Amicus Curiae Brief — Zelman v. Simmons-Harris
Supreme Court brief2001
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Nos. 00-1751, 00-1777, 00-1779;
a
IN THE | DEC 13 200
Supreme Court of the United States
SUSAN TAVE ZELMAN, et ai.,
Petitioners,
-and-
HANNA PERKINS SCHOOL, et ai.,
Petitioners,
-and-
SENEL HERMAN TAYLOR, et ai.,
Petitioners,
v.
DORIS SIMMONS-HARRIS, et ai.,
Respondents.
On Waits oF CERTIORARI TO THE
Unitep States Court 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 JEFFREY 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
i
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.
il
TABLE OF CONTENTS
' Page
Qusstion Presented ...... cc cccccccccccccccces i
cc ckeeneeesessecctcceccees li
Table of Cited Authorities ................0045. Vv
Interest of the Amicus Curiae .................. |
EE seedccscecescocccccecees 2
Summary of Argument .................000005. 3
EEE OO eee 6
I. Ohio’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
re 11
Contents
Page
1. The Ohio statute’s viewpoint
discrimination would normally
violate the First Amendment’s Free
Speech Clause. .......... Deuces 11
2. The Ohio Statute does not raise free
speech concerns because vouchers
are funding in part the government’s
OWN Message. ........... 00 eees 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
BEE, cccccccccccccepesecescce 21
iv
Contents
Page
C. The Intrusion Into Doctrinal Matters
Here Distinguishes This Program
From The Limited Neutral State
Regulatory Oversight That This Court
PEE. ccncoudaddecscebockaces 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
Vv -
TABLE OF CITEDAUTHORITIES
Page
Cases:
Agostini v. Felton, 521 U.S. 203 (1997) ........ passim
Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392
SEED 66nd nivbuduecsaceddoucceses 9
Bd. of Educ. of Westside Cmty. Sch. v. Mergens,
SP EE eidbcecdsccesdccbecoses 26
Bob Jones Univ. v. United States, 461 U.S. 574
DP tesiandneddssdedbeacavacheneseeucne 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,
Gas MEU codneecccescoeeses 1, 19, 20, 21
Corp. of Presiding Bishop of Church of Jesus Christ
of Latter-Day Saints v. Amos, 483 U.S. 327
DE Shétacdsevheesddaues beabecesceseuss 10
Dickerson v. United States, 530 U.S. 428 (2000) .. 21
Edwards v. Aguillard, 482 U.S. 578 (1987) ....... |
Employment Div., Dept of Human Res. v. Smith,
PP PEED cosceseeseccccoccess 12, 13, 23
vi
Cited Authorities
Page
Everson v. Bd. of Educ. of Ewing Tp., 330 U.S. 1
SOUS che seerdccenvessecédesebesdesnied 6, 7, 8,9
Good News Club v. Milford Cent. Sch., 531 U.S.
PPD cccocecendwwsdecsenete caneéesba l
Hernandez v. Comm 'r, 490 U.S. 680 (1989) ....... 26
Hurley v. Irish-American Gay, Lesbian and Bisexual
GO, SEP Gee SEP COED occ ccacesccccces 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)
TEETTITTITiTiTirTiTiriiiiriririrritrrr 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 ............... passim
Mueller v. Allen, 463 U.S. 388 (1983) .......... passim
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490
SUE onncocdatodsaddastentecidassésindas 24, 25
Pierson v. Ray, 386 U.S. 547 (1967) ............ 22
vil
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
SUED oeccdesccotacdevesscecconcesesevess 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 cc conccoccessventebesetesesovessess 14
Reynolds v. United States, 98 U.S. 145 (1878) .... 23
Rosenberger v. Rector and Visitors of Univ. of Va.,
$1S U.S. B19 (199S) 2... crccccccece. 12, 15, 16, 21
Rust v. Sullivan, 500 U.S. 173 (1991) ........... 15
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
EEE cocdcccceccoscnccensonanenssecoeses 16
Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999)
renseauvunceons bevesscsecdcsesseqeneeexs
Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir.
