Opposition Brief — Bagley v. Raymond School Department

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No. 99-163

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aA ib Les

IN THE i |

Sigwreme Court of the United States

CYNTHIA AND ROBERT BAGLEY, GARY AND CYNTHIA ST.

PIERRE, DENNIS AND PATRICIA COLE, RICKY AND MARY

THORNTON, AND JACK AND STACIA FITCH,

Petitioners,

RAYMOND SCHOOL DEPARTMENT, MAINE DEPARTMENT

OF EDUCATION and its COMMISSIONER J. DUKE ALBA-

NESE, TIMOTHY HUMPHREY, JANE HUMPHREY, FRANK

McDERMOTT, TIMOTHY MORIN, JOAN Morin, TIM-

OTHY FITZGERALD, KEN WILLIAMS, BARBARA WIL-

LIAMS, and the MAINE ClIviIL LIBERTIES UNION,

Respondents.

On Petition for a Writ of Certiorari to the

Maine Supreme Judicial Court

Sitting as the Law Court

BRIEF IN OPPOSITION OF

RESPONDENTS TIMOTHY HUMPHREY, ET AL.

AND MAINE CIVIL LIBERTIES UNION

ROBERT H. CHANIN *

JOHN M. WEST

ANDREW D. ROTH

BREDHOFF & KAISER, P.L.L.C.

1000 Connecticut Ave., N.W.

Suite 1300

Washington, D.C. 20036

(202) 833-9340

* Counsel of Record

DONALD F.. FONTAINE

FONTAINE & BEAL, P.A.

482 Congress Street

P.O. Box 7590

Portland, Maine 04112

(207) 879-1879

JEFFREY THALER

BERNSTEIN, SHUR, SAWYER

& NELSON

100 Middle Street

Portland, Maine 04101

(207) 774-1200

WILSON - Eras PRINTING Co., INc.

+ 789-0096 - WASHINGTON, D.C. 20001

<r @

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE CASE

A. Statement of Facts 1

B. Proceedings Below

C. The First Circuit’s Subsequent Decision in

Strout v. Albanese 5

REASONS FOR DENYING THE WRIT 6

THE INSTANT CASE DOES NOT PROVIDE AN

APPROPRIATE VEHICLE FOR RESOLVING

THE ESTABLISHMENT CLAUSE QUESTION

RAISED BY VOUCHER PROGRAMS THAT IN-

CLUDE SECTARIAN PRIVATE SCHOOLS........ 6

A. This Case Does Not Involve A Program Pursu-

ant To Which Public Funds Are Used To Pay

For A Sectarian Private School Education........ 7

B. The Conclusion Of The Court Below That The

Inclusion Of Sectarian Private Schools In

Maine’s Voucher Program Would Violate The

Establishment Clause Was Not Necessary To

The Disposition—And Rejection—Of Petition-

ers’ Equal Protection Clause Claim 1l

CONCLUSION 19

ii

TABLE OF AUTHORITIES

CASES Page

' Agostini v. Felton, 521 U.S. 208 (1997) ................. 8,17

Allied Stores of Ohio, Inc. v. Bowers, 358 U.S.

Be CGD cecccetasesinstessisiicnsintiinenatiedeeasiiihdtal iattiateees 16

Brusca v. Missouri, 332 F. Supp. 275 (E.D. Mo.

1971), aff'd, 405 U.S. 1050 (1972) ~....0.00002..... 18, 14, 17

Committee for Public Education v. Nyquist, 413

Civile GOP CUMPUUD ccceusectanstesnnbseitntpesditbicnmeitendiniediainiicieias 7,8

Everson v. Board of Education, 330 U.S. 1

CIGD cinraniiecosseuasithinscosianbiaieasnasdbacai mene ieae 14

FCC v. Beach Communications, Inc., 508 U.S. 307

CI cescisecssacisvacnisinehvtervcdanisstbietisiadeensibi alin ate ane: 16

Hicks v. Miranda, 422 U.S. 382 (1975) ................... 13

Lehnhausen v. Lake Shore Auto Parts, 410 U.S.

Et: SE ee : 16

Lemon v. Kurtzman, 403 U.S. 602 (1971)................ 8

Leutkemeyer v. Kaufmann, 364 F. Supp. 376 (W.D.

