Amicus Curiae Brief — Arizona School Choice Trust v. Winn

wun en. OS.

AUG 5 - 2010

Nos. 09-987, 09-988, 09-Aa EY IE CLERK

In the

Supreme Court of the United States

— i

vv

ARIZONA CHRISTIAN SCHOOL

TUITION ORGANIZATION, et al.

Petitioners,

Wa

KATHLEEN M. WINN, et al.,

Respondents.

_*

»

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Lao

\ if

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

-

—

JAMES S. BURLING

Counsel of Record

SHARON L. BROWNE

JOSHUA P. THOMPSON

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, Calitornia 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mazl: jsb@pacificlegal.org

E-mail: slb@pacificlegal org

E-mail: )pt@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

702

i

QUESTION PRESENTED

1. Arizons Revised Statute (A.R.S.)

section 43-1089 (Section 1089) is a facially neutral

program of private choice in education. Most

taxpayers who contribute to school tuition

organizations under Section 1089 contribute to

organizations that award scholarships to students

attending religious schools. Did the Court of Appeals

err in holding that Section 1089 has the purpose and

effect of advancing religion in violation of the

Establishment Clause, when the State does nothing to

influence the taxpayers’ or the school tuition

organizations choice?

1)

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................... }

TABLE OF AUTHORITIES .................. 11

INTEREST OF AMICUS CURIAEF ............. |

INTRODUCTION AND

SUMMARY OF ARGUMENT .........._.. 2

oe ta ae ah eS RE a oa ae a mre 4

1. SCHOOL CHOICE

PROGRAMS THAT REQUIRE

INDEPENDENT CHOICES

BY NON GOVERNMENT

ACTORS ARE NEUTRAL,

WITH RESPECT TO RELIGION ......._.. 4

Il. WHEN CHOICE IS

UNLEASHED IN EDUCATION,

PARENTS, STUDENTS, AND

TAXPAYERS REAP TIE DEMNEFIIS ...<. g

A. School Choice Improves

Students’ Academic Achievement ...___ 12

3. Special Needs Students

Benefit from School Choice 2.0.0.0. 16

C. School Choice Lowers

Educational Costs .............002~. 17

CONCLUSION ......0.................... 20)

il

TABLE OF AUTHORITIES

Page

Cases

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

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist.

y, Grumet, 512 U.S: GST O9ee) os ee ee 5

Bush v. Holmes, 919 So. 2d 392 (Fla. 2006) ....... 1

Cain v. Horne,

962 P.30 1178 (Ariz: DOO) 5 5 ci ces eis, ee YS

Everson. v. Bd. of Educ. of the Twp.

of Having, S390 US. 7 EY) an se et ees 4

Mitchell v. Helms, 530 U.S. 793 (2000) ...... 1, 5-6

Mueller v. Allen, 463 U.S. 388 (1983) ..........5,9

Rosenberger v. Rector & Visitors of

Unie aw Ve., SIS 4.5. BIS (ieee). cicero 5

Wells v. One2One Learning Found.,

PEL OG Soo Ce, WOU) hoa nee Claws 1

Widmar uv. Vincent, 454 U.S. 263 (1981) ......... i)

Wilson v. State Bd. of Educ.,

89 Cal. Rptr. 2d 745 (Cal. Ct. App. 1999)... 1

Winn vu. Ariz. Christian Sch. Tuition Org.,

562 F.3d 1002 (9th Cir. 2009).............. 7-8

Winn. v. Ariz. Christian Sch. Tuition Org.,

586 F.3d 649 (Sth Cir. 2008)... >... 5... § 10-11

Witters vu. Wash. Dep't of Servs. for

the Blind, 474-U.8. 4817 (1986) 26... ...0408; 6,8

lV

TABLE OF AUTHORITIES— Continued

Page

Zelman v. Simmons-Harris,

DO Ue Gas (ete). 6 oe oS 1-3, 6-9, 20-21

Zobrest v. Catalina Foothills Sch. Dist.,

I Ee PPR oe OAK kp ewe ey OO

United States Constitution

OE. CINE IIE oe a ne kk ae ea 2,4

State Statutes

24 5S. OtAl. ANN, 6 Or aO00- cece Rew eek te: 11

PPIE Tee CR. FPO eS iw le ek ce eee 16

Ce Oe on 2-4, 7-8, 11, 16, 21

See cae aie be Ree ee ea) 16

§ 49-1000OY ee eer 8

RL eMER I res BS ok eas ee ee ke ars 2,8

ga | RR Sh oy Se a ga 11

in. 400 ANN: 6 46-T2016 2. cc cee ae 1]

ee ee 6 i a hl eae 11

Ded Ce BAST TI ee eee 11

Ot ae Le ee eto s Shee sa 11

Rules of Court

Vv

TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

A.B. 279, 2009-10 Leg.,

ee eo ase aah a ae 1

Aud, Susan, Education by the Numbers:

The Fiscal Effect of School Choice Programs,

1990-2006 (Apr. 2007), The Friedman

Foundation for Educational Choice.