EEE acceneedcsdeesetnsognavsspencevenes 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)
vill
Cited Authorities
Page
State ex rel. Herbert v. Ferguson, 52 N.E.2d 980
(Cale 1944) 2. cccccncccccccccccccccesees 28
State ex rel. Squire v. City of Cleveland, 82 N.E.2d
TOD (Ole 1968) on ccccccccccccccescccccces 28
Tony and Susan Aiamo Found. v. Sec'y of Labor,
GO WES. BEG eoccceccscccceccccseses 25, 26
Turner Broad. Sys., Inc. v. FCC, 512 U.S.
GED GTEOD ccccciccccccesevevcccscces seeus 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 Dep't of Servs. for Blind,
GIO UE. GES GIS dh cccccccosccescvccess 9, 16, 17
Zobrest v. Catalina Foothills Sch. Dist., 509
it BT). PPPerrrrrrrrryvy Trier 1,9
United States Constitution:
ix
Cited Authorities
Page
Statutes:
FO UB.C. O TETHA) onc ccccccccvccesscvccccces 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
BED SoVevcsnsencddscccdeccecsocececcces 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:
Bam. Ce. Rake 7.8 wn ccccccccvccscccccvcccccces 6
Sup. Ct. Rule 37.B(a) .. 2. ccccccccsscccvecvees l
Sep. Ct. Rule 37.6 .. nc ccccccccccccccccvescees 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.
2
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, ethnicity, national
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. Jd.
Participating private schools are subject to oversight
by Ohio’s Superintendent of Public Education in several
3
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 te 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). If any 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
4
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 a particular idea.” Legal Servs. Corp. v. Velasquez, 531
U.S. 533, 541 (2001).
5
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 inessage
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 vic'ates
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 problei, would not cure
6
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.
$77, 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
7
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
religion to shield religion from governmental interference as
well as to maintain a nonsectarian government. James Madison
warned thet “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 reljgious 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
renehrenape tr wapuan bechnaoee ete ro"
is the mark of a free people.
Id. at $92.
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, !.,
concurring). Religious schools may use Ohio’s voucher funds
to support their general curricula no matter how much the
curricula may inculcate religious doctrines or other teachings.
Yet, Petitiorers 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
9
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.
10
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,
inovitably the ith the institution’s
message. In this case, the most striking manifestation of this
11
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
_
12
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
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.” /d. at 579.
13
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.” /d. 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
register schools that “teach” tolerance of other races and religions
and “advocate or foster” compliance with law. She may not
register schools that “advocate or foster” the opposite viewpoint,
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 nght
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 limited, as the Ohio statute is not, to “fighting words.”
505 U.S. at 381.
14
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, 4:1 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, 1208S. Ct. 1346, 14€ L. Ed. 2d 193 (2000),
15
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, 1158S. 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
16
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 opimon). 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.
17
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.
18
that necessarily follows from that inference, renders the
statute unconstitutional.
Ill, 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 musier 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.
ae gl ae
19
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
U.S. 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. Jd. 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.” Jd. at 783 (quoting Lemon, 403
U.S. at 613) (internal quotation omitted).
20
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.” /d.°
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.
21
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 circumstances 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
22
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.
23
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, Wasu. Post,
Oct. 16, 2001, at B1 (principal of Muslim school in Potomac,
Maryland advocated that Israel, “with its cursed population
. .. 18 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 moved 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.
24
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
must similarly determine whether religious doctrine regarding,
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
relaticnship 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
OLA
25
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).
26
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 schaol 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 sectarian 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
27
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]olicing 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
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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 Clause
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. . . .”).
The essential inquiry is whether the Ohio legislature would —
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
29
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.
30 ‘
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 JerFREY K. FRANCER
Pusic EDUCATION AND Rosert J. KATERBERG
ReiGious 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
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