Mo. 1978), aff’d, 419 U.S. 888 (1974) ....... 13, 14, 15, 17

Nordlinger v. Hahn, 505 U.S. 1 (1992) ................... 16

Sherbert v. Verner, 874 U.S. 398 (1968) ............... 4

Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999)... 5, 6,

15, 18

STATUTES

, We FER Sf. Reese cree ayes 2

we REPS SC: | Re 2

IN THE

Supreme Court of the United States

No. 99-163

CYNTHIA AND ROBERT BAGLEY, GARY AND CYNTHIA ST.

PIERRE, DENNIS AND PATRICIA COLE, RICKY AND MARY

THORNTON, AND JACK AND STACIA FITCH,

¥y Petitioners,

RAYMOND SCHOOL DEPARTMENT, MAINE DEPARTMENT

oF EDUCATION and its COMMISSIONER J. DUKE ALBA-

NESE, TIMOTHY HUMPHREY, JANE HUMPHREY, FRANK

McDerRMoTT, TimoTHy Morin, JoAN Morin, TIM-

OTHY FITZGERALD, KEN WILLIAMS, BARBARA WIL-

LIAMS, and the MAINE Civil LIBERTIES UNION,

Respondents.

On Petition for a Writ of Certiorari to the

Maine Supreme Judicial Court

Sitting as the Law Court

BRIEF IN OPPOSITION OF

RESPONDENTS TIMOTHY HUMPHREY, ET AL.

AND MAINE CIVIL LIBERTIES UNION

Respondents Timothy Humphrey, ef al. and Maine Civil

Liberties Union, defendants-intervenors in the proceedings

below, submit this Brief in Opposition to the Petition for

a Writ of Certiorari.

COUNTERSTATEMENT OF THE CASE

A. Statement of Facts

The State of Maine requires all school districts to pro-

vide a free kindergarten through twelfth grade education

2.

to its residents. 20-A M.R.S.A. § 1001(8). School dis-

tricts may fulfill this statutory obligation by operating

their own public schools, or by paying the tuition in-

curred by resident families in sending their children to

public or approved private schools, pursuant to the State’s

education tuition program (“voucher program”). Ap-

pendix to Petition for a Writ of Certiorari (“Pet. App.”)

at 1-2,

Approximately half of the school districts in Maine

satisfy their statutory obligation by operating public ele-

mentary and secondary schools. The other half satisfy

their obligation either wholly through the voucher pro-

gram, or by operating some schools—usually elementary

—and paying tuition for pupils to attend those schools

which the school districts do not operate. Id. at 3.

Prior to 1981, sectarian private schools were eligible to

participate in the Maine voucher program. In 1981, how-

ever, the Maine Legislature made such schools ineligible

for the program by amending the governing statute to pro-

vide that “[a] private secondary school may be approved

for the receipt of public funds for tuition purposes only

if it . . . [i]s a nonsectarian school in accordance with

the First Amendment of the United States Constitution.”

20-A M.R.S.A. § 2951(2). This statutory amendment

was in response to an opinion by the Maine Attorney

General that the inclusion of sectarian schools in the

voucher program violated the Establishment Clause of

the First Amendment. Pet. App. at 3-4.

Petitioners are the parents of children residing in the

Raymond School District (“Raymond”), which does not

operate a public high school, but instead provides sec-

1If a school district elects to fulfill its statutory obligation

through the voucher program, it pays the tuition directly to the

public or approved private school in question. Pet. App. at 2-3.

3

ondary education through the voucher program. In 1997

—some sixteen years after the voucher program had been

amended specifically to exclude sectarian private schools—

petitioners enrolled their children at Cheverus High School

—a pervasively sectarian private school operated by the

Society of Jesus—and demanded that Raymond pay the

tuition. When Raymond refused—citing the voucher pro-

gram’s specific exclusion of sectarian private schools—

petitioners brought suit in state court against Raymond,

the Maine Department of Education, and the Commis-

sioner of Education, asserting, inter alia, that their rights

under the Free Exercise, Establishment, and Equal Pro-

tection Clauses of the United States Constitution had

been infringed by Raymond’s refusal to pay the tuition.

Id. at 4-6.?

B. Proceedings Below

The trial court granted motions for summary judgment

by defendants and intervening defendants, and petitioners

appealed as of right to the Supreme Judicial Court of

Maine. That court framed the issues before it on appeal

as follows:

This appeal presents a unique question, requiring

that we articulate with precision the issues before

us. Unlike most recent cases addressing educational

programs that provide state funding for religious

schools, we are not called upon to determine whether

a particular program in which state funds benefit

religious schools violates the Establishment Clause.