Executive Summary, available at http://www.

heartland.org/custom/semod_policybot/pdf/

21956.pdf (last visited Aug. 2, 2010) .... 0... 18

Barnard, John, et al., Principal Stratification

Approach to Broken Randomized Experiments:

A Case Study of School Choice Vouchers in

New York City, 98 J. Am. Statistical Assoc. 299

(June 2003), available at http://biosun

01 .mostat.jhsph.edu/~cfrangak/papers/sc/

vouchers.pdf (last visited Aug. 2, 2010) ....... 13

Chakrabarti, Rajashri, Can Increasing Private

School Participation and Monetary Loss in

a Voucher Program Affect Public School

Performance? Evidence from Milwaukee,

92 J. Pub. Econ. 1371 (June 2008), avatiable

at http://jideas.repec.org/p/wpa/wuwppe/

0512003. html (last visited Aug. 2, 2010) ...... 14

Vl

Continued

TABLE OF AUTHORITIES

Page

Chakrabarti, Rajashri, Jmpact of Voucher

Design on Public School Performance:

Evidence from Florida and Milwaukee

Voucher Programs, Staff Reports 315,

Federal Reserve Bank of New York (Jan. 2008).

avaiable at http://ideas.repec.org/p/ecm/nasm

04/221.htm] Gast visited Aug. 2, 2010) .......

Coulson, Andrew J., Arizona Public and Private

Schools: A Statistical Analysis, Goldwater

Institute Policy Report No. 213, Goldwater

Institute (Oct. 17, 2006), available at

http://www goldwaterinstitute org/article/

1851 (last visited Aug. 2.2010) .......... 19-20

Cowen, Joshua, School Choice as a Latent

Variable: Estimating the “Complier Average

Causal Effect” of Vouchers in Charlotte,

36 Policy Studies J. 301 (Nov. 2007), available

at http://www3.interscience.wiley.com/

journal/119400830/abstract?CRETRY=

L&SRETRY=0 (last visited Aug. 2, 2010) .....

Finn, Chester E., et al., Charter School Funding:

Inequity’s Next Frontier, Thomas B. Fordham

Institute, Fordham Foundation, at Major

Findings (2005), available at http://www.

defendcharterschools.org/CharterSchool

funding. pdf (last visited Aug. 2, 2010) .......

Vil

TABLE OF AUTHORITIES-—-Continued

Page

Florida Department of Education,

Office of Independent Education &

Parental Choice, Scholarship Success

Stories, available at http://www.

floridaschoolchoice.org/Information/

success_stories/scholarships.asp

(last visited Avg: 2, FUHO) <3 ss ee kee 12

Forster, Greg, A Win-Win Solution: The

Empirical Evidence on Hoiw Vouchers

Affect Public Schools, The Friedman

Foundation for Educational Choice,

Feb. 2009, avatlable at http://www.ed

choice.org/Research/Reports/A-Win-

Win-Solution----The-Empirical-Evdence-

on-Hlow-Vouchers-affect-Public-Schools

aspx (last visited Aug. 2, 2010) ..... 9-11, 14-15

Greene, Jay, Vouchers tn Charlotte,

Education Next (Summer 2001), availab/e

at http://educationnext.org/files/ednext

20012 _46b.pdf (last visited Aug. 2, 2010) ..... 13

Greene, Jay & Forster. Greg, Rising to the

Challenge: The Effect of School Choice

on Public Schools in Milwaukee and

San Antonio, Civic Bulletin. Manhattan

Institute (Oct. 2002), avatlable at http://

www.manhattan-institute.org/pdf/cb_27.

pdf (last visited Aug. 2, 2010) ............ 14-15

Vil

TABLE OF AUTHORITIES—Continued

Page

Greene, Jay P. & Forster, Greg, Vouchers

for Special Education Students: An

Evaluation of Florida’s McKay Scholarship

Program, Center for Civic Innovation

at the Manhattan Institute, Civic

Report No. 38, June 2003, available at

http://www. manhattan-institute.org/htm|]/

cr_38.htm (last visited Aug. 2, 2010) ......... 17

Greene, Jay, et al., Expanding Choice in

Elementary and Secondary Education,

Brown Center on Education Policy at

the Brookings Institute (Feb. 2, 2010),

available at http://www.brookings.cdu

/~/media/Fuiles/re/reports/2010/

0202_school_choice/0202 school_

choice.pdf (last visited Aug. 2, 2010) ......... 18

Greene, Jay: Peterson, Paul; & Du, Jiangtao,

School Choice tn Milwaukee: A Randomized

Experiment in Learning from School Chotce

(Paul Peterson & Brvan Hassel eds. 1998) .... 1:

bo

Groen, Ross & Murray, Vicki, Survey

of Arizona Private Schools: Tuition,

Testing, and Curricula, Goldwater Institute

Policy Report No. 199 (Jan. 5, 2005),

avatlable at http://www.goldwaterinstitute |

org/article/1299 (last visited Aug. 2, 2010) .... 19

H.B. 2754, 75th Leg., Reg. Sess. (Or. 2009) ...... ll

Howell, Willtam & Peterson, Paul,

The Education Gap. Brookings Institution

PUeee, Boe WrOVinee 2O0UG) 2 eee ee aa Ss 13

IX

TABLE OF AUTHORITIES—Continued

Page

Hoxby, Caroline Minter, Rising Tide,

Edueatio Next, Hoover Institution

(Winter 01), avatiadle at http://www.

heartland.org/custom/semod_policybot/

pdf/17457.pdf (last visited Aug. 2, 2010) ...... i4

Krueger, Alan & Zhu, Pei, Another Look at the

New York City School Voucher Experiment,

47 Am. Behav. Scientist 658 (Jan. 2004),

available at http:/Adeas.repec.org/p/nbr/nber

wo/9418.htm] (last visited Aug. 2, 2010) ...... 13

Rouse, Cecilia, Private School Vouchers

and Student Achievement, 113 Q. J.

of Econ. 553 (May 1998), available at

http://ideas.repec.org/p/pri/indrel/750.

html (last visited Aug. 2, 2010) .......... 12-13

S.B. 289, 75th Leg., Reg. Sess.,

Seriyinev. 2009) ........................ 11

S.B. 342, 61st Leg.

