Opposition Brief — Jackson v. Benson

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¢ SEP 30 4998

No. 98-376

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

WARNER JACKSON, ef al.,

Petitioners,

JOHN T. BENSON, e7 al.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Wisconsin

BRIEF IN OPPOSITION

STEWART G. SIMONSON

LEGAL COUNSEL TO THE

GOVERNOR

Room 115 East

State Capitol Building

Madison, WI 53702

(608) 266-1212

JAY P. LEFKOWITZ

Counsel of Record

THEODORE W. ULLYOT

KIRKLAND & ELLIS

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5000

Counsel for Respondents

John T. Benson, et al.

Septeenber 39, 1998

QUESTION PRESENTED

Whether the Milwaukee Parental Choice Program—which,

in conjunction with existing programs within the Milwaukee

Public School (“MPS”) system, affords low-income MPS

families the opportunity to educate their children at public,

private non-sectarian, or private sectarian schools—violates the

Establishment Clause?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........c.eccceeeeeees i

EE EEUUIINSEE 6 cbs escdas bsp disecsenceves il

py. Be Sas. 8 16) >. Sen erg ill

INTRODUCTORY STATEMENT ..........-.---+-+- l

COUNTERSTATEMENT OF THE CASE ............. 3

1. The Milwaukee Parental Choice Program: As

Originally Enacted, and as Subsequently

TS ep rene Ea E ree ee, eee cee ee 4

A. The original Choice Plan ............... 4

B. The expanded Choice Plan.............. 5

Il. Prior Proceedings and Disposition .............. 7

REASONS FOR DENYING THE WRIT ............-. 13

I. The Supreme Court of Wisconsin Correctly

Ruled That, Under This Court’s Precedents, the

Expanded Choice Plan is a Neutral and Indirect

State Funding Program That Does Not Violate

the Establishment Clause ...................- 13

Il. This Case Is a Poor Vehicle for Resolving

Whether Nyquist Remains “Good Law” ......... 22

RE CL cS arcs wecoces secs e cues esew hes 27

ill

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

peg SO 4h. oy error este reer

Aguilar v. Felton,

jh? | .. See peewee ere a

Bagley v. Maine Dep't of Educ.,

No. CV-97-484 (Me. Superior Ct. Apr. 20, 1998),

appeal pending, No. CUM-98-281 (Me.)........

Board of Educ. v. Allen,

Fe ULE) os vee wet RecN eee

Board of Educ. v. Mergens,

ee. Rye Nl. . pe ener risers yy pte ge

Bowen v. Kendrick,

467.5 See) 6 eS.

Capitol Square Review & Advisory Bd. v. Pinette,

SS Rhee 2 oes 0s eRe RR Ow Racer

Chittenden Town Sch. Dist. v. Vt. Dep't of Educ.,

No. $0478-96 RcC (Vt. Superior Ct.,

Rutland Cty., June 27, 1997),

appeal pending, No. 97-275 (Vt.) .............

Committee for Public Education

& Religious Liberty v. Nyquist,

GIFT PIP ik ie Keke abd

<iss on

TABLE OF AUTHORITIES

(continued)

Davis v. Grover, ‘

166 Wis. 2d 501, 480 N.W.2d 460 (1992) ..... 3-4, 7, 20

Everson v. Board of Educ.,

330 US. 1 (1987) ... noe cece cnn cence 1, 9-10, 14-15

Hunt v. McNair,

413 US. 734 (1973)... 0... e eee eee eer e ences 9-10

Kotterman v. Killian,

No. CV-97-0412 SA (Ariz., filed Sept. 29, 1997) ..... 26

Kukor v. Grover,

148 Wis.2d 469, 436 N.W.2d 568 (1989) ......---+-- 3

Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,

508 U.S. 384 (1993) 2.0... ce cece eee terete ees 14

Lemon vy. Kurtzman,

403 U.S. 602 (1971)... 62. cece cece cece neces 9,15

Meek v. Pittenger,

421 U.S. 349 (1975) «coc ccc wee een teeeeens 15

Mueller v. Allen,

463 U.S. 388 (1983) . 0. ce ee eee ee eee passim

Roemer v. Md Board of Public Works,

426 U.S. 736 (1976) 00... c cece cece eee cece 9,15

Rosenberger v. Rector and Visitors of Univ. of Virginia,

515 U.S. 819 (1995) ..... aaah cok bag Sais oe Pa passim

TABLE OF AUTHORITIES

(continued)

Simmons-Harris v. Goff,

No. 96APE08-982, 1997 WL 217583

(Ohio Ct. App., May 1, 1997),

appeal pending, No. 97-1117 (Ohio) ............... 26

Tilton v. Richardson,

UD Sios UURTEL sh ck 00 bbs svi oes CLE 10

Widmar v. Vincent,

Pe Si PRED Sie oa huh a vce bk h aa aee enone 14

Witters v. Washington Dep't of Servs. for the Blind,

Se are ee oko 6 8s ewe ck oe ban beeesk passim

Zobrest v. Catalina Foothills Sch. Dist.,

th SES. SSE nee epee er ae eS passim

Zorach y. Clauson,

Be Whee APE OE) ba sn vic a Wah coe WHEE ek as eos 21

Statutes

A) ee A OINGT.; SUS FS EARS passim

U. CONST,, GRIERE AAV ois er aa es 1, 7, 12

OL A Fe ee a ak cae ees ee 1, 13, 26

WEE RAT ARE BAG SN oe ee 8-9

WER, es SREB S oo Res be Vi HOS Pe ee passim

Wit: Bt 6 21S se Nee 6

1995 Wis. Act 27, £6 4002-09 .....55.. 45230 sces 4-6

INTRODUCTORY STATEMENT

Respondents John T. Benson, ef al. (“the State of

Wisconsin” or “the State”) hereby oppose the Petition for Writ

of Certiorari. The issue presented in this case is whether the

Milwaukee Parental Choice Program—a “school choice”

program which, in conjunction with existing programs within

the Milwaukee Public School (“MPS”) system, affords low-

income MPS families the opportunity to educate their children

at public, private non-sectarian, or private sectarian

schools—violates the Establishment Clause of the First

Amendment (as incorporated by the Fourteenth Amendment).