2 Petitioners also claimed a violation of their rights under the

Maine Constitution. The court below found that the Maine Con-

stitution was co-extensive with the United States Constitution in

all relevant respects, Pet. App. at 8, and thus framed the issues

presented solely in terms of whether the Maine voucher program

violated the latter constitution.

4

Instead, we are presented with the opposite question:

whether a tuition program that specifically excludes

religious schools violates any of three constitutional

provisions: the Establishment Clause of the First

Amendment; the Free Exercise Clause of the First

Amendment; or the Equal Protection Clause of the

Fourteenth Amendment. These distinctions are crit-

ical to our analysis. [/d. at 6-7 (footnote omitted).]

The court below gave short shrift to petitioners’ Free

Exercise Clause claim. The Maine voucher program does

not violate that Clause, the court found, because “ ‘[t]he

fact that government cannot exact from [a citizen] a

surrender of one iota of [her] religious scruples does not,

of course, mean that [she] can demand of government a

sum of money, the better to exercise them. For the Free

Exercise Clause is written in terms of what the govern-

ment cannot do to the individual, not in terms of what

the individual can exact from the government.’” Jd. at

14 (quoting Sherbert v. Verner, 374 U.S. 398, 412

(1963) (Douglas, J., concurring) ) (brackets by court).

Nor was the court below at all impressed by petitioners’

Establishment Clause claim, noting that that Clause “has

no role in requiring government assistance to make the

practice of religion more available or easier. It simply

does not speak to governmental actions that fail to sup-

port religion.” Pet. App. at 17.

Although the Maine Supreme Court concluded that

petitioners’ claim that the voucher program violated the

Equal Protection Clause “present[ed] an important issue

worthy of evaluation,” id. at 19, it ultimately rejected

that claim as well. The court’s stated reason was that

Maine has a constitutionally-valid justification for exclud-

ing sectarian private schools from its voucher program,

inasmuch as the inclusion of such schools in the program

would violate the Establishment Clause. Jd. at 18-46.

lll

5

Justice Clifford dissented from that portion of the

lower court’s ruling rejecting petitioners’ Equal Protec-

tion Clause claim, being of the view that “a more narrowly

tailored tuition program could be created that would

lessen the discrimination based on religion, while still

complying with the Establishment Clause.” Id. at 53.

C. The First Circuit’s Subsequent Decision in Strout v.

Albanese

Approximately one month after the Maine Supreme

Court’s decision in this case, the United States Court of

Appeals for the First Circuit decided Strout v. Albanese,

178 F.3d 57 (1st Cir. 1999), which involved a virtually-

identical (and contemporaneous) constitutional challenge

to Maine’s voucher program.* The First Circuit majority

saw the case in precisely the same terms as did the Maine

Supreme Court, and ruled accordingly. See 178 F.3d at

60-65. But Judge Campbell wrote separately to state his

view that—in rejecting plaintiffs’ Equal Protection Clause

claim—there was “no need whatever to reach out and

decide the thorny . . . issue” of whether the inclusion of

sectarian private schools in the voucher program would

violate the Establishment Clause. Id. at 68 (Campbell,

J., concurring). In explaining that view, Judge Camp-

bell stated:

I see the Maine Legislature, in 1981 and to this

moment, as having rationally and prudently excluded

sectarian schools because of a well-founded concern

—whether or not ultimately correct—that to do

otherwise will or may violate the establishment clause.

3 The one notable difference was that in the federal court lawsuit

plaintiffs added substantive due process and free speech claims to

their Free Exercise. Establishment, and Equal Protection Clause

claims. These additional claims were rejected “out of hand” by the

First Circuit. 178 F.3d at 65-66.

6

The existence of that fear is rational enough, I think,

to meet equal protection (and free exercise) require-

ments, however defined. [/d.]

REASONS FOR DENYING THE WRIT

THE INSTANT CASE DOES NOT PROVIDE AN AP-

PROPRIATE VEHICLE FOR RESOLVING THE ES-

TABLISHMENT CLAUSE QUESTION RAISED BY

VOUCHER PROGRAMS THAT INCLUDE SECTARIAN

PRIVATE SCHOOLS

Petitioners indicate that “school choice programs” that

allow pupils to attend private schools—including sectarian

private schools—at taxpayer expense recently have been

enacted in Wisconsin, Ohio and Florida, Petition for a

Writ of Certiorari (“Pet.”) at 22-23, that “serious [albeit

unsuccessful] efforts to enact school choice programs

occurred in a number of other states this past year, in-

cluding Pennsylvania, New Mexico, and Texas,” id. at 23,

and that “concerns” about whether “the inclusion of reli-

gious choices is constitutionally permissible . . . make it

difficult for conscientious legislators to know what to do.”