Reg. Sess... § 1(3)(b)-(c) (Mont. 2009) ......... 11

The Foundation for Educational Choice,

Erasing the Myths of School Choice,

Feb. 28, 2009, availab/e at

http://www.edchoice.org/Research/

Reports/Erasing-the-Myths-of-School-

Choice.aspx (last visited Aug. 2, 2010) .... 12-14

X

TABLE OF AUTHORITIES—Continued

Page

Wolf, Patrick, et al, Evaluation of the DC

Opportunity Scholarship Program: Final

Report, U.S. Department of Education

Institute of Education Sciences, National

Center for Educational Evaluation and

Regional Assistance (2010), available at

http://ies.ed.gov/ncee/pubs/20104018/

index.asp (last visited Aug. 2, 2010) ......... 1a

1

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.3(a), Pacific

Legal Foundation (PLF) respectfully submits this bricf

amicus curiae in support of Petitioners.’

PLF is a nonprofit, tax-exempt foundation

incorporated under the laws of the State of California,

organized for the purpose of litigating important

matters of public interest. Founded in 1973, PLF

provides a voice in the courts for mainstream

Americans who believe in limited government, private

property rights, individual freedom, and _ free

enterprise. PLF is headquartered in Sacramento,

California, and has offices in Washington, Florida, and

Hawaii. PLF has participated as amicus in many

cases involving kindergarten through 12th grade

(K-12) education reform including Zelman uv.

Simmons-Harris, 5386 U.S. 639 (2002): Mitchell v.

Helms, 530 U.S. 793 (2000); Cain v. Horne, 202 P.3d

1178 (Ariz. 2009); Bush v. Holmes, 919 So. 2d 392 (Fla.

2006); Wells v. One2One Learning Found., 141 P.3d

225 (Cal. 2006): and Wilson uv. State Bd. of Educ., 89

Cal. Rptr. 2d 745 (Cal. Ct. App. 1999).

This case raises important issues of constitutional

law as well as important policy considerations in the

realm of K-12 education. Amicus believes that its

* Pursuant to this Court's Rule 37.3(a), all parties have consented

to the filing of this brief. Letters evidencing such consent have

been filed with the Clerk of the Court.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

=

public policy perspectives and litigation experience

provide an additional viewpoint on the issues

presented in this case, which will be of assistance to

the Court in its deliberations.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Eight years ago in Zelman this Court held a

school choice program constitutional where the state

gave tuition aid directly to parents that the parents

could then use to cover tuition expenses at public or

private schools. Zelman, 536 U.S. at 645-46, 663. The

Zelman Court emphasized that the independent

private choices of parents shielded the program from

an Establishment Clause violation. Jd. at 652. The

existence of independent choice by nongovernment

actors shows that the government is remaining neutral

toward religion, and is not “respecting an

establishment of religion” as prohibited by the First

Amendment. U.S. Const. amend. [.

Ariz. Rev. Stat. § 43-1089 (Section 1089) provides

for scholarships to students “to attend any qualified

school of their parents’ choice.” Ariz. Rev. Stat. § 43-

1089(H)(3). Unlike Zelman, however, the state does

not give state funds directly to parents. Instead,

Section 1089 creates a multi-faceted scheme whereby

money can go to a sectarian school only if: (1) a

Student Tuition Organization (STO) is created that

independently chooses to provide scholarships to

religious schools; (2) multiple taxpayers independently

decide to donate a small ($500) amount to that STO

in order to claim a tax credit; and (8) parents

independently choose to apply for (and the STO grants)

a scholarship for a student to attend a private,

religious school. See Ariz. Rev. Stat. § 43-1089. Thus,

3

Section 1089 requires that numerous individuals make

independent private choices before any donations

(which are then claimed for tax credits) end up in

sectarian schools. The independent choices here are

significantly greater than were present in Zelman, and

ensure that no one would consider that the State of

Arizona directly funds religion.

While independent choice is fundamental to this

Court’s Establishment Clause jurisprudence, the

freedom to choose also underscores the important

policy implications of this Court’s decision. All too

often, government-run public schools provide a one-

size-fits-all mode] to education. Conversely, school

choice programs create incentives for schools to

improve, and once choice is injected into state

education systems, the positive results are dramatic.

As a result of choice, programs throughout the country

have improved student achievement and graduation

rates almost universally. Moreover, school choice

programs provide incentives for specialized schools

that can care for those children most in need of

increased attention and differentiated instruction.

This is of particular importance in Arizona, where its

state supreme court recently struck down a different

school choice program designed to help the state’s most

needy children. See Cain, 202 P.3d 1178. In addition,

school choice programs throughout the country save

taxpayers millions of dollars. When schools compete

for students, private schools in a competitive

environment will spend more resources on instruc-

tional materials and less on bureaucracy. With states

throughout the country facing severe budget deficits,

the money saved from school choice programs cannot

be discounted.