That issue is of profound legal and practical importance, both

to Wisconsin and to the Nation. Nonetheless, two factors

counsel in favor of awaiting a later opportunity to address the

constitutionality of school choice programs.

First, contrary to Petitioners’ assertion, this important

federal question has not been decided by the Supreme Court of

Wisconsin “‘in a way that conflicts with relevant decisions of

this Court.’” Pet. at 9 (quoting Sup. Ct. R. 10(c)). To the

contrary, a ruling invalidating the Milwaukee Parental Choice

Program (“the expanded Choice Plan”) on Establishment

Clause grounds would have been in conflict with a half-

century’s worth of this Court’s precedents—stretching from

Everson v. Board of Educ., 330 U.S. 1 (1947), through more

recent decisions such as Mueller v. Allen, 463 U.S. 388 (1983),

Witters v. Washington Dep't of Servs. for the Blind, 474 U.S.

481 (1986), Zobrest v. Catalina Foothills Sch. Dist., 509 US. 1

(1993), Rosenberger v. Rector and Visitors of Univ. of

Virginia, 515 U.S. 819 (1995), and Agostini v. Felton, 117

S. Ct. 1997 (1997). The Wisconsin court conducted a thorough

review of this Court’s Establishment Clause jurisprudence, and,

based on that review, correctly ruled that any state funding that

flows to sectarian schools under the expanded Choice Plan

does so only on a neutral and indirect basis, and therefore is

constitutionally permissible under the Establishment Clause.

Second, the State agrees with Petitioners that this Court

would provide a valuable service by clarifying whether its 1973

decision in Committee for Public Educ. & Religious Liberty v.

Nyquist, 413 U.S. 756, remains “good law.” This case,

however, presents a poor opportunity for such clarification.

The Wisconsin court did not dispute that Nyquist constitutes

“good law”; it simply determined—and correctly so—that

Nyquist was “not controll{ing]” because the expanded Choice

Pian is distinguishable from the New York tuition

reimbursement program invalidated in Nyquist. For example,

the state court concluded that whereas the Nyquist program

“directed aid exclusively to private schools and their students,”

the expanded Choice P!an, “viewed in its surrounding context,

merely adds religious schools to a range of pre-existing

educational choices available to MPS children.” Pet. App. 19a~

n.9. Because Nyquist is distinguishable in this and other ways,

this case does not present a fitting opportunity for the Court to

declare definitively whether Nyquist remains “good law,”

which is the sort of ruling Petitioners appear to be seeking.

Instead, the case presents only an opportunity to determine

once again the extent to which certain dictum in Nyquist has

relevance in other factual settings. A better vehicle for

accomplishing Petitioners’ goal—i.e., for clarifying, once and

for all, whether Nyquist remains “good law”—would be a case

in which a lower court found the challenged law

indistinguishable from Nyquist, and expressly stated that the

court was constrained to follow Nyquist, notwithstanding its

apparent obsolescence. It is possible that such a ruling will

emerge in the near future: Although there is no current lower

court conflict regarding the constitutionality of school choice

programs, the high courts of Arizona, Maine, Ohio and

Vermont are presently considering similar challenges to school

choice programs.

For these reasons, the State respectfully suggests that

resolution of the critically important question of the

constitutionality of school choice programs should await a

more suitable vehicle, which may emerge as more lower courts

are called upon to resolve that question.

me)

COUNTERSTATEMENT OF THE CASE

Any consideration of the constitutionality of the expanded

Choice Plan must begin with a frank recognition of the serious

problems facing the MPS. It is beyond dispute that the

students and schools in the MPS face the most profound

educational challenges in the State of Wisconsin. Indeed, ina

decision upholding the constitutionality of the original version

of the Choice Plan, the Wisconsin Supreme Court recognized

that “the Milwaukee Public School District has significantly

greater education and poverty problems than any other school

district in the state.” Davis v. Grover, 166 Wis.2d 501, 529,

480 N.W.2d 460, 469 (1992). The court based that assessment

on “[t]he statistical data,” which “clearly illustrates that the

socioeconomic disparities and the educational problems are

greater in the large urban area of Milwaukee than any other

part of Wisconsin.” /d. at 529-30, 480 N.W.2d at 470; see also

Kukor v. Grover, 148 Wis.2d 469, 482-83, 436 N.W.2d 568,

573-74 (1989).

By any measure of educational performance, MPS has

performed dismally. For example, in 1989, when the original

Choice Plan was under consideration, the dropout rate for high-

school students reached 14.4 percent. See Davis, 166 Wis.2d

at 529, 480 N.W.2d at 469. At the same time, schools in the

rest of the state experienced a much lower dropout rate of 3.11

percent. See id. In 1989, less than 45 percent of MPS students

graduated from high school within six years—down from 57

percent just five years earlier. See id. at 531, 480 N.W.2d at

470. And of those who did graduate within six years in 1989,

more than one-third did so with a “D” average. See id.