Id. Petitioners conclude that “[t]he conflicting jurispru-

dence among various state and federal courts on [the]

important question [of whether and under what circum-

stances public funds can be used to pay for pupils to

attend sectarian private schools] necessitates resolution

by this Court.” Id. at 25.

There can be no serious dispute on this latter score.

Indeed, in the Petition for a Writ of Certiorari that was

filed with this Court on August 31, 1998 in Jackson v.

Benson, No. 98-376 (“Jackson Pet.”), the opponents of

the Wisconsin voucher program asserted that resolution

of this question “is central both to the development of

this Court’s Establishment Clause jurisprudence and to

7

the formulation of this nation’s education policy... .”

Jackson Pet. at 9. The dispositive question for present

purposes, however, is not whether this Court should re-

solve the important Establishment Clause question raised

by voucher prograins that include sectarian private schools.

We submit that the answer to this question clearly is

“yes.” * The question is rather whether the instant case

provides an appropriate vehicle for doing so. As we

demonstrate below, the answer to this latter question just

as clearly is “no.”

A. This Case Does Not Involve A Program Pursuant To

Which Public Funds Are Used To Pay For A Sec-

tarian Private School Education

We begin with the fact that—unlike Jackson v. Benson,

and the Ohio and Florida cases referenced in the Peti-

tion, see Pet. at 15-16, 23—this case does not even

involve a program pursuant to which public funds are

used to pay for pupils to attend sectarian private schools,

and, as such, does not directly present the question of

whether such a program violates the Establishment Clause.

The court below put the point as follows:

[W]e are presented with the opposite question:

whether a tuition program that specifically excludes

religious schools violates any of three constitutional

provisions: the Establishment Clause of the First

Amendment; the Free Exercise Clause of the First

4This Court already addressed this question in Committee for

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

on Establishment Clause grounds a New York voucher program.

In suggesting that there is a need for further guidance from this

Court, it was the position of petitioners in Jackson v. Benson and

of respondents here that this Court should grant review in order to

reaffirm that Nyquist is still good law.

Amendment; or the Equal Protection Clause of the

Fourteenth Amendment. [Pet. App. at 7 (emphasis

added ).]

The consequences of this distinction are, as the court

below recognized, “critical to our analysis.” Jd. Because

the Maine statute does not provide for public funding of

sectarian private school education, there is no basis for

applying the largely fact-based criteria that were found to

be determinative by this Court in Committee for Public

Education v. Nyquist, 413 U.S. 756 (1973)—~i.e., “[flirst,

the statute must have a secular legislative purpose; second,

its principal or primary effect must be one that neither

advances nor inhibits religion . . . and finally, the statute

must not foster ‘an excessive government entanglement

with religion,’” Lemon v. Kurtzman, 403 U.S. 602, 612-

13 (1971). Nor is there a factual record on the basis of-

which to determine whether and to what extent such a

use of public funds is in compliance with the “safeguards”

that informed this Court’s decision in Agostini v. Felton,

521 U.S. 203, 235 (1997).

The court below put this point in sharp focus with re-

gard to the question of excessive entanglement:

We could not, however, make a final determination

on this issue on the record before us. Because the

tuition program has not included religious schools for

the past 18 years and has therefore not encountered

problems of entanglement, neither the rules nor the

practical application of the statutory requirements

were addressed in detail in the Superior Court.*

[Pet. App. at 43.]

In the accompanying footnote—fn. 35—the court added:

Ordinarily, a court undertaking an entanglement

analysis does so in the context of reviewing a state

s

program that does provide aid to a religious institu-

tion. [(Emphasis in original).]

Even the dissenting Justice in the court below (Justice

Clifford) acknowledged the need to look to the spe-

cific terms under which public funds are made available

to pay for a sectarian school education in order to deter-

mine whether “Establishment Clause violations may be

avoided by a tuition program that does not entirely ex-

clude religious schools,” suggesting that the answer might

be “yes” if the voucher program “provides more limited

tuition with reasonable restrictions conditioning the use

of that aid.” Pet. App. at 52. To illustrate the point,

Justice Clifford opined that “[a] tuition program with

similar or greater restrictions and conditions [than the

voucher program sustained by the Wisconsin Supreme

Court in Jackson v. Benson] could be fashioned within

the framework of the current [Maine] statute with very

little effort on the part of the State.” Pet. App. at 53.

Justice Clifford outlined this hypothetical voucher program

as follows:

Tuition in less substantial amounts could be au-

thorized to benefit parents of children in religious

schools. The tuition aid could be directed through

the parents to avoid restrictions on direct aid and

the State could require participating schools to ac-

cept an “opt-out” provision. In addition to the re-

strictions set forth in the Wisconsin program, the

State could adopt reasonable conditions and restric-

tions on the use of the State aid, insuring that the

moneys would not be used to directly subsidize the

religious functions of the schools, avoiding both

direct aid of religion and excessive entanglement of

the State in religion. [Jd.]

The important point for present purposes is not whether

Justice Clifford’s hypothetical voucher program would

10

pass constitutional muster, but his recognition of the fact

that this question cannot be answered in the abstract.®

Petitioners, on the other hand, fail to grasp this critical

distinction between what is and what might be. Thus, ’

they repeatedly refer in their Petition not to the Maine

voucher program that in fact is before this Court, but I

rather to the program that would be at issue if the Maine

Legislature had decided to include sectarian private schools,

and the latter program had been challenged as violative of

the Establishment Clause. See, e.g., Pet. at 12 (“The

Maine program, however, is similar to the programs in

Everson and Allen in that it benefits all students and

epitomizes precisely the sort of neutral program this

Court made a specific point of not foreclosing in Ny-

quist.”); id—at 18 (“Maine’s tuitioning system is the

epitome of such a neutral, choice-driven system... .”).

We need not belabor the point. The answer to the ques-

tion of whether and under what circumstances public funds

can be used to pay for a sectarian private school education

is, as petitioners assert, “central both to the continued de-

velopment of this Court’s First Amendment jurisprudence

and to vital efforts being undertaken in many states to im-

prove elementary and secondary education.” Pet. at 11.

See also Jackson Pet. at 9 (“That question is central both

to the development of this Court’s Establishment Clause

jurisprudence and to the formulation of this nation’s edu-

5 Compare the following observation in the majority opinion

below: |

While it may be possible for the Legislature to craft a pro-

gram that would allow parents greater flexibility in choosing

private schools for their children, the current program could

not easily be tailored to include religious schools without ad-

dressing significant problems of entanglement or the advance-

ment of religion. It is up to the Legislature, not the courts, to

determine whether and how to attempt to structure such a

program.) [Pet. App. at 45 (emphasis added).]

it cat A, A ES ih ict a iE ata

11

cation policy ....”). But this important constitutional

question should be answered in a case that involves a

program that does in fact provide financial aid to sectarian

private schools, and that comes to this Court with an

appropriate factual record for constitutional analysis. This

is clearly not such a case.

B. The Conclusion Of The Court Below That The Inclu-

sion Of Sectarian Private Schools In Maine’s Voucher

Program Would Violate The Establishment Clause

Was Not Necessary To The Disposition—And Rejection

—Of Petitioners’ Equal Protection Clause Claim

Petitioners formulate the Question Presented as fol-

lows:

Does the establishment clause of the U.S. Constitu-

tion require the exclusion of religious schools from

Maine’s tuitioning program, which allows parents

to choose from an array of public and private schools

for their children’s education?

This formulation is at best misleading because it implies

that the “holding” of the Maine Supreme Court is bot-

tomed on the Establishment Clause, and that the Petition

seeks review of that holding. But this is not so, and it is

important to make clear precisely how the Establishment

Clause factors into the lower court’s decision.

Petitioners contended in the court below, inter alia,

that the Maine voucher program violates the Establish-

ment Clause because it excludes sectarian private schools.

The Maine Supreme Court summarily disposed of that

claim, holding that that Clause “has no role in requiring

government assistance to make the practice of religion

more available or easier. It simply does not speak to

governmental actions that fail to support religion.” Pet.

App. at 17. That is the only Establishment Clause hold-

12

ing in this case, and petitioners do not challenge it before

this Court.®

The Establishment Clause also came into play in the

lower court’s analysis of petitioners’ Equal Protection

Clause claim. The court rejected that claim because it

concluded that Maine had a constitutionally-valid justifi-

cation for excluding sectarian private schools from its

voucher program—i.e., that the inclusion of such schools

would violate the Establishment Clause. Pet. App. at

18-46. Petitioners do not—at least in terms—ask this

Court to review the lower court’s rejection of their Equal

Protection Clause claim, but rather to determine whether

the reason given by the court for that rejection was proper.

We submit that this Court should deny that request, inas-

much as the position taken by the court below vis-a-vis

the Establishment Clause was not necessary to its dispo-

sition—and rejection—of petitioners’ Equal Protection

Clause claim.

1. Although the bulk of the lower court’s decision was

devoted to petitioners’ Equal Protection Clause claim, see

Pet. App. at 18-45, its entire analysis was conducted in

an arguendo context. The court noted at the outset that

petitioners’ “argument turns . . . on the fact that the

State chooses to include private schools in the tuition pro-

gram but excludes private religious schools.” Jd. at 19.

The court then indicated that petitioners lacked standing

to make this argument, and that this in and of itself was

sufficient reason to reject their Equal Protection Clause

claim:

In essence, the parents claim that Cheverus [High

School] is treated differently because it is a religious

school, not that the parents are treated differently

6 Petitioners likewise do not challenge the lower court’s holding

that their Free Exercise Clause claim is meritless.

13

because they are Catholic. Ordinarily, the Equal

Protection claim here would be asserted, not by

potential clients of the excluded institution, but by

the school itself.’ Cheverus, however, is not party

to this action. [Jd.]

Because the court “conclude{d] that the parents present

an important issue worthy of evaluation,” it nonetheless

proceeded to “assess the parents’ Equal Protection argu-

ment assuming arguendo that the parents’ lack of oppor-

tunity to have the State pay the tuition for their children

to attend a private religious school results in their own

disparate treatment on the basis of their religion.” Id.

(emphasis in original).

In short, the conclusion of the court below that peti-

tioners lacked standing to make their Equal Protection

Clause argument provides an independent basis for sus-

taining the court’s judgment.

2. Even if we go further, and consider the lower

court’s Equal Protection Clause analysis on its own terms,

the court’s determination that the inclusion of sectarian

private schools in Maine’s voucher program would violate

the Establishment Clause—although correct—was not in

any event necessary to the disposition—and rejection—

of petitioners’ Equal Protection Clause claim. As we now

show, that claim should have been rejected—as we urged

below—on the basis of this Court’s summary affirmances

of the three-judge district court decisions in Brusca v.

Missouri, 332 F. Supp. 275 (E.D. Mo. 1971), aff'd, 405

U.S. 1050 (1972), and Luetkemeyer v. Kaufmann, 364

F. Supp. 376 (W.D. Mo. 1973), aff'd, 419 U.S. 888

(1974).?

7A summary disposition by this Court is, of course, no less of

a controlling precedent in the lower courts then a plenary disposi-

tion. Hicks v. Miranda, 422 U.S. 332, 344 (1975).

14

Brusca involved a federal constitutional challenge to

provisions of the Missouri Constitution and implementing

Statutes providing for the funding of a system of free

public education, while at the same time barring all forms

of tuition assistance to parents wishing to send their chil-

dren to sectarian private schools. 332 F. Supp. at 276.

Like petitioners here, the parents in Brusca argued that

tuition assistance by the State would not violate the Es-

tablishment Clause, and that, therefore, the State “den[ied]

them the equal protection of the laws” by refusing such

assistance while providing its equivalent to parents utiliz- ;

ing the public schools. Jd. The Brusca court rejected this ;

analytical approach, stating that “[t]he issue presented ;

. . . iS not so much what Missouri may do [consistent with

the Establishment Clause,] but what it must do in aid of

religious education.” Jd. (emphasis in original). Viewing

the issue in those terms, the court summarily rejected the

parents’ Equal Protection Clause claim, finding that

traditional rational basis scrutiny applied, and that there

was “nothing arbitrary or unreasonable in the determina-

tion of the State to deny its funds to sectarian schools or

for religious instruction.” Jd. at 279.

Luetkemeyer involved a constitutional challenge to

“those statutes of the State of Missouri which provide for

transportation of public school pupils to and from school

but which do not provide like transportation for the

pupils of church-related schools.” 364 F. Supp. at 377.

Given this Court’s decision in Everson v. Board of Edu-

cation, 330 U.S. 1 (1947), it was conceded in Leutkemeyer

that the Establishment Clause did not prevent Missouri

from providing “like transportation for the pupils of

church-related schools.” As in Brusca, however, the

Luetkemeyer court found that cases defining the prohibi-

tive scope of the Establishment Clause “did not relate to

the [Equal Protection Clause] question presented,” inas-

schimaiaiiiaa eaaaaaa |

15

much as “[p]rinciples which state what a State may do

may not properly be read as a command to what a State

must do.” 364 F. Supp. at 381 (emphasis in original).

And, like the Brusca court, the Luetkemeyer court re-

jected the parents’ Equal Protection Clause claim. Apply-

ing rational basis scrutiny, the court found nothing “irra-

tional” about “the State of Missouri’s decision to promote

the separation of church and state by refusing to provide

school bus transportation to church-sponsored school

pupils when it does provide that service to public school

pupils.” Jd. at 382.

Brusca and Luetkemeyer stand for the proposition that

a state constitutional or statutory provision excluding sec-

tarian private schools from an otherwise “neutral” educa-

tional program does not run afoul of the Equal Protection

Clause—without regard to whether a different state con-

stitutional or statutory provision including sectarian pri-

vate schools in the program would violate the Establish-

ment Clause.* That being so, the decision of the court

below rejecting petitioners’ Equal Protection Clause claim

was correct, without regard to the correctness vel non of

the Establishment Clause reasoning that led the court to

that decision.

8 Contrary to the finding of the court below, see Pet. App. at

19-22, Brusca and Luetkemeyer also stand for the proposition that

rational basis scrutiny applies in this context. Compare Strout,

supra, 178 F.3d at 67 (“Because plaintiffs’ attempt to use the

establishment clause as a sword fails, and because the Maine

statute does not, for the reasons stated by my colleagues, violate

the free exercise clause, no fundamental right is implicated here

for equal protection purposes. Thus, the proper level of scrutiny

under the equal protection clause is the most deferential—rational

basis review.”) (Campbell, J., concurring). This point is particu-

larly well-taken here in light of the lower court’s discussion of

standing, and its conclusion that petitioners themselves have not

been treated differently on the basis of their religion. Pet. App.

at 9.

16

Petitioners contend that resolution of the Establishment

Clause question presented was necessary to the lower

court’s Equal Protection Clause decision because—as that

court found—the actual legislative purpose behind the

“1981 exclusion” of sectarian private schools from the

Maine voucher program was “avoiding an establishment

clause violation.” Pet. at 11 & n.11 (citing Pet. App. at

24). But that contention is without merit.

As a general rule, a state statute will survive rational

basis scrutiny under the Equal Protection Clause if there

is any “conceivable” legislative purpose that supports the

challenged classification, and it is “entirely irrelevant for

constitutional purposes whether the conceived reason for

the challenged distinction actually motivated the legisla-

ture.” FCC v. Beach Communications, Inc., 508 U.S.

307, 313-15 (1993) (quoting Lehnhausen vy. Lake Shore

Auto Parts, 410 U.S. 356, 364 (1973)). An exception

to that rule exists when the legislature has “ ‘specifically

declared [its] purpose’” and that declared purpose is

found to have been irrational, see Nordlinger v. Hahn,

505 U.S. 1, 16 n.7 (1992) (quoting Allied Stores of

Ohio, Inc. v. Bowers, 358 U.S. 522, 530 (1959)), but

that exception does not save petitioners here. Petitioners

do not—and cannot—claim that the 198] Maine Legisla-

ture acted “irrationally” when it excluded sectarian pri-

vate schools from the voucher program for the purpose of

avoiding an Establishment Clause violation. As the court

below found:

The Legislature enacted the exclusion in 1981 in

direct response to developments in Establishment

Clause jurisprudence during the 1970’s. Placing

those developments in a historical context demon-

strates that the Legislature had little choice but to

adopt the exclusion if it chose to continue its tuition

program. [Pet. App. at 24.]

A7

Petitioners’ Equal Protection Clause claim, simply put,

is that the exclusion of sectarian private schools from

Maine’s voucher program no longer has a rational basis

today, in light of a post-1981 line of Establishment Clause

decisions by this Court culminating in Agostini v. Felton,

521 U.S. 203 (1997). See Pet. at 13; see also Pet. App.

at 28 (“The parents urge us to conclude . . . that recent

changes in the Supreme Court’s analysis of the Establish-

ment Clause have resulted in the elimination of the nec-

essity for the religious exclusion.”). In this context, the

only actual legislative purposes that conceivably could be

relevant to the Equal Protection Clause inquiry are the

purposes of the current Maine Legislature in maintaining

the exclusion of sectarian private schools in the face of

these post-1981 jurisprudential developments. But so far

as the record shows, the current Maine Legislature has

made no declaration of its actual purposes in that regard.

It is possible, of course, to speculate as to what those

actual purposes might be---as we do in the margin.® But

® One possibility is that the Maine Legislature’s attitude regard-

ing the separation of church and state has changed since 1981, to

the point where the Legislature does not wish, as a policy matter,

to include sectarian private schools in the voucher program, even

assuming arguendo that to do so no longer would violate the Estab-

lishment Clause. Cf. Brusca, 382 F. Supp. at 277; Leutkemeyer, 364

F. Supp. at 383. A second possibility is that the Maine Legislature

has analyzed this Court’s recent Establishment Clause cases and is

of the view that those cases do not indicate that sectarian private

schools could be included in the program consistent with the Es-

tablishment Clause. And, a third possibility is that the Maine

Legislature has analyzed the recent cases and considers the Estab-

lishment Clause issue as a close one, but chooses not to have the

Maine voucher program be the “test case” on that issue.

Petitioners assert that “[i]n the absence of any need to avoid a

violation of the establishment clause, Maine lacks any legitimate

basis for interfering with families’ ability to choose a religious

education for their own children.” Pet. at 22. Petitioners once

again miss the point. Maine is not in any sense “interfering with

18

in the absence of record evidence on that point, the only

question that genuinely is relevant to the disposition of

petitioners’ Equal Protection Clause claim is whether

there is any “conceivable” rational justification for Maine’s

continued exclusion of sectarian private schools from its

voucher program. Brusca and Leutkemeyer definitively

answer that question “yes.” That being so, the court

below should summarily have rejected petitioners’ Equal

Protection Clause claim, without reaching out to decide

whether the inclusion of sectarian private schools in the

voucher program would run afoul of the Establishment

Clause.”

* * * x

The question of whether and under what circumstances

public funds may be used to pay for pupils to attend

sectarian private schools without violating the Establish-

ment Clause is an important one—too important, we

submit, to be addressed by this Court in the muddled,

hypothetical posture in which it is presented here. There

are, as petitioners point out, several pending cases chal-

families’ ability to choose a religious education for their own chil-

dren.” The question is whether—apart from the “need to avoid 4

violation of the establishment clause”—the State has “any legiti-

mate basis for” refusing to pay for such a religious education. As

we demonstrate above and in text, it most assuredly does.

10 Although the foregoing analysis leads us to the same conclu-

sion as Judge Campbell in Strout v. Albanese—i.e., there is “no

need whatever” to decide the Establishment Clause question pre-

sented, 178 F.3d at 68—we feel obliged in the interest of complete-

ness to note that even Judge Campbell missed the point to a degree.

Judge Campbell “s[aw] the Maine Legislature, in 1981 and to this

moment,” as being motivated by a wholly rational fear that the

inclusion of sectarian private schools in the voucher program would

or might violate the Establishment Clause. Supra p. 5 (emphasis

added). It is, of course, possible that that is the current Maine

Legislature’s actual motive, but there are other possibilities as well,

and the record is silent on the point. See supra p. 17 & n.9.

atta eiieiiiiiiiiiiiel

19

lenging on Establishment Clause grounds state programs

that do provide public funds to pay for sectarian school

education, and that present the Establishment Clause

question in direct and pristine form. See Pet. at 22-24.U

One need not be omniscient to recognize that one or more

of these pending cases is likely to provide this Court with

a far more appropriate vehicle for clarifying the consti-

tutional parameters of the unfolding debate over voucher

programs.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

ROBERT H. CHANIN * DONALD F. FONTAINE

JOHN M. WEST FONTAINE & BEAL, P.A. ~

ANDREW D. RoTH 482 Congress Street

BREDHOFF & KAISER, P.L.L.C. P.O. Box 7590

1000 Connecticut Ave., N.W. Portland, Maine 04112 .

Suite 1300 (207) 879-1879

Washington, D.C. 20036 JEFFREY THALER

(202) 833-9340 BERNSTEIN, SHUR, SAWYER

& NELSON

100 Middle Street

Portland, Maine 04101

* Counsel of Record (207) 774-1200

11 Contemporaneously with the filing of the Petition, two addi-

tional lawsuits were filed in federal district court challenging—

strictly on Establishment Clause grounds—Ohio’s “reauthoriz[a-

tion)” (Pet. at 16 n.15) of its voucher program for the City of

Cleveland. See Simmons-Harris v. Zelman, No. 99-1740 (July 20,

1999 N.D. Ohio); Gatton v. Zelman, No. 99-1818 (July 29, 1999

N.D. Ohio). These two cases were consolidated, and on August 24,

1999, the federal district court preliminarily enjoined implementa-

tion of the new program. On August 27, 1999, the district court

issued a partial stay of the preliminary injunction, and expedited

the hearing on a permanent injunction.