4

Section 1089 allows choice into Arizona schools.

Throughout the country, where choice in education is

present, parents, children, and taxpayers benefit.

Section 1089 provides hope to thousands of Arizona

familics and this Court’s decision will encourage other

states to implement similar programs nationwide.

Because Section 1089 requires independent choices

from parents, taxpayers, and STOs before any money

goes toward a religious school, it is neutral toward

religion. This Court should therefore reverse the

decision of the Court below.

ARGUMENT

I

SCHOOL CHOICE

PROGRAMS THAT REQUIRE

INDEPENDENT CHOICES BY

NON GOVERNMENT ACTORS ARE

NEUTRAL WITH RESPECT TO RELIGION

This Court has long recognized that the First

Amendment requires the government to remain

neutral toward religion.

That Amendment requires the state to be a

neutral in its relations with groups of

religious belicvers and non-believers; it does

not require the state to be their adversary.

State power is no more to be used so as to

handicap religions than it is to favor them.

Everson v. Bd. of Educ. of the Twp. of Ewing, 330 U.S.

1, 18 (1947).

[T]he [neutrality] principle is well grounded

in our case law, as we have [requently relied

explicitly on the general availability of any

i)

benefit provided religious groups or

individuals in turning aside Establishment

Clause challenges.

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,

512 U.S. 687, 704 (1994).

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

515 U.S. 819, 839 (1995), this Court noted that “a

significant factor in upholding governmental programs

in the face of Establishment Clause attack is

their neutrality towards religion.” Also, in Agostini

v. Felton, 521 U.S. 203, 231 (1997), this Court

emphasized that a program does not create a financial

incentive to undertake religious education where “aid

is allocated on the basis of neutral, secular criteria that

neither favor nor disfavor religion, and is made

available to both religious and secular beneficiaries

on a nondiscriminatory basis.” And in Mitchell, a

plurality of this Court observed that “we have

consistently turned to the principle of neutrality,

upholding aid that is offered to a broad range of groups

or persons without regard to their religion.” 530 U.S.

at $09 (plurality opinion).

When determining whether programs are ncutral

toward religion, the presence of independent choice by

nongovernmental actors makes programs more hkely

to have the requisite neutrality. Indeed, this Court

routinely emphasizes the importance of independent

choice when deciding Establishment Clause challenges.

See, e.g., Zobrest v. Catalina Foothills Sch. Dist., 509

U.S. 1, 10 (1993) ([T]he statute ensures that a

government-paid interpreter will be present in a

sectarian school only as a result of the private decision

of individual parents,”); Mueller v. Allen, 463 U.S. 388,

399 (1983) (“[Plublic funds become available [to

6

sectarian schools] only as a result of numerous private

choices of individual parents of school-age children.”);

Witters v. Wash. Dep’t of Servs. for the Blind, 474

U.S. 481, 487 (1986) (“|Ajny aid provided under

Washington's program that ultimately flows to

religious institutions does so only as a result of the

genuinely independent and private choices of aid

recipients.”).

In Mitchell, both the plurality opinion and

the concurring opinion stressed the importance

of independent choice. Both opinions noted that

governmental aid is permissible when, as_ the

concurrence puts it, “the aid was provided directly to

the individual student who, in turn, made the choice

of where to put that aid to use.” Mitchell, 530 U.S.

at 841 (O'Connor, J., concurring) (citing Witters,

474 U.S. at-488; Zobrest, 509 U.S. at 10). In these

circumstances, “any aid... that ultimately flows to

religious institutions does so only as a result of the

genuinely independent and private choices of aid

recipients.” Mutchell, 530 U.S. at 41 (O'Connor, J.,

concurring) (citation omitted).

Much of the briefing in this case centers around

the proper interpretation of Zelman, 536 U.S. 639. On

the question of neutrality and choice, however, this

Court was clear:

[W]here a yvovernment aid program = 1s

neutral with respect to religion, and provides

assistance directly to a broad class of citizens

who, in turn, direct government aid to

religious schools wholly as a result of their

own genuine and independent private choice,

the program is not readily subject to

challenge under the Estabhshment Clause.

~

A program that shares these features

permits government aid to reach religious

institutions only by way of the deliberate

choices of numerous individual recipients.

The incidental advancement of a religious

mission, or the perceived endorsement. of a

religious message, is reasonably attributable

to the individual recipient, not to the

government, whose role ends with the

disbursement of benefits.

Zelman, 536 U.S. at 682.

The court below recognized the importance of

independent private choice. Winn v. Ariz. Christian

Sch. Tuition Org., 562 F.8d 1002, 1015 (9th Cir. 2009).

Yet, had the court below properly considered the

interplay between neutrality and independent choice,

Section 1089 would have survived constitutional

scrutiny. Programs that require independent choices

by nongovernment actors before any dollars can

be accepted by a _ religious institution, satisfy

the Establishment Clause’s neutrality requirement.

Indeed, what distinguishes this case from Zelman is

the multiplicity of independent private choices that

occur before a sectarian school provides a scholarship

to any student. In his dissent to the denial of

rehearing en banc, Judge O’Scannlain summarized the

layers of choice inherent in Section 1089.