The Wisconsin Supreme Court in Davis v. Gre ver found that

these realities “dramatically show the need for legislative

attention.” Jd. at 529, 480 N.W.2d at 469.

lL. The Milwaukee Parental Choice Program: As

Originally Enacted, and as Subsequently Expanded.

That legislative attention led to the enactment of the original

Milwaukee Parental Choice Program in 1989 (“the original

Choice Plan”), and continued with the expanded Choice Plan

now under challenge. 1995 Wis. Act 27, §§ 4002-09; Wis.

Stat. § 119.23. As described below, all of these efforts at

educational reform by the Wisconsin legislature have been

directed, first and foremost, at solving an educational crisis

affecting students in the State’s largest public school

system—not at promoting private sectarian education.

A. The original Choice Plan.

Over the past 25 years, a variety of programs—including

desegregation, special school financing, and the introduction of

specialized magnet schools—have been initiated to address

MPS’ unique problems. None of these programs averted the

worsening situation. As the Wisconsin Supreme Court

acknowledged in Davis, the original Choice Plan was a direct

response to the continuing poor performance of Milwaukee

students despite decades of state programming targeted at

reforming MPS: “The program [was] an attempt to identify

factors which could improve the quality of education.” Davis,

166 Wis. 2d at 512 n.2, 480 N.W.2d at 462 n.2.

The Wisconsin legislature, long familiar with choice-

inspired solutions to educational problems, responded to the

troubles of the MPS system in 1989 by enacting the original

Choice Plan, Wis. Stat. § 119.23 (West 1991 & Supp. 1994).

The original Plan provided a limited number of MPS students'

from low-income families’ the opportunity to attend certain

' The original Plan was limited in scope, affording these expanded

educational opportunities to only 1.5 percent of MPS students.

* Participation in the Plan was, and remains, limited io families whose

(continued...)

ee ee ee ee eS ee ee

—

private schools, which had elected to participate in the Plan.

The original Plan was limited to “nonsectarian” private

schools. See Wis. Stat. § 119.23(2)(a). Under the original

Choice Plan, therefore, financially-strapped families in

Milwaukee could choose among several options for the

education of their children, including neighborhood public

schools, public magnet schools, and non-sectarian private

schools. The only educational option denied these parents was

sectarian private schools.

B. The expanded Choice Plan.

The limited nature of the original Choice Plan hampered its

ability to solve the ills of the MPS. The Governor of

Wisconsin, Hon. Tommy G. Thompson, responded to these

shortcomings by proposing an expansion of the original Plan

to ensure that low-income families would have the same full

range of educational options that was available to other

families. Specifically, the Governor proposed amending the

original Plan to include sectarian schools and thereby eliminate

any discrimination among private schools. Id.

After extensive public hearings and floor debate, the

legislature enacted the expanded Plan. See 1995 Wis. Act 27,

§§ 4002-09. The amendments effected a number of changes to

the original Plan, all tailored to ensure the efficacy and

neutrality of the program. Some of the amendments addressed

aspects of the original Plan other than its exclusion of sectarian

schools. For example, § 4003 of the amendments expanded the

number of Milwaukee area children eligible to participate in

the Plan—from 1.5 percent of MPS students in the original

Plan, to 15 percent under the expanded Plan. Other

amendments, meanwhile, related to the opening of the Plan to

sectarian school participation.

> (...continued)

income does not exceed 175 percent of the poverty level. Wis. Stat.

§ 119.23(2a(1).

First, the legislature struck the word “non-sectarian” from

the statute, thereby expanding the original Plan to encompass

both private non-sectarian and private sectarian schools located

in Milwaukee. See id. at § 4002; Wis. Stat. § 119.23(2)(a). By

virtue of this expansion, the expanded Plan rounds out the

battery of educational options available to parents of

Milwaukee students.

Second, to ensure that no private schools—sectarian or

nonsectarian—treceive any monies not directly related to the

cost of education, the legislature also changed the basis for

determining payment to the schools. Under the original Plan,

schools received (for each student attending pursuant to the

Plan) an amount equal to the total amount to which MPS is

entitled under Wis. Stat. § 121.08, divided by the district’s

membership. Under the expanded Plan, by contrast, payments

are noW limited to the lesser of the MPS amount or an amount

equal to the pnvate school’s operating costs per pupil, as

determined by the Department of Public Instruction. See 1995

Wis. Act 27, § 4005; Wis. Stat. § 119.23(4).

Third, the expanded Plan ensures that no participating

student is forced to participate in any religious activity, by

providing an explicit opt-out right. See id. at § 4008e; Wis.

Stat. § 119.23(7)(c).

Finally, the expanded Plan also includes an additional

safeguard—a further guarantee that no public funds flow

directly to private schools. Accordingly, under the expanded

Plan, tuition checks are made payable by the State

Superintendent directly to the parent or guardian. See id. 1995

Wis. Act 27, § 4006m; Wis. Stat. § 119.23(4). The Department

of Public Instruction mails the checks to the private school

designated by the parent, but only as a result of the parent first

having selected that school from the array of available choices.

And, even after the check arrives at the school, the school

receives no state funding until the parent actually endorses the

check. /d.

Il. Prior Proceedings and Disposition.

Shortly after the original Choice Plan was enacted in 1989,

opponents of school choice programs— including several of the

Petitioners who are now before this Court—filed suit to enjoin

the Plan on various state constitutional grounds. The Supreme

Court of Wisconsin ultimately rejected their challenge to the

original Plan. Davis v. Grover, supra.

