Amicus Curiae Brief — Zelman v. Simmons-Harris

ae 1, & and 00-1779 NOV 9 Sty

IN THE

Supreme Court of the Gnited| Htateserx

SUSAN TAVE ZELMAN, SUPERINTENDENT OF

PUBLIC INSTRUCTION OF OHIO, ef al.,

Petitioners

Vv.

Doris SIMMONS-HARRIS, ef ai.,

Respondents

HANNA PERKINS SCHOOL, ef ai.,

Petitioners

Vv.

Doris SIMMONS-HARRIS, ef a.,

Respondents

SENEL TAYLOR, ef al.,

Petitioners

va Vv.

Doris SIMMONS-HARRIS, ef al., |

Respondents

On Writ of Certiorari to the United States Court

Of Appeals for the Sixth Circuit

BRIEF OF THE REACH ALLIANCE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

PHILIP J. MURREN*

BALL, MURREN & CONNELL

2303 Market Street

Camp Hill, PA 17011

*Counsel of Record (717) 232-8731

QUESTION PRESENTED

Whether a program designed to create additional

educational options for children of parents who lack the

means to afford alternatives to their distressed public schools

violates the Establishment Clause of the First Amendment to

the United States Constitution.

ii

TABLE OF CONTENTS

QUESTION PRESENTED i

TABLE OF AUTHORITIES il

INTEREST OF AMICUS l

SUMMARY OF ARGUMENT 2

ARGUMENT 2

A. THIS COURT’S NYQUIST AND SLOAN

DECISIONS WERE PREMISED ON ERRONEOUS

PRESUMPTIONS. 3

B. THE COURT BELOW ERRED IN ASSESSING

THE SECTARIAN EFFECT OF THE OHIO PILOT

SCHOLARSHIP PROGRAM IN ISOLATION FROM

THE STATE’S OVERALL EFFORTS AT EQUALIZING

EDUCATIONAL OPPORTUNITIES. 8

CONCLUSION 9

iil

TABLE OF AUTHORITIES

CASES: Page

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

Committee for Public Education and Religious

Liberty v. Nyquist, 413 U.S. 756 (1973) passim.

Mitchell v. Helms, 530 U.S. 793 (2000) 7

Mueller v. Allen, 463 U.S. 388 (1983) 9

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

(6" Cir. 2000) s

Sloan v. Lemon, 413 U.S. 825 (1973) 3

STATUTES:

24 Purdon’s Pa. Statutes §15-1501-C 8

24 Purdon’s Pa. Statutes §20-2001-B 2

38 U.S. Code §3451 8

38 U.S. Code §3500 8

42 U.S. Code §9858 8

In THE

Supreme Court of the Anited States

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

SUSAN TAVE ZELMAN, SUPERINTENDENT OF

PUBLIC INSTRUCTION OF OHIO, ef ai.,

Petitioners

Vv.

Doris SIMMONS-HARRIS, ef ai.,

Respondents

HANNA PERKINS SCHOOL, ef ai.,

Petitioners

Vv.

Doris SIMMONS-HARRIS, ef al,

Respondents

SENEL TAYLOR, ef ai.,

Petitioners

Vv.

Doris SIMMONS-HARRIS, ef ai.,

Respondents

On Writ of Certiorari to the United States Court

Of Appeals for the Sixth Circuit

BRIEF OF THE REACH ALLIANCE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

: INTEREST OF AMICUS"

The REACH Alliance is a membership organization

composed of individuals and organizations interested in

* Counsel for the Amicus Curiae authored this brief in its entirety. No

person or entity other than the Amicus Curiae or its members made a

monetary contribution to the preparation or submission of this brief.

2

bringing about enhanced opportunities for Pennsylvania

parents to send their children to the kindergartens,

elementary schools and secondary schools which best suit

the needs of those children. It has been a principal advocate

of “school choice” reforms in Pennsylvania, such as the

Educational Improvement Tax Credit, 24 P.S. §20-2001-B,

et seq.

Organizational members of the REACH Alliance

include: The Commonwealth Foundation; Minorities for

Choice; The Pennsylvania Manufacturers Association; The

Pennsylvania Family Institute; The Pennsylvania Catholic

Conference; the Pennsylvania Knights of Columbus;

Citizens for Educational Freedom; The Keystone Christian

Education Association; and The Henkels Foundation.

Counsel of Record for all of the parties in this case

have consented to the filing of this brief. Their letters of

consent have been filed with the Clerk of the Court pursuant

to Rule 37.

SUMMARY OF ARGUMENT

Parents who exercise a constitutionally-protected

liberty to choose to enroll their children in the public or

nonpublic schools that, while meeting compulsory

attendance obligations, best serve the needs of their children,

may be furnished governmental assistance in defraying the

costs of that schooling without violation of the Establishment

Clause of the First Amendment.