Multiple lavers of private, individual choice

separate the state from any religious

entanglement: the “government itself’ is at

least four times removed from any aid to

religious organizations. First, an individual

or group of individuals must choose to create

an STO. Second, that STO must then decide

8

to provide scholarships to religious schools.

Third, taxpayers have to contribute to the

STO in question. Finally, parents need to

apply for a scholarship for their student.

Winn v. Artz. Christian Sch. Tuition Org., 586 F.3d

649, 662 (9th Cir. 2009) (en banc) (O’Seannlain, J.,

dissenting).

The intent of Section 1089 was to provide “equal

access to a wide range of schooling options for students

of every income level by defraying the costs

of educational expenses incurred by parents.” Winn,

562 F.3d at 1012. Participation in Section 1089's

scholarship program by both schools and school tuition

organizations is based entirely on religiously neutral

criteria. Ariz. Rev. Stat. § 43-1089(H)(2) & (3). No

preference for religious schools ts given; no preference

for secular schools 1s given. /d.

Moreover, it is only through the “independent

and private choices” of parents, school tuition

organizations, and taxpayers that any government aid

flows to a religious school. S'TOs decide what type of

schools they want to support. Taxpayers decide which

STOs they want to direct their money towards.

Parents decide whether to apply for a scholarship

from an STO. Because taxpayers and parents

independently direct the flow of scholarships, public

funds ultimately reach individual schools only as a

result of the “genuinely independent and private

choices” of multiple nongovernment actors. See

Zelman, 536 U.S. at 651 (citing Witters, 474 U.S.

at 487). This Court has consistently held that when

“aid to parochial schools is available only as a result of

decisions of individual parents no ‘imprimatur of state

approval,’ can be deemed to have been conferred on any

9

particular religion, or on religion generally.” Mueller,

463 U.S. at 399 (citing Widmar v. Vincent, 454 U.S.

263, 274 (1981)); sce also Zelman, 536 U.S. at 652.

Amicus believes that a school choice program that

provides for the participation of all school children,

allows taxpayers to fund the STO of their choice, and

enables parents to apply to the STO of their choice, is

entirely consistent with this Court's principles of

neutrality and independent. choice. Since this Court’s

landmark decision in Zelman, states across the country

have been experimenting with different methods of

increasing choice throughout their educational

systems. The continued livelihood of many of these

programs is dependent upon this Court’s decision.

This Court should reverse the court below, and

reaffirm that the principles of neutrality and

independent choice underscore its Establishment

Clause jurisprudence.

II

WHEN CHOICE IS UNLEASHED IN

EDUCATION, PARENTS, STUDENTS,

AND TAXPAYERS REAP THE BENEFITS

Americans take advantage of choice every day,

from which grocery store to patronize to which

university to attend; those businesses strive to please

their customers. However, unlike grocery stores and

other important services that affect Americans on a

dauly basis, the current public education system often

locks students into particular schools based solely on

students addresses. This system does not allow many

options for parents when schools underperform or fail

to meet their children’s needs. See generally Greg

Forster, A Win-Win Solution: The Empirical Evidence

10

on How Vouchers Affect Public Schools, The Friedman

Foundation for Educational Choice, Feb. 2009, at 11

(Forster Article).” Though wealthy parents can move -

to another area or pay for private schoo} tuition out of

pocket, these options are not available to students from

impoverished backgrounds. Id.

In dissent to the denial rehearing en banc here,

Judge O’Scannlain recognized that the lower court's

ruling could severely limit the availability of school

choice options in states throughout the country.

I dissent... because... the panel's holding

casts a pall over comparable educational

tax-credit schemes in states across the

nation and could derail legislative efforts in

four states within our circuit to create

similar programs. In short, the panel's

conclusion invalidates an_ increasingly

popular method for providing school choice,

jeopardizing the educational opportunities of

hundreds of thousands of children

nationwide.

Winn, 586 F.3d at 659 (en bance) (O’Scannlain, J.,

dissenting). Indeed, school choice ts already playing an

important role in solving this country’s educational

crisis by encouraging competition, increasing academic

achievement, and lowering educational costs. At the

beginning of 2009, there were already 24 school

choice programs in 14 states and Washington, D.C.

Forster Article at 10. “Over 160,000 students use

these programs to attend private schools using public

> Avatiable at http://www-edchoice.org/Research/Reports/A-Win-

Win-Solution----The-Empirical-Evdence-on-How-Vouchers affec

t-Publie-Schools.aspx (last visited Aug. 2, 2070).

11

funds,” and these programs have shown dramatic

suecess in the areas including parental benefits,

student achievement. and lower educational costs. Jd.

To be sure, no two school choice programs are alike,

but they are united 1n providing choice to parents who

are otherwise locked into the pubhe school in

their geographical area. Indeed, Judge O’Scannlain

recognized the similarity between Section 1089 and the

“tax-credit schemes” in place (and being proposed) in

numerous states throughout the country. Winn, 586

F.3d at 659 (en banc) (O’Scannilain, J., dissenting)

(citing Fla. Stat. § 220.187; Ga. Code Ann.