When the legislature enacted the 1995 Amendments, school

choice opponents once again promptly sought to enjoin

implementation of the expanded Choice Plan. The present

litigation thus began on August 1, 1995, when two groups of

plaintiffs—Petitioners Warner Jackson, ef al. (“ACLU”), and

Petitioners Milwaukee Teachers Educational Association, e/

al.—filed complaints in the Circuit Court of Dane County,

Wisconsin, challenging the expanded Plan on a host of

constitutional grounds.’ To the various state-constitution-

based, non-religion-clause claims that Petitioners had advanced

in their attempt to defeat the original Plan, Petitioners now

added (1) a claim under the Establishment Clause of the First

Amendment to the federal constitution, and (2) a similar claim

based on Art. I, § 18 of the Wisconsin Constitution,’

contending that the expanded Choice Plan impermissibly

conferred a “benefit” on religious institutions.

* Petitioners NAACP, ef ai. later filed a separate action challenging the

expanded Plan, adding a claim under the Equal Protection Clause of the

Fourteenth Amendment. The state supreme court dismissed the equal

protection claim, see Pet. App. 56a, and Petitioners have not sought review

of that aspect of the decision below. See Pet. at 6 n.2.

* Art. 1, § 18 of the Wisconsin Constitution provides, in relevant part, that

“fno person shall] be compelled to attend, erect or support any place of

worship, or to maintain any ministry, without consent, nor shall . . . any

preference be given by law to any religious establishments or modes of

worship; nor shall any money be drawn from the treasury for the benefit of

religious societies, or religious or theological seminaries.”

After receiving Petitioners’ complaints, the State—acting on

relation of Governor Thompson—commenced an original

action in the Supreme Court of Wisconsin, seeking a

declaration that the expanded Choice Plan was constitutional.

The state supreme court accepted original jurisdiction, and on

March 29, 1996, announced that it had deadlocked 3-3 on the

constitutional issues (with the seventh Justice not

participating). See Pet. App. 189a-19la. Having divided

equally, the state supreme court dismissed the petition,

effectively remanding the case to the Circuit Court of Dane

County for further proceedings. /d. at 19 1a.

In January 1997, the circuit court granted summary

judgment for Petitioners. See Pet. App. 138a-188a. The court

concluded, inter alia, that “by permitting religious schools to

participate in the program,” the expanded Plan violated Art. I,

§ 18 of the Wisconsin Constitution. /d. at 169a. Having found

the expanded Plan invalid on state grounds, the circuit court

did not reach the Establishment Clause issue.

The court of appeals affirmed by a 2-1 vote. See Pet. App.

59a-137a. Like the circuit court, the court of appeals

“conclude[d] that the amended program violates the religious

benefit clause of Article I, section 18 of the Wisconsin

Constitution,” id. at 61a, and therefore found it “unnecessary

to address” Petitioners’ Establishment Clause challenge, id. at

87a. Although it did not formally rule on the Establishment

Clause issue, the court of appeals “consult[ed] United States

Supreme Court [Establishment Clause] cases applying the

‘primary effect’ test” in conducting its Art. I. § 18 analysis. /d.

at 80a. Relying exclusively on Nyquist, the court found that the

“primary effect” test did “not undermine” its conclusion that

the expanded plan was invalid under Art. I, § 18. /d.

The Supreme Court of Wisconsin granted Petitions for

Review, and, by a 4-2 margin,’ reversed the court of appeals’

ruling and rejected a// of Petitioners’ various challenges to the

expanded Plan.

The state supreme court rejected Petitioners’ Establishment

Clause claim following a thorough review of this Court's

jurisprudence. See Pet. App. 1 1a-31a. The court analyzed the

expanded Choice Plan’s constitutionality under the Lemon

framework, explaining that “[w]hile the continued authority of

the test established in Lemon v. Kurtzman, 403 U.S. 602

(1971), is uncertain, we have no choice but to apply it in this

case.” Pet. App. 14a n.5. Disposing of the “secular purpose”

and “excessive entanglement” inquiries in fairly short order,

see id at 14a-15a, 29a-31a, the court devoted the bulk of its

analysis to ihe issue on which the parties had focused, namely

whether the expanded Choice Plan would “have the primary

effect of advancing religion,” see id. at 1 5a-28a.

To answer that question, the Wisconsin court canvassed 50

years of this Court’s Establishment Clause rulings. From that

body of law, the court “distill[ed] . . . an underlying theory

based on neutrality and indirection: state programs that are

wholly neutral in offering educational assistance directly to

citizens in a class defined without reference to religion do not

have the primary effect of advancing religion.” Pet. App. 16a-

17a (footnotes omitted). With respect to neutrality, the

Wisconsin court noted that ever since Everson v. Board of

Educ., 330 U:S. 1 (1947), “[t}he Supreme Court has historically

looked to whether a program is neutral toward religion in

defining its beneficiaries.” Pet. App. 16a n.6 (citing Everson;

Bowen v. Kendrick. 487 U.S. 589 (1988); Roemer v. Md. Bd. of

Public Works, 426 U.S. 736 (1976); Hunt v. McNair, 413 U.S.

> The two dissenting Justices would have invalidated the expanded Plan

under Art. I, § 18 of the state constitution. They did not address the

Establishment Clause issue. See Pet. App. 58a.

