# Amicus Curiae Brief — Arizona School Choice Trust v. Winn

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1669%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 932

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1669%3A7. Public record. Not legal advice.