§ 48-7-29.16; Ind. Code § 6-3.1-30.5; lowa Code

§ 422. 11S; 24 Pa. Stat. Ann. § 20-2005-B; R.I. Gen

Laws § 44-62-2: A.B. 279, 2009-10 Leg.. Reg. Sess.. § 1

(Cal. 3009): S AS a42 rast Ley., Reg. — § 1(3)(b)-(c)

(Mont. 2009); S.B. . 75th Leg.. Reg. Sess., § 6(1)

(Nev. 2009); IL.B. 27 fe Toth Leg., a e, oss. (Or.

2009)).

Without parental choice, schools “lack the positive

incentive for better performance that most other types

of service institutions take for granted.” Forster

Article at 11. Just as monopolies “provide poor quality

because they have little incentive to serve their clients

well[,]” so too, education services and_= schools’

responsiveness to consumer demand deteriorates when

supphers are isolated from consumer preferences. /d.

at 12. School choice programs break that monopoly,

giving parents options and mobility, thereby

disciplining inadequate schools and encouraging them

to create a better learning environment for students.

Thus, even public school students without vouchers

benefit from school choice because these programs

create competition among the existing public schools.

12

Therefore, 1t 1s unsurprising that school choice

programs are very popular with parents. On the

Florida Department of Education’s website, parents

have presented personal accounts of the way

school choice has changed their hves. See Florida

Department of Education, Office of Independent

Education & Parental Choice, Scholarship Success

Stories.? Some speak to the satisfaction that comes

with selecting schools that suit their children’s needs.

Id. Other parents focus on their children’s academic

improvement, or how for the first time, students

began to talk about college and their futures. /d. One

pleased parent of a child in a Florida voucher program

emphasized that school choice creates a system where

educational decisions are in the hands of families—so

parents “could no longer place the blame on others.” /d.

A. School Choice Improves

Students’ Academic Achievement

School choice has been credited with improving

academic achievement in K-12 education in locations

across the country. In ten studies of school choice

program cities across the nation’, researchers uscd

* Available at http://www -floridaschoolchoice.org/information/

success_stories/scholarships.asp (last visited Aug. 2, 2010).

* See The Foundation for Educational Choice, Erasing the Myths

of Schooi Choice, Feb. 28, 2009. avatiable at http://www.edchoree.

org/Research/Reports/Erasing-the-Myths-of-School-Choice.aspx

(last visited Aug. 2, 2010); Jay Greene, Paul Peterson, & Jiangtao

Du. Schoo! Chatce tn Milwaukee: A Randomized Experiment in

Learning from School! Choice (Paul Peterson & Bryan Hassel eds.

1998); Cecilia Rouse, Private School Vouchers and Student

Achievement, 113 Q. J. of Econ. 553 (May 1998). available at

http://Aideas.repec.org/p/pri/indrel/750. html (last visited Aug. 2,

(continued...)

13

random-assignment methods to select students to

receive an educational voucher. The results were

unmistakable. For example, in Erasing the Myths of

School Choice, researchers compared the progress of

voucher students with a control group of students over

periods from one to four years. The Foundation for

Educational Choice, Erasing the Myths of School

Choice. Researchers then randomly assigned which

students received vouchers and which did not, while

controlling for external factors such as previous

academic achievement. Jd. The voucher students

routinely showed better academic outcomes than the

control group. Jd. More, the studies revealed no

negative effects for voucher students. Jd. In all but

one, the positive results demonstrated, with a high

level of statistical certainty, that the improved student

achievement of all or most students was not mere

coincidence, but instead directly correlated to the use

of vouchers. /d. Reading and math levels increased

* (..continued)

2010); Jay Greene, Vouchers in Charlotte, Education Next

(Summer 2001), avaiable at http://educationnext.org/files/ednext

20012_46b.pdf (last visited Aug. 2, 2010); William Howell & Paul

Peterson, The Education Gap, Brookings Institution Press, 2002

(revised 2006): John Barnard, et al.. Principal Stratification

Approach to Broken Randomized Experiments: A Case Study of

School Choice Vouchers in New York City, 98 J. Am. Statistical

Assoc. 299 (June 2003), availiable at http:/Aiosun01.bdiestat.jhsph.

edu/~cfrangak/papers/sc/vouchers.pdf (last visited Aug. 2, 2010);

Alan Krueger & Pei Zhu, Another Look at the New York City

School Voucher Experiment, 47 Am. Behav. Scientist 658 (Jan.

2004), avaiable at http://ideas.repec.org/p/nbr/nberwo/9418. htm]

(last visited Aug. 2, 2010); Joshua Cawen, School Choice as a

Latent Variabie: Estimating the “Complier Average Causal Effect”

of Vouchers in Charlotte. 36 Policy Studies J. 301 (Nov. 2007),

available at httpv//www3.interscience.wilev.com/journal/1194003

30/abstract?CRETRY=1&SRETRY-0 (last visited Aug. 2, 2010)

14

anywhere from five to eleven points compared to the

control groups without vouchers. /d. Undoubtedly,

some subgroups benefitted more than others from the

voucher program (for example black students or

students scoring below the city median generally

showed more improvement). Nevertheless, half of the

studies evidenced improvement. for all voucher

students. ld.