734 (1973): Tilton v. Richardson, 403 U.S. 672 (1971); Board

of Educ. y. Allen, 392 U.S. 236 (1968)). And with regard to the

principle of indirection, the Wisconsin court observed that this

Court has traditionally “also focused on whether public aid that

flows to religious institutions does so only as a result of

‘genuinely independent and private choices of the aid

recipients.” Pet. App. 1l6a-17a n.7 (citing Witters v.

Washington Dept. of Servs. for the Blind, 474 U.S. 481 (1986);

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S.

819 (1995); Mueller v. Allen, 463 U.S. 388 (1983); Board of

Educ. v. Allen; Everson).

Based on its review of the applicable precedents, the state

court concluded that:

The Supreme Court, in cases culminating in Agostini, has

established the general principle that state educational

assistance programs do not have the primary effect of

advancing religion if those programs provide public aid

to both sectarian and nonsectarian institutions (1) on the

basis of neutral, secular criteria that neither favor nor

disfavor religion; and (2) only as a result of numerous

private choices of the individual parents of school-age

children.

Id. at 25a.

The Wisconsin court then explained in detail why the

expanded Choice Plan “is precisely such a program.” See id.

at 25a-28a. First, the court observed that the Plan “is in no

way ‘skewed toward religion.’” /d. at 26a (quoting Witters).

Instead, it simply “provides a neutral benefit to beneficiaries

selected on religious-neutral criteria,” and therefore “neither

leads to ‘religious indoctrination,’ . . . nor ‘creates a financial

incentive for students to undertake sectarian education.”” /d.

at 27a (quoting Agostini, Witters, and Zobrest). Second, the

court concluded that because state funds anrive at a private

school only as a result of a parent’s first hawing chosen that

school—and because, even then, the funds take the form of a

check made out to the parent (to “be cashed only for the cost of

the student’s tuition”}—“[a]ny aid provided under the

[expanded Choice Plan] that ultimately flows to sectarian

private schools . . . does so ‘only as a result of genuinely

independent and private choices of aid recipients.’” /d. at 27a

(quoting Witters).

Significantly, the court expressly considered, and rejected,

Petitioners’ contention that Nyquist required the invalidation of

the expanded Choice Plan.

As an initial matter, the court noted that “Nyquist

specifically reserved the issue whether an educational

assistance program that was both neutral and indirect would

survive an Establishment Clause challenge.” Pet. App. 19a

(emphasis added). As the Wisconsin court noted, this Court in

Nyquist declined to decide whether “‘a case involving some

form of public assistance (e.g., scholarships) made available

generally without regard to the sectarian-nonsectarian, or

public-nonpublic nature of the institution benefited’” would

come out differently than Nyquist. Id. (quoting Nyquist, 413

U.S. at 782 n.38).

Next, drawing on its familiarity with the extensive array of

educational options that the Wisconsin legislature has made

available to MPS students, the court also emphasized what it

termed “significant distinctions” between the tuition

reimbursement program at issue in Nyquist and the expanded

Choice Plan. /d. at 19a n.9. The court explained that:

In Nyquist, each of the facets of the challenged program

directed aid exclusively to private schools and their

students. The [expanded Choice Plan], by contrast,

provides a neutral benefit to qualifying parents of school-

age children in Milwaukee Public Schools. Unlike the

program in Nyquist, the only financially-qualified

Milwaukee students excluded from participation in the

————————————

[expanded Choice Plan] are those in the fourth grade or

higher who are already attending private schools. The

[expanded Choice Plan], viewed in its surrounding

context, merely adds religious schools to a range of pre-

existing educational choices available to MPS children.

- This seminal fact takes the [expanded Choice Plan] out of

the Nyquist construct and places it within the framework

of neutral educational assistance programs.

ld. See also id. at 26a (“The [expanded Choice Plan], in

conjunction with existing state educational programs, gives

participating parents the choice to send their children to a

neighborhood public school, a different public school within

the district, a specialized public school, a private nonsectarian

school, or a private sectarian school. As a result, the amended

program is in no way ‘skewed toward religion.’”) (footnote and

citation omitted); id. at 26a n.16.

Having found the expanded Choice Plan permissible under

the Establishment Clause, the court proceeded to reject the

remainder of Petitioners’ challenges to the Plan—challenges

based on various state constitutional provisions, as well as the

Equal Protection Clause of the Fourteenth Amendment. /d. at

3 1la-57a.

The Wisconsin Supreme Court’s ruling not only restored the

full array of educational options that the legislature had

envisioned as the solution to the problems of MPS, but also

restored a measure of predictability to MPS students for the

first time in nearly three years. On August 25, 1995, shortly

after accepting original jurisdiction, the supreme court had

enjoined implementation of the expanded Choice Plan in its

entirety. Although later narrowed by the circuit court to enjoin

only those aspects of the Plan relating to sectarian school

participation, that injunction had remained in place for nearly

three full academic years. As a consequence, the intended

beneficiaries of the expanded Choice Plan—namely, MPS

students from low-income families—had been forced to

contend both with a reduced menu of educational choices, and

with substantial uncertainty.° The decision below removed that

cloud. Having “conclude[d] that the amended program is

constitutional in its entirety,” the state supreme court

“order[ed] the circuit court to dissolve the injunction for all

portions of the [expanded Choice Plan].” Pet. App. 56a.

REASONS FOR DENYING THE WRIT

I. The Supreme Court of Wisconsin Correctly Ruled

That, Under This Court’s Precedents, the Expanded

Choice Plan is a Neutral and Indirect State Funding

Program That Does Not Violate the Establishment

Clause.