ARGUMENT

The United States Court of Appeals for the Sixth

Circuit, in the decision below, has perpetuated two errors of

3

Establishment Clause jurisprudence that need to be put to

rest.

The first of these errors is that legislatures that seek

to equalize educational opportunities for a// elementary and

secondary school children, by defraying their educational

costs, are furnishing institutional aid to religious enterprises.

The second of these errors is the notion that

legislative efforts to equalize educational opportunities for

all elementary and secondary school children must be

examined in isolation, to determine if their effect is to

advance religion, rather than in the context in which they

were enacted — the State’s overall allocation of resources

between and among children attending public and nonpublic

schools.

A. Tuts COURT’S NYQUIST AND SLOAN DECISIONS

WERE PREMISED ON ERRONEOUS PRESUMPTIONS.

In 1973, in the companion cases of Committee for Public

Education and Religious Liberty v. Nyquist, 413 U.S. 756,

and Sloan v. Lemon, 413 U.S. 825, this Court invalidated

tuition reimbursement and tuition “grant” programs that had

been adopted in the State of New York and in the

Commonwealth of Pennsylvania.

The core of the Court’s explanation of its reasoning in

those cases can be found in footnote 38 in the Nyquist

majority opinion:

“Allen and Everson differ from the present litigation

in a second important respect. In both cases the class of

beneficiaries included al] schoolchildren, those in

public as well as those in private schools. See also

Tilton v. Richardson, supra, in which federal aid was

4

made available to ail institutions of higher learning, and

Walz v. Tax Comm'n, supra, in which tax exemptions

were accorded to all educational and charitable

nonprofit institutions. We do not agree with the

suggestion in the dissent of The Chief Justice that

tuition grants are an analogous endeavor to provide

comparable benefits to all parents of school children

whether enrolled in public or nonpublic schools. Post,

at 801-803. The grants to parents of private

schoolchildren are given in addition to the right that

they have to send their children to public schools

“totally at state expense.” And, in any event, the

argument proves too much, for it would also provide a

basis for approving through tuition grants the complete

subsidization of all religious schools on the ground that

such action is necessary if the State is fully to equalize

the position of parents who elect such schools - a result

wholly at variance with the Establishment Clause.

“Because of the manner in which we have resolved

the tuition grant issue, we need not decide whether the

significantly religious character of the statute’s

beneficiaries might differentiate the present cases from

a case involving some form of public assistance (e.g.,

scholarships) made available generally without regard

to the sectarian-nonsectarian, or public-nonpublic

nature of the institution benefited. See Wolman v.

Essex, 342 F Supp 399, 412-413 (SD Ohio), affd, 409

US 808, 34 L Ed 2d 69, 93 S Ct 61 (1972). Thus, our

decision today does not compel, as appellees have

contended, the conclusion that the educational

assistance provisions of the “G. I. BilI,*“38 USC §1651,

impermissibly advance religion in violation of the

Establishment Clause. See also n 32, supra.”

413 US. at 782, n.38.

Three faulty presumptions are contained in this single

passage:

1. That children whose parents have a fundamental

right to choose a nonpublic school for them

receive an extra public benefit when the State

subsidizes their education, due to the fact that all

children are presumptively to be considered as

public school children.

2. That allowing parents to choose nonpublic

schools for their children, with a lessened

additional financial burden, is the equivalent of

direct subsidization of their schools.

3. That the “beneficiaries” of a statute that lessens

the financial burdens for parents, who are

satisfying compulsory school attendance

obligations, are the schools which the students

attend, rather than the parents and their children.

those parents believe that their government is under an

obligation to subsidize their choice of nonpublic schooling.

But when government acts to offset some of the additional

6

an arhount in excess of the charge required to send their

children to nonpublic schools.

The first flawed presumption of footnote 38 in

Nyquist was given dispositive effect in Sloan, wherein the

Court ruled that the Commonwealth of Pennsylvania had

“singled out a class of its citizens for a special economic

benefit.” 413 U.S. at 832. That view is similar to saying that

a coach is conferring a benefit on an athlete he or she has

singled out for exemplary “added training” when that coach

allows that athlete to stop running punitive wind sprints.

Helping nonpublic school parents achieve parity in

government-provided educational benefits is merely, in the

words of former Chief Justice Burger, “simple equity.”

Nyquist, supra, at 803 (Burger, J., dissenting).

The second and third erroneous presumptions in

Nyquist 's footnote 38 are similar to one another in their

misconception of the purposes of efforts to equalize

educational opportunities for parents. The Court’s view of

such efforts is even more explicitly set forth in a subsequent

passage in Nyquist, where the majority states that, “insofar as

such benefits render assistance to parents who send their

children to sectarian schools, their purpose and inevitable

effect are to aid and advance those religious institutions.” 413

U.S. at 793. That view allows the Nyquist majority to hold

that a tuition reimbursement benefit for parents is

government “sponsorship” or “financial support” of religion.