Moreover, numerous empirical — studies”

demonstrate how vouchers have improved Milwaukee

public schools. In a 2002 study using a regression

analysis of the Milwaukee voucher’ program,

researchers found that “greater exposure to vouchers

had a positive effect on year-to-vear changes in public

school outcomes.” Forster Article at 17. That study

found that the positive effect of exposure to vouchers

was so strong that a school with all its students eligible

for vouchers could be “expected to outperform a school

* Caroline Minter Hoxby, Rising Tide, Education Next, Hoover

Institutron (Winter 2001), available at http://www.heartland.org/

custom/semod_policybot/pdf/17457.pdf (last visited Aug. 2, 2010);

day Greene & Greg Forster. Rising to the Challenge: The Effect of

School Choice on Public Schools in Milwaukee and San Antonio,

Civic Bulletin, Manhattan Institute (Oct. 2002), available ai

http://www.manhattan-institute.org/pdficb_27.pdf (last visited

Aug. 2, 2010); Rajashri Chakrabarti, Impact of Voucher Design

on Public School Performance: Evidence from Florida and

Milwaukee Voucher Programs, Staff Reports 315, Federal Reserve

Bank of New York (dan. 2008), avatlabie at http://ideas.repec.

org/p/ecm/nasm04/221.htmi (last visited Aug. 2, 2010); Rajashri

Chakrabarti, Can Increasing Private School Participation and

Monetary Loss in a@ Voucher Program Affect Publie School

Performance? Evidence from Milwaukee, 92 J. Pub. Econ. i371 ©

(June 2008), available at http://ideas.repec.org/p/wpa/wuwppe/

0512003.htm1] (last visited Aug. 2, 2010).

1

ql

with only half its students eligible by 15 percentile

points over four years.” Id.

In the Edgewood school district in San Antonio,

Texas, where 93% of the students were eligible for

lunch programs and where the district had a 97%

Hispanic population, researchers used a program that

provided vouchers for every student in the district.

Greene & Forster, Rising to the Challenge, at 6. They

found that Edgewood’s “year-to-year test score

gain outperformed those of 85 percent of school

districts in Texas.” /d. Researchers concluded that

where strong competition from private schools was

present, that “private schools... [drove] public school

improvements.” /d. at 7.

Graduation rates are also positively affected

by school choice programs. In June, 2010 the U.S.

Department of Education released its latest report on

D.C.’s Opportunity Scholarship Program (OSP):

researchers found that the offer of an OSP scholarship

increased students’ probability of completing high

school by 12 percentage points overall. See Patrick

Wolf, et al, Evaluation of the DC Opportunity

Scholarship Program: Final Report, U.S. Department

of Education Institute of Education Sciences, Nationa]

Center for Educational Evaluation and Regional!

Assistance (2010).° The graduation rate was 82% for

the group that had been offered vouchers, compared to

70% for the control group. Jd. at 41. Additionally, the

offer of an OSP voucher improved the graduation

prospects of students by 13 percentage points. Zd.

at 41.

* Available at http://ies.ed.gov/ncee/pubs/20104018/index.asp (last

visited Aug. 2, 2010).

16

B. Special Needs Students

Benefit from School Choice

Section 1089 specifically recognizes that STOs can

be used to benefit special needs students. See Ariz.

Rev. Stat. § 43-1089(H). Until last year, Arizona had

a separate voucher program designed specifically for

special need students. See Ariz. Rev. Stat. § 15-891

invalidated by Cain, 202 P.3d at 1185. The Arizona

legislature, through its efforts with Section 1089 and

the program struck down in Cain, have demonstrated

a strong commitment to improving the educational

circumstances of special needs students through

vouchers.

As seen in numerous studies using random

assignment methods, special needs students can

benefit greatly from school choice programs. For

instance, the McKay Scholarships for Students with

Disabilities Program, afforded over 20,500 disabled

Florida students the opportunity to attend a private

school during the 2008-09 school year. Disabilities

covered under the McKay program include K-12

students who are documented as having an intellectual

disability; a speech or language impairment; a hearing

impairment, including deafness; a visual impairment,

including blindness; a dual sensory impairment; an

emotional or behavioral disability: a specific learning

disability, including, but not limited to, dyslexia,

dyscalculia, or developmental aphasia; a traumatic

brain injury; a developmental delay; or autism

spectrum disorder.

Researchers have compared special education

services provided by public and private schools. Ina

study conducted by the Center for Civic Innovation at

the Manhattan Institute, researchers compared the

17

services for participants in the McKay voucher

program in both their private and public institutions.

Jay P. Greene & Greg Forster, Vouchers for Special

Education Students: An Evaluation of Florida’s McKay

Scholarship Program, Center for Civic Innovation at

the Manhattan Institute, Civic Report No. 38, June

2003.’ Parents reported dramatically higher rates of

satisfaction with their children’s academic progress:

93% were satisfied with the McKay school verses 33%

who were satisfied with their previous public school.

Id. at 4. One reason for the difference in satisfaction

levels may be because two-thirds of families reported

that public schools failed to provide all of the special

education services that they were required to provide

by law, while only 12% reported that private schools

did not provide services which they had promised to

provide. Jd. at 7.

This study also shows fewer instances of

victimization and behavior problems in _ private

schools than public schools. In public schools, nearly

47% of students were ridiculed for their disabilities

and almost 25% were physically assaulted. dd.

at 9. Conversely, the private schools showed only 5%

who were bothered and 6% who were assaulted. /d.

Similar programs for special needs students are in

place in Georgia, Ohio, and Utah.