Contrary to Petitioners’ claim, the court below did not

decide the Establishment Clause issue “‘in a way that conflicts

with relevant decisions of this Court.”” Pet. at 9 (quoting Sup.

Ct. Rule 10(c)). As the Wisconsin court recognized, this

Court’s Establishment Clause jurisprudence has long stressed

two core principles: (1) the importance of neutrality, and

(2) the need to avoid direct government funding of religion. It

is now firmly established that government programs that

provide benefits to sectarian and nonsectarian institutions alike,

and do so only indirectly, do not have the “primary effect” of

advancing or endorsing religion and do not violate the

Establishment Clause. The expanded Choice Plan is such a

“thousands of children who were eligible for full tuition under the program

already had enrolled in or begun attending their new private schools.” Pet.

App. 56a-57a. Faced with having to remove their children from their chosen

schools, many parents were forced to seek interim private assistance to keep

their children in those schools. /d. at 57a.

program, and the Wisconsin court’s rejection of Petitioners’

Establishment Clause claim therefore was correct.’

This Court’s religion cases uniformly have stressed the

importance of government neutrality toward religion. The

neutrality principle has played a role in almost every effort to

interpret the Establishment Clause, and to reconcile it with the

Free Exercise Clause. See, e.g., Everson v. Board of Educ.,

330 U.S. 1, 18 (1947); Board of Educ. v. Allen, 392 U.S. 236,

243 (1968).

More recently, this Court has emphasized that a policy of

“neutrality” under the Establishment Clause does not

necessitate or justify the exclusion of sectarian institutions

from benefits, programs or facilities that the government makes

available to non-sectarian organizations. The Court has held,

for example, that a public school that opens its facilities to

secular institutions cannot simultaneously deny access to

sectarian organizations. See Lamb’s Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Board

of Educ. v. Mergens, 496 U.S. 226 (1990); Widmar v. Vincent,

454 U.S. 263 (1981); see also Capitol Square Review &

Advisory Bd. v. Pinette, 513 U.S. 1106 (1995). Excluding

sectarian groups in these circumstances “demonstrate[s] not

neutrality but hostility toward religion.” Mergens, 496 U.S. at

248.

In addition to neutrality, this Court repeatedly has

emphasized the absence of direct government aid (or direct

government control over the destination of funds) in upholding

’ The State recognizes that the Brief in Opposition is normally not the

place for extensive argument on the merits. However, given that

Petitioners’ request for certiorari is bottomed on the allegation that the

Wisconsin court’s decision “conflicts with relevant decisions of this Court,”

Pet. at 9 (quoting S. Ct. R. 10(c)), the Stite believes that a detailed review

of this Court’s precedents (and the ways in which the decision below is

entirely consistent with those precedents) is called for by way of rebuttal.

programs against Establishment Clause challenges. In its first

decision applying the Establishment Clause to the States, the

Court upheld a program that reimbursed parents for the cost of

transporting their children to and from sectarian schools. See

Everson, 330 U.S. at 17-18. And when the Court next

considered government aid to sectarian schools, it upheld New

York’s policy of loaning textbooks to sectarian school students

free of charge. See Board of Educ. v. Allen, 392 U.S. at 243-

44. In approving this textbook loan program, the Court

specifically noted that “no funds or books are furnished to

parochial schools, and the financial benefit is to parents and

children, not to schools.” Id. (emphasis added).

Later decisions of the Court have emphasized the indirect

nature of the aid approved in these early cases. In Lemon v.

Kurtzman, 403 U.S. 602, 621 (1971), for example, the Court

observed that in Everson and Board of Educ. v. Allen “the

Court was careful to point out that state aid was provided to the

student and his parents—not to the church-related school.”

Accord Roemer v. Md. Board of Public Works, 426 U.S. 736

(1976); Meek v. Pittenger, 421 U.S. 349, 360-61 (1975)

(upholding textbook loan provision).

But the Court’s longstanding emphasis on neutrality and

indirection as hallmarks of legislative initiatives that do not run

afoul of the Establishment Clause was made most clear in a

recent line of cases beginning with Mueller v. Allen, 463 U.S.

388 (1983). In Mueller, the Court approved a Minnesota

statute that permitted parents to deduct expenses related to their

children’s education— including educational costs at private

sectarian schools. In upholding the statute, the Court

emphasized that “under Minnesota’s arrangement public funds

become available only as a result of numerous, private choices

of individual parents of school-age children.” Jd. at 399. The

Court concluded:

The historic purposes of the clause simply do not

encompass the sort of attenuated financial benefit,

ultimately controlled by the private choices of individual

parents, that eventually flows to parochial schools from

the neutrally available tax benefit at issue in this case.

Id. at 400.

The Court reaffirmed the importance of individual choice

and indirect aid three years later in Witters v. Washington Dept.

of Servs. for the Blind, 474 U.S. 481 (1986). Witters upheld

Washington’s grant of state money to a blind student so that he

could receive theological training at the Inland Empire School

of the Bible. Justice Marshall, writing for a unanimous Court,

stressed that “[a]ny 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.” /d. at 488. See also id. at 490-91 (Powell, J.,

concurring) (emphasizing this point); id. at 493 (O’Connor, J.,

concurring) (same). The Court observed that when individuals,

rather than the government, determine whether (and how

much) money flows to a sectarian organization, the effect is no

more constitutionally troubling than when a government

employee donates his paycheck to his church or synagogue.

See id. at 486-88.