413 US. at 771.

The Nyquist majority further reveals its presumptive

bias against measures that aid parents in meeting their

educational obligations by broadly characterizing them as an

example of “the ingenious plans for channeling state aid to

sectarian schools that periodically reach this Court.” 413 U.S.

at 785. There is thus little wonder — given the prism through

7

which the Nyquist majority viewed legislative efforts at

equalizing educational benefits for parents — that the Nyquist

Court decried such efforts, at length, as being “politically

divisive,” and therefore at odds with the overriding purposes

of the Establishment Clause. 413 U.S. at 794-798. Such a

formulation of the purposes of the Establishment Clause,

coupled with a skewed view of the purposes of efforts to

bring “simple equity” to the funding of educational options,

fashioned a pernicious recipe for oppression of the choice of

non-government education. If a substantial enough faction

could politically oppose such efforts (however unjustly and

through whatever mischaracterizations of their purposes),

those efforts (however just and whatever their non-religious

purposes) would violate our organic law and could not be

countenanced.

Fortunately, however, this Court has already

abandoned and discredited the presumption that efforts at

assisting parents to make their own choices of where their

children will be educated are intended as, or result in,

impermissible subsidies to the schools which they choose.

Mitchell v. Helms, 530 U.S. 793, 841-843 (O’Connor and

Breyer, JJ., concurring). To the extent that Nyguist's

presumptions about the purposes and effects of “true private-

choice” programs (Mitchell, id. at 842) are no longer

recognized as commanding a majority of this Court,

Nyquist’s continuing force as precedent should be explicitly

overruled. This Court has not shrunk from eliminating

wrongly decided precedent cases that were based on similarly

erroneous presumptions that underlay unjust Establishment

Clause rulings. See, Agostini v. Felton, 521 U.S. 203, 235

(1997); Mitchell v. Helms, supra, 530 U.S. at 837 (O’Connor

and Breyer, JJ., concurring). Overruling the holding and

reasoning of Nyquist will remove the pall of doubt from

“scholarship” and “certificate” programs that honor parental

choices between religious and non-religious educational

8

alternatives. Those programs now include the “G.I. Bill,” 38

U.S.C. §3451, et seg.; Military Survivors’ an? Dependents’

Educational Assistance, 38 U.S.C. §3500, et seg.; Federal

Child Care and Development Block Grant certificates, 42

U.S.C. §9858, et seq.; and Pennsylvania’s Educational

Support Services Program, 24 P.S. §15-1501-C, et seg.

B. THE COURT BELOW ERRED IN ASSESSING THE

SECTARIAN EFFECT OF THE OHIO PILOT

SCHOLARSHIP PROGRAM IN ISOLATION FROM THE

STATE’S OVERALL EFFORTS AT EQUALIZING

EDUCATIONAL OPPORTUNITIES.

The State of Ohio will spend approximately $7.4

billion in State funds alone on education in its Fiscal Year

2002. State of Ohio Executive Budget, p. E-106. (Available

online at http://www.ode.state.oh.us/legislative/Links/

EDU_Budget.pdf.) Of that amount, approximately $178

million (or about 2.4%) will be set aside for services for

nonpublic school students. /d. at p. E-105. Ohio also grants

the authority to its local taxing authorities to raise and spend

public funds for public education purposes (including capital

and operating expenditures).

The realities of the overall disparities in public

spending on public v. private schoo! options could not have

been ignored by the Ohio General Assembly when it enacted

the Ohio Pilot Scholarship Program. Those realities should

not have been ignored by the Sixth Circuit below. Simmons-

Harris v. Zelman, 234 F.3d 5, 958 (6" Cir. 2000).

By viewing a program aimed at remedying overall

disparities in available opportunities totally in isolation from

those portions of the State budget and education laws which

created the disparities in the first place, the Court below

9

unjustly prejudiced the result in this case. Under the

analytical approach adopted by the Court below, it will never

_ be possible to remedy an existing legal disparity in the

funding of educational opportunities without repealing and

reenacting the entire Ohio Education Code.

The approach in Mueller v. Allen, 463 U.S. 388, 401-

402 (1983), to the “statistical effects” of a facially neutral

program that produced more use by parents who chose

religiously-affiliated schools, is more fundamentally just than

that employed by the Court below. In Mueller, this Court

recognized the simple reality that, if “parents of children in

private schools choose to take especial advantage of [the tax

deduction for educational expenses], it is no doubt due to the

fact that they bear a particularly great financial burden in

educating their children.” 463 U.S. at 402.

CONCLUSION

For the foregoing reasons, your amicus respectfully

supports the Petitioners in urging that the decision of the

Court below be reversed.

Respectfully submitted,

PHILIP J. MURREN*

BALL, MURREN & CONNELL

2303 Market Street

Camp Hill, PA 17011

* Counsel of Record (717) 232-8731