C. School Choice Lowers

Educational Costs

School choice provides students with quality

educations at a fraction ofthe cost. From 1990 to 2006,

the nation’s school choice programs saved a total of

" Available at http://www.manhattan-institute.org/html/cr_38.

htm (last visited Aug. 2, 2010)

18

$422 million for loca! school districts and $22 million

for state budgets. Susan Aud, Education by the

Numbers: The Fiscal Effect of School Choice Programs,

1990-2006 (Apr. 2007), The Friedman Foundation

for Educational Choice, Executive Summary.”

Additionally, schools in choice programs generally

operate on a tighter budget than district schools do,

receiving from the government only about 80% per

pupil of the amount received by district schools.

Chester E. Finn, et al., Charter School Funding:

Inequtty’s Next Frontier, Thomas B. Fordham Institute,

Fordham Foundation, at Major Findings (2005).* In

many states benefitting from school choice, local

districts can retain a portion of funding which they

would have spent on the students in choice programs;

those extra tax dollars can be spread across the

remaining public school students when enrollment

declines take place. See Jay Greene, et al., Expanding

Choice in Elementary and Secondary Education, Brown

Center on Education Policy at the Brookings Institute

(Feb. 2, 2010).

In a Goldwater Institute study from 2005,

analysts found that absent private schools, the State of

Arizona and localities would have had to spend an

additional $260 million during the 1999-2000 school

year to educate the more than 44,000 children who

* Available at http://www.heartland.org/custom/semod_policybot/

pdf/21956.pdf (last visited Aug. 2, 2010).

* Available at http://www.defendcharterschools.org/CharterSchool

Funding.pdf (last visited Aug. 2, 2010).

" Available at http://www.brookings.edu/~/media/Files/rc/reports/

2010/0202_schvol_choice/0202_school_choice.pdf (last visited

Aug. 2, 2010).

19

reduced necessary pubhe school expenditures by

attending private schools. Ross Groen & Vicki Murray,

Survey of Arizona Private Schools: Tuition, Testing,

and Curricula, Goldwater Institute Policy Report

No. 199, at 16 (Jan. 5, 2005).'' The study estimated,

that from 2004 through 2016, if private schools

continued to educate just 5% of the state’s K-12

population, roughly 660,000 students would not have

to be educated in public schools, saving the state

roughly $2.6 billion. /d. at 18. The study noted that.

the savings from just one child beginning and

completing their K-12 education in a private school

could save the state and local governments nearly

$100,000 over 13 years. Id.

In a related study, the Goldwater Institute

conducted a survey of 325 private schools of which

nearly 150 responded. Andrew J. Coulson, Arizona

Public and Private Schools: A Statistical Analysis,

Goldwater Institute Policy Report No. 213, Goldwater

Institute (Oct. 17, 2006).'* The survey showed that

Arizona private schools spent $5,545 per pupil, more

than $2,000 less than the average Arizona public

school which spent $7,644. /d. at 7. The study also

showed that Arizona private school tuition was less

than half of the per-pupil public school average

revenue, /d. at 4. Even though the public schools were

spending more money, private schools had higher high

school graduation rates, higher college acceptance

rates, and better school facilities. /d. at 3-6. In 2005,

" Available at http://www.goldwaterinstitute.org/article/1299 (last

visited Aug. 2, 2010).

* Available at http://www.goldwaterinstitute.org/article/1851 (last

visited Aug. 2, 2010)

20

22.5% of Arizona private school students were

receiving tuition tax credit scholarships under the

Arizona Tuition Tax Credit program. /d. at 22.

Many respected empirical studies show that

school choice has numerous positive benefits. Parents

are able to find schools for their children which

best suit their needs. Competition creates positive

incentives for schools to improve and provide quality

education. Students are no longer exclusively tied to

public schools that have been determined for them by

their addresses. Families of special needs students,

minority students, and low-income students have

options beyond moving to other districts or paying

the entirety of private school tuition. School choice

programs decrease educational costs and save states

milhons of dollars annually, and provide superior

educational experiences. ‘The ability of school choice to

flourish is imperative because the success of future

school choice programs is a key clement in solving the

current American K-12 educational crisis.

CONCLUSION

Since this Court’s decision in Zelman, school

choice has taken off in Amenca. Hundreds of

thousands of children have escaped failing government

schools, seeking and finding wonderful educational

opportunities. At less than the cost of public schools,

school choice has improved student achievement, and

provided special needs students with schools geared

toward their unique requirements. As a result, school

choice has been applauded by parents, students, and

taxpayers nationwide.

21

This Court is now presented with a follow-up to

Zelman. Inruling on Establishment Clause challenges

to school programs in the past, this Court has

continuously emphasized the importance of neutrality

and independent choice. Arizona's Section 1089 fulfills

both of these requirements. Section 1089 is neutral

toward religion by not preferring sectarian over secular

schools in either schools receiving funds or STOs

that provide funds. Furthermore, Section 1089 has

multiple levels of independent choice before any money

can go to a sectarian school. Therefore, the Court

should reverse the decision of the lower court.

DATED: August, 2010.

Respectfully submitted,

JAMES S. BURLING

Counsel of Record

SHARON L. BROWNE

JOSHUA P. THOMPSON

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

E-mail: jsb@pacificlegal.org

K-mau: slb@pacificlegal org

Ki-mail: jpt@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation