their rights as human beings. Public

education reform is a priority of the Urban League.

Beatrice D. Fowler of the Brevard County School

Board (Florida) and Kyle Persinger of the Marion School

Board (Indiana), representing themselves, are members of

bodies charged with providing quality education for

children at all socio-economic levels.

SUMMARY OF ARGUMENT

When the Ohio General Assembly first adopted the

Cleveland Scholarship and Tutoring Grant Program [“the

Scholarship Program”] in 1995, Cleveland’s school

children and their parents had been litigating desegregation

and education reform issues for more than a generation.

See Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999). By the

time the Scholarship Program was reenacted in 1997, it was

clear that the effort to provide Cleveland’s children with an

adequate education untainted by racial discrimination had

failed. Notwithstanding the good faith efforts of the District

Court, the Ohio Supreme Court, the Ohio General

> Reed v. Rhodes was filed in 1973. The Sixth Circuit approved the

District Court’s 1996 finding of unitary status with respect to student

assignments in 1999. The Cleveland City School District complied with

the last of its obligations under the consent decree on June 30, 2000.

The litigation is chronicled in nearly forty published opinions in the

federal courts, two opinions of the Ohio Supreme Court, and several

opinions of the Ohio Court of Appeals.

6

Assembly, the State Board of Education, and the Mayor of

Cleveland, the Ohio Department of Education rated the

Cleveland City School District [CCSD] an “academic

emergency.”

. The Ohio Supreme Court recognized the relevance of

these facts when it rejected Respondents’ Establishment

Clause challenge to the Scholarship Program. In its view,

“(t]he General Assembly took extraordinary measures to

attempt to alleviate an extraordinary situation.” Simmons-

Harris v. Goff, 711 N.E.2d 203, 214 (Ohio 1999). The

Sixth Circuit, by contrast, explicitly refused to look at the

legal and social context. Where the Ohio Supreme Court

saw “a general program[, the] benefits [of which] are

available irrespective of the type of alternative school the

eligible students attend,” Goff, 711 N.E.2d at 209, the Sixth

Circuit saw a sham designed to provide State financing for

religious schools. The actual design of Ohio’s school

financing program (of which the Scholarship Program is

but a small part), the actual reasons why suburban districts

do not accept inter-district Scholarship Program students,

and the actual choices available to Cleveland’s parents and

children were, in its view, “at best irrelevant” to the

Establishment Clause analysis. Simmons-Harris v. Zelman,

234 F. 3d 945, 958-959 (6th Cir. 2000) (emphasis added).

Amici submit that this Court’s holdings under the

Establishment, Due Process, and Equal Protection Clauses

show that evidence outlining the purpose, operation, and

effects of a specific education reform effort is just as

essential to an inquiry under the Establishment Clause as it

would be to a review of that reform under Brown v. Board

of Education, 347 U.S. 483 (1954), and its progeny.

* See 2000 Ohio State Dep’t of Educ. Cleveland City Sch. Dist. Rep.,

http://odevax.ode.state.oh.us/ Irc_ www/99_Dist/043786.pdf, at 2.

Ee eae Fe CE: SAE PE De EE a eT

REEDED 2 5 eR PU aC er

-

Respondents produced no “evidence in [this] record

that the [government] is in fact violating” the law. Agostini

v. Felton, 521 U.S. 203, 228 (1997). They neither offered

any proof that “the manner in which the statute is presently

being administered” raises questions concerning the

purpose and effect of the Cleveland Scholarship Program,

Bowen v. Kendrick, 487 U.S. 589, 621 (1988), nor did they

demonstrate that the General Assembly’s purpose was

other than to take positive steps to remedy the present and

future effects of racial discrimination by the Cleveland City

School District [CCSD]. Based on appearances alone, the

Sixth Circuit concluded that the Scholarship Program was

not an expansion of the choices available to Cleveland’s

long-suffering parents and children the General Assembly

intended, but rather a “government limitation of the

available choices to overwhelmingly sectarian private

schools.” 234 F.3d at 960 (emphasis added).

An even-handed reading of the history and operation

of the Cleveland Scholarship Program demonstrates that it

is materially different in its purpose, genesis, design,

operation, fiscal impact on parents and schools, and in its

overall effect from the program struck down in Committee

for Public Education v. Nyquist, 413 U.S. 756 (1973).

Respondents have not even proved that the Scholarship

Program “advances religion,” Lemon v. Kurtzman, 403 U.S.

602, 612-13 (1971), much less that advancement of

religion is the Program's "principal or primary effect." The

decision of the Sixth Circuit should be reversed.

INTRODUCTION

The background against which the State of Ohio

enacted the Cleveland Scholarship and Tutoring Grant

Program is unusual, if not unique. The Scholarship

Program is the direct outcome of an intensely fought,

politically bruising, and enormously expensive education

EX PR RP RS ve gC

SS aE a

8

reform effort on the part of Cleveland’s public school

children and their parents. That effort began years before

the plaintiffs in Reed v. Rhodes asked the federal courts to

desegregate the system, and it is safe to predict that those

efforts will continue in other fora until they are satisfied

that the State of Ohio is providing both equal and adequate

educational opportunities for ail of its children.

The crisis in which the CCSD finds itself is the logical

and inevitable outcome of policies and attitudes that divide

communities by race, ethnicity, religion, and class, and that

make the political compromises necessary to support far-

reaching educational reform difficult if not impossible. See,

e.g., McGwinn v. Board of Ed. of Cleveland City Sch. Dist.,

69 N.E.2d 391 (Ohio Com. P1., 1945) (action by Cleveland

taxpayers to prohibit free tuition for children residing on

land owned by the federal government), aff'd, 69 N.E.2d

381 (Ohio 1946). Nearly ten years ago, Chief Judge Frank

Battisti aptly summarized the situation in which the CCSD

finds itself today:

In Reed v. Rhodes, as in other things, a sense of

history is necessary for any comprehension of the

present and the future. ... Despite judicial rulings,

upheld on appeal, that the Defendants had engaged

in clear and intentional racial segregation, for more

than a decade they displayed a recalcitrance and

hostility toward the laws of the land ‘and the

remedial orders of this Court that not only

prevented progress in this case but also inflicted

grievous wounds on the community as a whole. Of

late, no one has been heard to assert that the schools

are operated in a satisfactory manner; to put it

another way, every voice laments the unsatisfactory

condition of the school district. This is the challenge

that the Defendants, state and local, must face.

a ES 7 aR

Ee SATE

9

Reed v. Rhodes, No. C73-1300, 1992 WL 80626 at *1

(N.D. Ohio, Apr. 2, 1992).

Structural Changes

The CCSD has tried virtually everything. The

desegregation plan opened up school assignments,

implemented non-discriminatory testing and tracking

procedures, required significant efforts to improve reading

scores, added magnet, charter, and vocational opportunities,

upgraded and reorganized transportation, implemented

stronger financial and management practices, desegregated

teacher and professional staff assignments, and provided

extra State funding. See Reed v. Rhodes, 934 F. Supp. 1533,

1551-52 (N.D. Ohio 1996). See also Scott Stephens, School

Board Unveils Steps to Cur Violence, Cleveland Plain

Dealer, Oct. 29, 1994, at 1B (noting that the School Board

took steps to curb rising violence in Cleveland schools);

Jeanne Allen, The School Reform Handbook, Ch. 7, p. 62

(Center for Education Reform, Washington, D.C. 1995)

(http://www.edreform.com/handbook/srhch7.htm) (noting

that the State of Ohio also introduced minimum standards

tests for graduating high school seniors set at a level of

ninth grade proficiency).

Funding

The Scholarship Program was not the only financing

change affecting the funds available to the CCSD during

this period. In 1997, the Ohio Supreme Court held that

certain portions of Ohio’s school funding formula were

unconstitutional because the complaining “school districts

were starved for funds, lacked teachers, buildings, and

equipment, and had inferior educational programs, and that

their pupils were being deprived of educational

opportunity.” DeRolfe v. State, 677 N.E.2d 733, 742 (Ohio

1997) (DeRolfe 1), reh'g and clarification, 678 N.E.2d 886

(Ohio 1997), clarification, 699 N.E.2d 518 (Ohio 1998).

10

DeRolfe I succeeded in forcing major changes in the school

funding program. Since 1997, the General Assembly has

enacted numerous reforms in the funding system. Some of

those revisions were challenged and held to violate the

Ohio Constitution, see DeRolfe v. State, 728 N.E.2d 993

(Ohio 2000) (DeRolfe II). The legislature responded once

again, and on September 6, 2001, the Ohio Supreme Court

issued its final opinion in the matter, approving, with

conditions, the General Assembly’s most recent attempts to

reform the State’s school funding program. DeRolfe v. State

(DeRolfe ill), 754 N.E.2d 1184 (Ohio 2001).

By 1995, the political infighting caused by reform

efforts caused the "total fiscal and administrative collapse”

of the Cleveland School District. Reed v. Rhodes, 934

F.Supp. 1533, 1538-39 (App.A) (N.D. Ohio, 1996). As a

last resort, the District Court ordered the State Board of

Education and the State Superintendent to “assume

immediate supervision and operational, fiscal and

personnel management of the District.” /d. at 1560. In

August 1997, Governor Voinovich signed a bill specifically

designed to change the composition of the Cleveland

School Board by giving the Mayor a major role in the

selection of its members, and to bring some orderly

resolution to competing visions of education reform. See

Mixon v. State of Ohio, 193 F.3d 389 (6th Cir. 1999)

(upholding the plan); Malcolm-Smith v. Goff, No. CV-

342589, 1999 WL 961495 (Ohio App., Oct. 21, 1999)

(unpublished, same).

The Present State of the Cleveland City School District

“Because of the confluence of poverty, poor

management, and low educational achievement,” the CCSD

is renowned as the country’s greatest educational failure.

Diane Ravitch, School Reform, Past, Present, and Future,

51 Case West. L. Rev. 187, 189 (2001). See also Beth

Reinhard, Cleveland: A Study in Crisis, Education Weck,

11

Jan. 8, 1998, at 26. Conditions are so appalling, and the

crisis has persisted for so long, that the Ohio Department of

Education recently gave the Cleveland City School District

“academic emergency” status.’ The Ohio Supreme Court

has recognized that "the Cleveland City School District is

in a crisis related to the supervision order.” Simmons-

Harris v. Goff, 711 N.E.2d 203, 214 (Ohio 2000). This is

tragic. Desegregation, properly understood, is education

reform, and Reed v. Rhodes was an education reform case

in every sense. It is impossible therefore to extract either

Reed, or this case, from a social, political, and educational

context where, after 25 years of litigation, only 20% of the

ninth-graders in Cleveland passed the State’s proficiency

test, when 69% of their ninth-grade classmates can do so.

See 2000 Ohio State Dep't of Educ. Cleveland City Sch.

Dist. Rep., http://ode000.ode.state.oh.us/ Irc_www/99_Dist/

043786.pdf, at 2. At a social level, the indicators are even

worse.

[Pjublic schools in the Cleveland area are

remarkably segregated. Most students attend

schools that are almost all white or almost all

minority and very few students attend schools that

resemble the racial proportion in the whole

community. Families wishing to attend a racially

integrated school in the public system in Cleveland

have very few opportunities to do so.

Appendix II, Jay P. Greene, Ph.D., The Racial, Economic,

and Religious Context of Parental Choice in Cleveland

* A rating of “academic emergency” applies to districts that meet eight

or fewer of Ohio's twenty-seven performance standards. CCSD did not

meet any of *+ standards during the 1998-1999 school year (score:

0/27}, thus earning last place among all Ohio's school districts. See

http://www.ode.state.oh.us/reportcard/RatingbyCD.pdf. In 1999-2000

CCSD met three standards, and remains aii “academic emergency.” See

http://www.ode.state.oh.us/teportcard/ratings/ fy00_std_seq.htm.

12

(1999), reproduced in Joint Appendix (J.A.) at 213a

[hereafter “Greene, Context of Parental Choice’.

Trying Innovative Solutions

Recognizing the intractable nature of these problems,

Chief Judge Frank Battisti suggested in 1992 that the State

of Ohio should be free “to think about innovative programs

and undertakings, where such programs offer a realistic

promise of eliminating remaining vestiges.” Reed v.

Rhodes, 1992 WL 80626, at *3. In response to this

challenge, the Governor and the General Assembly adopted

the Cleveland Scholarship and Tutoring Grant Program

(“Scholarship Program”). Signed into law on June 29, 1995

by Governor George Voinovich, its goal was to provide

funded options for poor students trapped in the Cleveland

system.

With the adoption of the Scholarship Program in 1995,

Cleveland’s low-income families® had achieved one of their

key educational goals.

If a family wants to live in the Cleveland area and

wanits to send their children to a racially integrated

school at public expense, they are more likely to do

so by choosing a private school with a voucher than

they are by attending a public school. Despite court

orders and political pressure to improve integration

in the public schools, the Cleveland Scholarship

Program offers families a better opportunity for a

racially integrated school experience.

* Ohio Rev. Code Ann. §3313.978 [App. F, J.A. 33a] provides, in

per cent of the scholarship amount and students whose family income is

below two hundred per cent of that maximum income level shall

qualify for ninety per cent of the scholarship amount.”

13

Greene, Context of Parental Choice, J.A. at 213a-214a.

They could make real choices in the interest of their

children from among a range of available educational

alternatives. Cleveland’s low income school children now

have the following choices:

Remain in their neighborhood school;

Transfer within the CCSD;

Attend a magnet school within CCSD;

Enroll in one of Ohio’s charter “community” schools;

Use the scholarship for supplemental services such as

tutoring;

Use the scholarship to pay a portion of private school

tuition; or

Enroll at full public expense in any public school

district in the State that has agreed by resolution to

admit them under Ohio Rev. Code Ann. § 3313.98.

In sum, the Scholarship Program at issue in this case

was not enacted in a vacuum. The recognized failure of the

CCSD and its resistance to judicial efforts to cure its

defects are “social facts” that this Court cannot ignore.

Amici respectfully submit that the Sixth Circuit erred when

it held that they are irrelevant to an Establishment Clause

analysis of the Scholarship Program.

14

ARGUMENT

I. FACTUAL AND SOCIAL CONTEXT IS

CRUCIAL TO A DETERMINATION THAT

THIS SCHOLARSHIP PROGRAM

“ADVANCES RELIGION."

A. Plaintiffs in an Establishment Clause Case

Bear the Burden of Proving Every Factual

Element of Their Claim, But Failed To Do So.

Reference to factual context is crucial when State

action is alleged to violate the Constitution. See, e.g.,

Palazzolo v. Rhode Island, 121 S. Ct. 2448, 2467 (2001)

(O’Connor J., concurring) (“careful examination and

weighing of all the relevant circumstances”). A thorough

understanding of the immediate facts and social context is

critical in Equal Protection cases, see Yick Wo v. Hopkins,

118 U.S. 356 (1886); in cases involving free speech, see

Rosenberger v. Rector & Visitors of the Univ. of Va., 515

U.S. 819 (1995), Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753 (1995); and in cases raising free

exercise claims. Church of Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520 (1993). Amici submit that context

is equally critical in Establishment Clause cases. Lynch v.

Donnelly, 465 U.S. 668, 693-94 (1984) ("communicat[ion

of] an endorsement of religion” is "in large part a legal

question to be answered on the basis of judicial

interpretation of social facts.”)(O’Connor, J., concurring).

Over the years since the Court synthesized its approach

to Establishment Clause adjudication in Lemon vy.

Kurtzman, 403 U.S. at 612-613, there has been a good deal

of confusion concerning the relationship between and

among the fact-based inquiries it requires. The stark

contrast between the approach of the Ohio Supreme Court

in Simmons-Harris v. Goff, and that of the Sixth Circuit in

this case is a textbook example of a profound disagreement

15

over the proper approach to fact-based claims and defenses

arising under the Establishment Clause.’

Where, as here, plaintiffs challenge an education

reform program utilizing Lemon's three-part test, plaintiffs

must prove by a preponderance of the evidence:

That the statute — taken as a whole and viewed in

context — either has no secular legislative purpose, or

that the alleged purpose of the statutory scheme at issue

is a pretext for an otherwise unconstitutional attempt to

advance or inhibit religion;

That “the principal or primary effect of the statute” —

read in the education reform and remedial context in

which it was adopted and operates - “advances [or]

inhibits religion” in a tangible or demonstrable way; or

That the nature and degree of any “entanglement with

religion” under the statute is “excessive” given the

nature and purpose of the programs involved and the

general regulatory context in which it operates.

See Edwards v. Aguillard, 482 U.S. 578, 595 (1987)

(exploring facts and history). Cf Gillette v. United States,

401 U.S. 437, 451-52 (1971) (challenger must show no

legitimate purpose in absence direct evidence of sectarian

motive). See also Village of Arlington Heights v.

Metropolitan Hous. Dev. Corp., 429 U.S. 252, 267 (1977)

’ The disagreement is widespread Compare Campbell v. Manchester

Bd. of Sch. Dirs., 641 A.2d 352, 359-61 (Vt. 1994) (fact-based inquiry);

Jackson v. Benson, 578 N.W.2d 602, 617-19 (Wis.), cert. denied, 525

U.S. 997 (1998)(same); Kotterman v. Killian, 972 P.2d 606, 612-15

(Ariz.), cert. denied, 528 U.S. 921 (1999)(same) with Bagley v.

Raymond Sch. Dep't, 728 A.2d 127, 133-35, 144-45 (Me.), cert. denied,

528 U.S. 947 (1999) (intent to discriminate found but no examination

of factual context or justification); Strout v. Albanese, 178 F.3d 57 (ist

Cup. cert denied, $28 US. 931 (1999) (no analysis of a primary effect

of “unhibutang rehygwn")

16

("historical background” and "specific sequence of events"

preceding enactment); Church of Scientology Flag Serv.

Org., Inc. v. City of Clearwater, 2 F.3d 1514 (11th Cir.

1993)(specific intent).

All of this Court’s Establishment Clause cases indicate

that context is relevart. Since Bowen v. Kendrick, 487 U.S.

589 (1988), this Court has held that appearance or “risk”

alone does not violate the Establishment Clause. Agostini v.

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

593 (2000); Good News Club v. Milford Cent. Sch., 121 S.

Ct. 2093 (2001). It makes no difference whether the

analysis proceeds under Lemon, explores whether the

“government intends to convey a message of endorsement

or disapproval of religion,” scrutinizes the government’s

actions for evidence of coercion, or utilizes neutrality as the

touchstone of the analysis, it is impossible to find the

ultimate “constitutional fact” — whether the government’s

action is intended to serve or hamper religion — without

some evidence of intent and application.

Whether a specific program has a “purpose or primary

effect that advances or inhibits religion” is an inherently

fact-sensitive inquiry. Its truth or falsity necessarily turns

on a variety of factors that will differ from case-to-case,

such as curriculum content, teaching perspective, classroom

demographics, the denominational affiliation of the

children, their teachers and the institution, the behavior and

good faith of teachers and administrators, cash flow, and

the state’s ability to recover funds spent for illegal

purposes. Neither the Sixth Circuit nor the District Court

addressed the relevance of any of these factors, even

though they were clearly presented in the record. See

Affidavits of Delories Jones, App. AA, and Cynthia L.

Felden, App. BB in J.A. 186a-189a.

Because Respondents did not undertake to demonstrate

how the Scholarship Program funds flowing to parents who

17

chose religiously affiliated schools actually “advance

religion,” Petitioners were entitled to summary judgment as

a matter of law.

B. The Decisions Below are “Clearly Erroneous”

as a Matter of Fact, and as a Matter of Law

Relying on a narrow reading of Nyquist, the District

Court found that the primary effect of the Scholarship

Program was to provide substantial benefits for religiously

affiliated schools, notwithstanding undisputed evidence that

the scholarship does not even come close to covering the

cost of educating scholarship students. See Affidavit of

Shelia Bolek 99, App. Z, J.A. 184a. In the District Court's

view, 72 F.Supp.2d at 849, this purported effect was so

substantial that it supported a finding that the “function” of

the Scholarship Program — i.e. its purpose — was “to

provide assistance to private schools, the great majority of

which are sectarian.”

No attention whatever is given in this analysis to the

raisons d’étre for the options first made available to

Cleveland parents and children in 1995: an existing

constitutional mandate to desegregate Cleveland’s schools,

the need to reform them in a manner that creates a unitary

school system meeting the needs of the poor and

underserved, and the titanic political struggles over Ohio's

school finance program. For the Court of Appeals, the

existence of “other options available to Cleveland parents

such as the Community Schools is "at best irrelevant.” 234

F.3d at 958.°

* Other courts have taken an equally hostile attitude toward facts that this Court

has held are clearly relevant in an Establishment Clause inquiry. In Strout v.

Albanese, 178 F.3d at 64, the First Circuit professed to be “at a loss to

understand why plaintiff-appellants believe that the Establishment Clause gives

them a basis for recovery” in a case where the State Legislature changed a

neutral rule of general applicability into one that discriminates on the basis of

religion. Accord Bagley, 728 A.2d at 133-35, 144-45 (finding that the statute

18

Amici submit that Circuit Judge Ryan was correct

when he observed that both the majority and the District

Court had misperceived the nature of both the factual and

legal burden respondents were required to carry under the -

precedents of this Court. 234 F.3d at 963 (Ryan, J,

dissenting) (“the majority has simply signed onto the

familiar anti-voucher mantra that voucher programs are no

more than a scheme to funnel public funds into religious

schools.”). The ruling below is tantamount to a bright line

rule that a State may not provide aid to students to attend

private schools, regardless of its legislative inient,

whenever some significant percentage of the schools

available are religiously affiliated.

The Ohio Supreme Court has held that “[w]Jhen a

district falls short of the constitutional requirement that the

system be thorough and efficient, it is the state's obligation

to rectify it.” DeRolfe 1, 677 N.E.2d at 745. See Ohio

Const. art. VI, §2. When the task is to remedy the past and

present effects of de jure racial discrimination, the

obligation is compelling under both State and federal law.

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,

28 (1971); Ritchey Produce Co., Inc. v. Ohio Dept. of

Admin. Servs., 707 N.E.2d 871, 913 (Ohio 1999).

Ohio Provides Three Funded Options Outside the

Troubled Cleveland Public Schools.

The Sixth Circuit refused to consider the legal and

factual context of Ohio's school finance program because:

[W]e would open the door to a wide-reaching

analysis which would permit us to consider any and

all scholarship programs available to children who

qualify for the school voucher program. We would

singled out only religious schools for adverse treatment without considering

whether intentional discrimination on the basis of religion or religious

viewpoint has “a purpose or primary effect that ... inhibits religion”).

19

be considering and comparing every available

option for Cleveland children.

234 F.3d at 958. Amici respectfully submit that, to the

extent education reforms are a “necessary and proper”

means of compliance with the Equal Protection Clause, the

court was required to consider the three funded options to

parents and children who seek education outside the

troubled Cleveland public schools:

Community Schools are publicly funded, independent

schools, operated through a contract with a sponsoring

agency. They are known as charter schools around the

country, but community schools in Ohio are "chartered

public schools."°

Statewide Open Enrollment. The second funded

option for Cleveland’s children is the statewide open-

enrollment program created by Ohio Rev. Code Ann.

§3313.98. It permits fully funded inter-district transfers to

public school districts that permit them. See Equal Open

Enrollment Association v. Board of Educ. of the Akron City

Sch. Dist., 937 F. Supp. 700 (N.D. Ohio, 1996) (enjoining

operation of school district policy prohibiting white

students from transferring to adjacent school districts under

Ohio open-enrollment law). To date, the CCSD itself

permits a limited number of students from outside district

limits to attend, and receives full state support for each of

them. For reasons of their own, most of Cleveland’s

suburban districts do not accept any inter-district transfers

at this time,'° Their schools are open only to residents.

® Payments to Community Schools are detailed at

https://www.edohio.org/school_options/default.asp. See also

http://www.ode.state.oh.us/oso/options/commschools/generalinterest/

faq.htm (basic questions and answers about the program).

© On October 23, 2001, staff at the Center for Education Reform called

the following districts surrounding Cleveland: Brooklyn, Shaker

Heights, Cleveland Heights/University Heights, Parma, Lakewood,

20

The State of Ohio provides $5,137.50 for each student

enrolled in a public school in Cuyahoga County.'' Were a

student from Cleveland to enroll in a suburban district

within the county under the open-enrollment option, state

funding at the county rate would follow her.'?

The Cleveland Scholarship and Tutoring Grant

Program. Created by Ohio Rev. Code Ann. §§ 3313.974

through 3313.979, the Scholarship Program provides

limited tuition at public or private schools willing to

Euclid, Rocky River, East Cleveland, and Cuyahoga Heights. Each

district was asked two questions. First, each district was asked if it

allows students within its district to transfer to other schools within the

district, i.e. intra-district transfers. All the above districts where there is

more than one school per grade grouping permits intra-districi

transfers. Only the Brooklyn, Rocky River and Cuyahoga Heights

districts do not permit intra-district transfers because each district only

has one school per grade grouping. However, even those which allow

intra-district transfers have limitations such as the Shaker Heights

district which allows such transfers only “with permission." Second,

each district was asked if it accepts students from outside the district,

i.e. inter-district transfers. None of these districts accepts students from

outside their respective district.

'' Under Ohio law, if a student were to select an inter-district transfer,

the amount of funding payable to the receiving district is the “adjusted

formula amount for the district." Ohio Rev. Code Ann. § 3313.981.

For the 2001-02 school year, the formula amount is $4,814 per student,

which is the amount the State has determined to=be the base cost of an

adequate education. See Ohio Rev. Code Ann. § 3317.012(A)(1). The

formula amount is then multiplied by a cost-of-doing-business factor

(CODBF), depending upon the county where the receiving district is

located. For Cuyahoga County, the CODBF is 1.0672 (also defined by

statute), resulting in an adjusted formula amount for this school year of

$5,137.50.

" For tangible examples of the program “in operation,” see

http://www.ode.state.oh.us/sf/foundation/W W W-SF3-HEADER-

FY2002.HTML. To process the request, select 5-Oct-2001 in the first

pull-down box, the appropriate specific school district that accepts open

enrollment students (e.g., Akron City School District), and check Line

22D “open enrollment.” When “process” is pressed, the system will

generate current open-enroliment financial information.

21

participate. A suburban school district that agrees to take

out-of-district students under the Scholarship Program is

compensated by the State in accordance with the formula

set out in Ohio Rev. Code Ann. § 3317.03(I)(1). The

receiving district thus gets the scholarship, and counts the

scholarship student as a part of its “Average Daily

Membership” (ADM) for purposes of state reimbursement.

The Sixth Circuit, by contrast, believed that the

scholarship amount was the only payment the State would

make to a suburban district. The majority opinion states:

“At a maximum of $2,250, there is a financial disincentive

for public schools outside the district to take on students via

the school voucher program.” 234 F.3d at 959. The facts,

however, are to the contrary. The amount of the scholarship

is added to the base payment available to the student under

the State’s foundation formula. Thus, the reason that “there

are no spaces available for children who wish to attend a

suburban public school in place of a private school under

the program,” id., is not tied to school finance at all. The

suburban schools are open only to their residents. The

Sixth Circuit’s conclusion that the financial structure

"clearly has the impermissible effect of promoting sectarian

schools”, id., is plain error.

Respondents Did Not Prove That Any Portion of the

State's Payments Under the Scholarship Program

Supports Religious Activities or Teaching.

The District Court held, correctly, that while the

Scholarship Program serves an important secular goal, this

fact alone “d[id] not obviate th{e] court’s duty to further

question whether the Program also has the direct and

immediate effect of advancing religion.” 72 F. Supp. 2d at

848. From that point forward, however, it studiously

ignored the constitutional significance of undisputed facts

concerning the Program's actual operations. It presumed —

on largely doctrinal grounds that did not permit rebuttal,

22

that the relevant constitutional fact — that the Cleveland

Scholarship Program “advanced religion” — had been

proved.

The District Court did not, for example, question the

fact that “educating [public school scholarship] students

with such needs costs the [receiving private] schools more

than the payment they receive.” 72 F. Supp. 2d at 849.

Assuming, as we must under Rule 56 of the Federal Rules

of Civil Procedure, that the court must view the evidence in

a light most favorable to the non-moving party, Adickes v.

S.H. Kress & Co., 398 U.S. 144 (1970); White v. Turfway

Park Racing Ass'n, 909 F.2d 941, 943-44 (6th Cir. 1990),

the “most favorable” conclusion that can be drawn from

this undisputed fact is that when private schools accept

scholarship students at rates below their normal cost of

attendance, there is no subsidy to the school. The subsidy —

in the form of a below-cost “tuition discount’”— runs in

favor of the State. The Cleveland Public Schools are

subsidized as well, in that none of the costs associated with

students in the Scholarship Program who choose to attend a

private school are borne by the CCSD.

Rule 56(c) states plainly that summary judgment is

inappropriate unless there is “no genuine issue as to any

material fact” (emphasis added). But there were many such

disputes in the case at bar, including one implicit in the

District Court’s formulation of one of the key

“constitutional fact issues”: whether the Scholarship

Program “benefits the participating schools in such a way

as to impermissibly foster religion.” 72 F. Supp. 2d at 849

(emphasis added). Given those disputes, it should have

been incumbent on the Respondents to prove, by a

preponderance of the evidence, the precise ways in which

the Scholarship Program “has the direct and immediate

effect of advancing religion.” 72 F. Supp. 2d at 848 (citing

Nyquist, 413 U.S. at 783 n.39). Because they did not do so

23

— and did not rebut the evidence presented by the

Petitioners — summary judgment for the Petitioners should

have been granted.

In Bowen v. Kendrick, 487 U.S. 589 (1988), this Court

held that an Establishment Clause challenge is no different

in kind from any other claim arising under the incorporated

First Amendment. The duty of the District Court is to

consider[] ... the evidence presented by [the parties]

insofar as it sheds light on the manner in which the

Statute is presently being administered. It is the

latter inquiry to which the court must direct itself on

remand.... As our previous discussion has

indicated, and as Tilton, Hunt, and Roemer make

clear, it is not enough to show that the recipient of a

challenged grant is affiliated with a religious

institution or that it is "religiously inspired."

487 U.S. at 621. See, eg., United States v. Playboy

Entertainment, Inc., 120 S. Ct. 1878, 1891 (2000) (noting

that the government had failed to make its case on the

facts); Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, 515 U.S. 557, 567 (1995) (appellate

review of facts to decide whether petitioner's activity was

protected speech); Philadelphia Newspapers, Inc. v. Hepps,

475 U.S. 767 (1986) (plaintiffs in both public- and private-

figure cases concerning matters of public concern bear the

burden of proof on the issue of falsity); Bose Corp. v.

Consumers Union of United States, Inc., 466 U.S. 485,

510-11 (1984) (requiring "independent appellate review" of

factual determinations that a libel defendant acted with

actual malice). See Henry P. Monaghan, Constitutional

Fact Review, 85 Colum. L. Rev. 229 (1985).

Since Kendrick, his Court has consistently affirmed

the importance of constitutional fact-finding in

Establishment Clause litigation. Good News Club, 121 S.

24

Ct. 2093; Mitchell v. Helms, 530 U.S. 593; Agostini v.

Felton, 521 U.S. 203 (1997); Rosenberger, 515 U.S. 819

(1995); Capitol Square Review, 515 U.S. 753; Board of

Educ. of the Kiryas Joel Village Sch. Dist. v. Grumet, 512

U.S. 687 (1994); Zobrest v. Catalina Hills Sch. Dist., 509

U.S. 1 (1993). In the case at bar, however, the District

Court and Court of Appeals treated an essentially fact-

based inquiry under the Establishment Clause as one of

doctrine, even though the parents and children who signed

affidavits in support of the Scholarship Program view their

choices as real, not “illusory.” [App. CC and DD, J.A. at

190a-194a).

Programs like [the Cleveland Scholarship Program]

only modify or regulate the existing choice

environment. And the kinds of choices exercised

with a voucher have to be viewed in the context of

all of the other choices provided.

Greene, Context of Parental Choice in Cleveland, App.

Il, J.A. at 217a-218a.""

Allowing the federal courts to strike down voucher

programs in their infancy simply because a majority of

students taking the cash option have chosen to attend

religious schools will ensure that virtually no voucher

program will survive long enough so that its educational

effects can be measured — a result that is unsound as a

matter of policy, as well as constitutionally incorrect.

Interview with Caroline M. Hoxby, Battle Over School

Choice: Competition, School Choice & Charter Schools,

PBS Frontline (May 23, 2000)[hereinafter, Hoxby

Interview] (arguing that voucher programs need time to

'’ Given the range of funded options available under Ohio law, the

percentage of student enrolled in religious schools drops dramatically

when the number of students enrolled in each is factored into the

equation.: scholarship only (96.6%); community (62.1%)); magnet

(16.5%); neighborhood (3.2%). Id.

25

take hold before new secular private schools are built to

meet rising demand); Policy Note, Private School

Competition Raises Salaries of Public School Teachers,

Buckeye Inst. for Public Policy Solutions (Dec. 1988,

http://www.buckeyeinstitute.org/policy/1998_12.htm

(discussing Richard Vedder and Joshua Hall, Private

Schools and Public School Teacher Salaries, Ohio

University (Feb. 1999).

Because the decisions below eschew fact-finding in

Establishment Clause challenges to education reform

initiatives, this Court should reverse.

Il. THE EQUAL PROTECTION AND

ESTABLISHMENT CLAUSES REQUIRE A

FACTUAL INQUIRY BEFORE THIS

REMEDIAL LEGISLATION IS

INVALIDATED

A. The Decisions Below Inhibit Ohio’s Ability to

Meet Its Remedial Obligations Under Federal

and State Constitutional Law.

The Scholarship Program is an important element of

the Ohio’s decades-long effort to rectify the past and

present effects of racial segregation in Cleveland’s schools.

It is also an innovative attempt by the State to utilize the

private education market to help satisfy its obligation under

State constitutional law to provide an adequate educational

program for all of Cleveland’s children. See Ohio Const.

art. VI § 2; Simmons-Harris v. Goff, DeRolfe I. As the

Ohio Supreme Court observed in Ritchey Produce Co., 707

N.E.2d 871 at 913 (citations omitted), these interests are

“compelling,” both legally and morally:

There is no question that a state has a compelling

interest in remedying the past and present effects of

identified racial discrimination within its

26

jurisdiction where the state itself was involved in

the discriminatory practices. ...In addition to the

foregoing legal authorities, it is also, from our

perspective, the truly right thing to do.

The Ohio General Assembly “took extraordinary

measures to attempt to alleviate an extraordinary situation”

when it adopted the Scholarship Program, Simmons-Harris

v. Goff, 711 N.E.2d at 214, because the CCSD had

consistently failed to provide an adequate education for its

minority students. Whether considered from an equal

protection or an education reform perspective, the State's

responsibility to ensure a quality education for all of

Cleveland’s children is far from being discharged. By

foreclosing funded school choice as an option as long as

religiously affiliated schools can participate, the courts

below have made it significantly more difficult for the State

to meet its legal obligations under federal and state

The State’s need to enact reforms as a means of

compliance with the Equal Protection Clause in a school

desegregation context is clearly relevant to a challenge to

those reforms under the Establishment Clause. There was

really no dispute in the court below that the “principal

purpose” of the Scholarship Program is to further the

remedial goals set by the court and accepted by the State of

Ohio in Reed v. Rhodes. Nor could there be. Respondents

produced no evidence to that effect.

Statistical studies have shown that voucher programs

can be an important tool for achieving racial desegregation

in education. A General Accounting Office report showed

that students in Cleveland public schools were more

Scholarship Program to attend private schools. See General

Accounting Office, School Vouchers: Publicly Funded

Programs in Cleveland and Milwaukee, at 21 (Aug. 31,

27

2001). In a unique district like Cleveland, which has had

racially segregated schools for virtually its entire existence,

the Scholarship Program provides an important tool to

alleviate the appalling social schism between students of

different races, economic means, religions, and ethnic

origin. Respondents did not adduce any evidence to

disprove the utility of scholarships, nor did they make any

attempt to prove that the Scholarship Program was really a

pretext for supporting religiously affiliated schools. Nor

could they: the evidence in the record is to the contrary.

Dr. Greene’s study underscores the importance of

funded school choice programs that include private schools.

Funded school choice is a tool designed to foster the

common good. It is not now, nor has it ever been, a

nefarious plot either to destroy the public schools or

provide money to religious causes. Accord Goff, 711

N.E.2d at 212. Its goal is to help children and parents

choose the school that best meets their needs.

The only question before this Court is whether the

“principal or primary effect” of the Scholarship Program

“advances religion” because Cleveland’s children and their

parents have chosen to attend the only schools that are

currently able to meet the demand for alternative nonpublic

schools. The State of Ohio did not create the current private

education market in Cleveland, and cannot be held

responsible because the private commercial and nonprofit

sectors have not, as yet, rushed in to create secular private

schools. As one scholar has explained:

It so happens that most of the existing private

schools that are very inexpensive are parochial

private schools in the United States.... Right now

we have small, essentially experimental school

choice programs.... But, if we were to have a school

voucher policy that was more universal or more

general, and if the size of the voucher were to be

28

somewhat larger ... even if it were only 2/3 of per

pupil spending in the United States, it would still be

high enough so that what we would get would be

private schools that were created to take students

who have vouchers.

Hoxby Interview, supra. School choice programs need time

to take hold before new secular private schools are built to

meet rising demand. Once there is some degree of legal

certainty that the Scholarship Program will continue to

exist, the number of seats in secular schools will likely

grow. “If we were to have ... universal vouchers, most of

the [new] private schools that would come into existence

would not be religious private schools.” Jd. Respondents

did not produce any evidence to show either that the State

was responsible for the choices these parents and children

have made, or that it created the market in which those

choices must be made. Without such evidence, it is

impossible to prove that the State of Ohio intended to

influence or limit the range of choices available.

In fact, the available evidence in the record

demonstrates that the State of Ohio is attempting to create a

diversified private-public marketplace for educational

services throughout the State. It has created a framework

for parental choice that includes tutoring, community

(charter) schools, magnets, partial tuition scholarships, and

fully funded inter-district open enrollment. Given time,

stability, and enough demand, a diversified market will

develop, and the State of Ohio will remain obligated under

its own constitution to provide “a thorough and efficie:

system of common schools throughout the State." Ohio.

Const. art. IV § 2.

Because the decisions below completely foreclose the

use of school choice programs in any jurisdiction where the

majority of the private schools are religious at the time the

program is created, and because this result unreasonably

29

interferes with the State’s ability to meet its remedial

obligations to its students under the United States and Ohio

Constitutions, the decision below should be reversed.

B. The Decisions Below are Inconsistent with the

Principle of Equal Protection of the Laws

Embodied in the First and Fourteenth

Amendments.

__ The Establishment and Equal Protection Clauses are

distinct affirmations of the principles of equal citizenship

and equal protection.

[T]he Establishment Clause forbids the government

to use religion as a line-drawing criterion. In this

respect, the Establishment Clause mirrors the Equal

Protection Clause. Just as the government may not

segregate people on account of their race, so too it

may not segregate on the basis of religion. The

danger of stigma and stirred animosities is no less

acute for religious line-drawing than for racial.

Kiryas Joel, 512 U.S. at 728-729 (Kennedy, J.,

concurring); Wright v. Rockefeller, 376 U.S. 52, 67 (1964)

(Douglas, J., dissenting) (quoted in Shaw v. Reno, 509 U.S.

630, 648-49 (1993)).

The presumption that the constitutionality of a social

welfare program is determined by reference to the

percentage of religious groups participating, 234 F.3d at

959, is flatly contradicted by decisions of this Court. See,

e.g., Mueller v. Allen, 463 U.S. 388, 398-99 (1983);

Mitchell v. Helms, 530 U.S. at 842 (O'Connor, J.,

concurring).. Respondents must ~ produce evidence

demonstrating how the Scholarship Program “advances

religion.” See Washington v. Davis, 426 U.S. 229 (1976). A

presumption that religiously affiliated schools cannot

participate because they are religious is discriminatory on

its face.

30

The courts below rested their conclusions as to the

constitutional fact on the basis of inappropriate “con-

clusive” presumptions about the willingness or ability of

religiously affiliated schools and teachers to comply with

the law. This Court rejected such reasoning in Lemon, 403

U.S. at 606-607. Unless plaintiffs in Establishment Clause

cases are compelled to adduce evidence of either mis-

conduct or inability to comply with the rules, see Kendrick,

Agostini, and Mitchell, the result will be judicially

mandated intentional discrimination on the basis of religion

without regard to the actual intent or conduct of the State.

This is a result that violates the First and the Fourteenth

Amendments. See McDaniel v. Paty, 435 U.S. 618 (1978).

Cf. U.S. Const. art. VI (No Religious Test Clause, forbid-

ing religious discrimination as a qualification for a public

trust, such as the expenditure of scholarship money ear-

marked fc: secular education programs only). See Michael

S. Ariens & Robert A. Destro, Religious Liberty in a

Pluralistic Society (Carolina Academic Press 1996) 666-70.

CONCLUSION

For the foregoing reasons, amici curiae respectfully

request that the judgment of the Sixth Circuit Court of

Appeals be reversed.

Respectfully submitted,

Of Counsel . ROBERT A. DESTRO

JOSEPH E. SCHMITZ Counsel of Record

GREGORY S. WALDEN MARSHALL J. BREGER

MATTHEW F. STOWE SCHOOL OF LAW

PATTON BoGcGs LLP CATHOLIC UNIVERSITY

2550 M Street NW OF AMERICA

Washington, D.C. 20037 Washington, D.C. 20064

(202) 457-6135 202-319-5140

November 9, 2001