The Court again emphasized the core principle of indirection

in Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

In Zobrest, the Court upheld the government’s provision of an

interpreter for a student in a sectarian school. The Court

characterized the statute at issue as “a neutral government

program dispensing aid not to schools but to individual

handicapped children,” id. at 13, even though, as a formal

matter, the government, not the parents, directly paid for the

cost of the interpreter, see id. at 13-14 & n.11. The dispositive

factor in Zobrest was that the sectarian school would not have

received any benefit but for the parents’ intervening choice.

“[A]ny attenuated financial benefit that parochial schools do

ultimately receive from the [statute] is attributable to ‘the

private choices of individual parents.” /d. at 12 (quoting

Mueller, 463 U.S. at 400).

The Court reaffirmed both the indirection and neutrality

principles in Rosenberger v. Rector and Visitors of Univ. of

Virginia, 515 U.S. 819 (1995). First, the Court noted that “a

significant factor in upholding governmental programs in the

face of Establishment Clause attack is their neutrality towards

religion.” Jd. at 839. Second, all nine Justices reaffirmed that

government funding that reaches sectarian institutions

indirectly, and through a neutral program, does not raise

Establishment Clause concerns. See id. at 838-40; id. at 880-81

(Souter, J., dissenting). The question that divided the Court in

Rosenberger was whether the aid at issue was “direct” or

“indirect” as the Court had used those terms in earlier cases.

Under the University of Virginia’s program, student

publications did not receive funds directly from the University;

instead, the University paid the money to a printer at the

direction of the publication. The majority concluded that this

funding mechanism was sufficiently indirect. See id. at 841-

45. The dissenters disagreed. See id. at 886 (Souter, ba

dissenting). But it was common ground to all nine Justices that

the funding would have been sufficiently indirect if there had

been a “third party standing between the government and the

ultimate religious beneficiary to break the circuit by its

independent discretion to put state money to religious use.” Id.

(Souter, J., dissenting).

Petitioners attempt to make much of the fact that, in her

separate concurrence, Justice O'Connor (who also joine J the

Court’s opinion) stated that Rosenberger did not “trumpet{] the

supremacy of the neutrality principle.” 515 U.S. at 852

(O’Connor, J., concurring). But what Petitioners fail to

mention is that Justice O’Connor in no way suggested that

neutrality was not a central principle in Establishment Clause

analysis, and indeed referred to it as a “bedrock principle|].”

515 U.S. at 847. Moreover, Petitioners conveniently ignore

Justice O’Connor’s ultimate conclusion—that the funding

provided by the University (which was not only neutral but

also indirect) was furnished in a context that precluded any

perception of government endorsement of a group’s religious

message. /d. at 849-51 (O’Connor, J., concurring). The same

is true of the expanded Choice Plan. When a Choice Plan

family, presented with an array of choices, elects to send its

child to a private sectarian school, “‘[n]o reasonable observer

is likely to draw from the facts . . . an inference that the State

itself is endorsing a religious practice or belief.” Jd. at 848

(O’Connor, J., concurring) (quoting Witters, 474 U.S. at 493

(O’Connor, J., concurring)).

This line of cases—Mueller, Witters, Zobrest and

Rosenberger—thus stands for a critical proposition: The

intervening autonomous choices of individuals eliminate the

constitutional difficulties raised by direct government aid to

sectarian schools. Factors that have proven fatal to direct

government aid to schools lose their significance when

government money flows to sectarian schools only as a

consequence of the individuai choice of a third party. For

example, Zobrest approved aid to Salpointe Catholic High

School even though the parties had stipulated that Salpointe

was pervasively sectarian. See 509 U.S. at 4 & n.1; id. at 18-20

(Blackmun, J., dissenting).* Likewise, in Witters, the Court

concluded that, when aid flows to religious organizations only

* Petitioners’ flaunting of the “pervasively sectarian” character of the

sectarian Choice Plan schools, see, e.g., Pet. at i, 4, 22, is therefore wholly

misguided. As noted above, Salpointe Catholic High School was likewise

“pervasively sectarian”—its ‘“‘distinguishing purpose’ was “‘the

inculcation in its students of the faith and morals of the Roman Catholic

Church.’” Zobrest, 509 U.S. at 18 (Blackmun, J., dissenting). And in

Witters, the Inland Empire School of the Bible was, of course, pervasively

sectarian. Yet the fact that state funding reached those schools only on a

neutral and indirect basis—as under the expanded Choice Plan—disposed

of any constitutional objections to that funding.

as a result of private choices, objections based on the lack of

restrictions on the recipient’s use of the funds are “not

apposite.” See 474 U.S. at 489.”

The Court’s decision two Terms ago in Agostini v. Felton,

117 S. Ct. 1997 (1997), reemphasized these themes. There, the

Court overruled Aguilar v. Felton, 473 U.S. 402 (1985),

observing that “Establishment Clause law has ‘significantly

changed’” in recent years, and that in particular “[w]hat has

changed . . . is our understanding of the criteria used to assess

whether aid to religion has an impermissible effect.” /d. at

2017, 2010. In particular, the Court—citing Witters and

Zobrest—noted that it had rejected the notion that “any and all

public aid that directly aids the educational function of

religious schools impermissibly finances religious

indoctrination, evea if the aid reaches such schools as a

consequence of private decisionmaking.” /d. at 2010-12. In

addition, the Court observed that its recent Establishment

Clause decisions focused on whether state aid “creat[es] a

financial incentive to undertake religious indoctrination,” or

whether. instead, “the 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.” /d. at 2014. The Court explained

that, pursuant to this principle of neutrality, it had “sustained

programs that provided aid to all eligible children, regardless

of where they attended school.” /d. (citing, inter alia, Mueller,

Witters, and Zobrest). Informed by these principles, the Court

ruled that the Establishment Clause presented no barrier to

New York City’s Title I program (“a federally funded program

° It is for this reason, among others, that Petitioners are mistaken in their

casual assertion that the decision below conflicts with the precedents of this

Court listed in footnote 11 of the Petition. Although this Court has required

that direct state aid to religious institutions be accompanied by certain

safeguards to ensure that the aid is not spent for religious purposes, the

Court has not required the same where (as here) the aid is indirect.

providing supplemental, remedial instruction to disadvantaged

children on a neutral basis”), which the Court had found invalid

in Aguilar. Id. at 2016.

The Court’s Establishment Clause precedents, culminating

in Agostini, thus confirm that programs that provide public aid

to sectarian institutions (1) on a neutral basis and (2) only as a

result of private decisionmaking do not have the “primary

effect” of advancing religion, and therefore pass constitutional

muster.

As the Wisconsin court correctly concluded, the expanded

Choice Plan is precisely that sort of permissible program.

First, the Plan provides eligible parents with a neutral

benefit—the ability to select the best possible educational

opportunity for their children. Pet. App. 26a; see also Davis v.

Grover, 166 Wis. 2d 501, 532, 480 N.W.2d 460, 471 (1992).

In conjunction with other existing programs, the expanded

Choice Plan gives eligible MPS parents the choice to send their

children to “a neighborhood public school, a different public

school within the district, a specialized public school, a private

nonsectarian school, or a private sectarian school.” Pet. App.

26a & n.16. See also Agostini, 117 S. Ct. at 2013 (“aid is

provided to students at whatever school they choose to

attend”). The Plan thus “creates no financial incentive for

parents to choose a sectarian school.” Zobrest, 509 U.S. at 10.

Parental] eligibility is determined by financial hardship, not

religious affiliation. The eligibility of schools likewise is based

on religion-neutral factors. By adding sectarian private schools

to the battery of options, the recent amendments display the

kind of neutrality the Court repeatedly has endorsed. See, e.g.,

Board of Educ. v. Mergens, 496 U.S. 226, 248 (1990)

(excluding sectarian groups from’ general program

“demonstrate[s] not neutrality but hostility toward religion”);

Capitol Square Review & Advisory Bd. v. Pinette, 513 U.S.

1106 (1995).

Second, while the Plan gives eligible parents a direct benefit,

any benefit that flows to particular sectarian institutions as a

consequence of parental choices is indirect and incidental. As

with the programs at issue in Mueller, Witters and Zobrest, not

one cent flows from the State to a sectarian school under the

Choice Plan except as a result of the necessary and intervening

choices of individual parents. Participating parents and

students are the “third party standing between the government

and the ultimate religious beneficiary,” Rosenberger, 515 U.S.

at 884-86 (Souter, J., dissenting). They, not the State,

determine how much money will flow to which private

schools."

In sum, the 1995 amendments to the Choice Plan simply add

sectarian schools on a neutral basis to the list of educational

options available to financially-strapped parents in Milwaukee.

That action, far from violating the Establishment Clause,

“follows the best of our traditions.” Zorach v. Clauson, 343

U.S. 306, 314 (1952). Because the expanded Choice Plan

bears the hallmarks of neutrality and indirection, the Supreme

Court of Wisconsin did not decide an issue in a way that

conflicts with this Court’s precedents when it ruled that the

expanded Plan does not violate the Establishment Clause.

of the sectarian schools participating in the expanded Choice Plan, see supra

at n.8, Petitioners’ oft-repeated claim that private schools would receive

“millions of dollars” under the Plan, see, e.g., Pet. at i, 3, 5, 22, is beside the

point. This Court’s precedents make clear that sectarian institutions can

receive even “very substantial[]” benefits from the State, as long as those

benefits are provided on a neutral and indirect basis. Mueller, 463 U.S. at

396 n.5. Similarly, although Petitioners point accusatorially to the

possibility that Choice Plan payments to private sectarian schools will

exceed tuition (but not exceed the cost of the education), Petitoners are

unable to articulate a theory as to why that would be constitutionally

significant.

Il. This Case Is a Poor Vehicle for Resolving

Whether Nyquist Remains “Good Law.”

At bottom, Petitioners’ argument for certiorari is that the

decision below cannot be squared with Nyquist. “Seen through

the lens of Nyquist,” they assert, “this is an open-and-shut case

on the merits.” Pet at 15. Petitioners maintain, therefore, that

“it is time for this Court to say clearly whether or not [Nyquist]

still is good law.” Jd. at 16. See also id. at i (presenting

question whether Nyquist “continue|[s] to state the law”).

The question of the degree to which Nyquist remains a

significant precedent is indeed of great academic interest and

practical importance. Some of the Court’s discussion in

Nyquist indeed appears in tension with more recent

Establishment Clause rulings; and, to the extent that Nyquist is

in conflict with those later rulings, the State believes that it is

a precedent that should be viewed as having been limited to its

facts, if not implicitly overruled. Cf Agostini, 117 S. Ct. at

2017 (“Establishment Clause law has ‘significantly changed’”

in recent years); id. at 2010 (“[w]hat has changed . . . is our

understanding of the criteria used to assess whether aid to

religion has an impermissible effect.”). This Court would

certainly provide a valuable service by clarifying whether

Nyquist remains a significant precedent today, given the

regularity with which opponents of school choice invoke

Nyquist (expressly or implicitly) in legislative debates and

lawsuits seeking to enjoin school choice laws. And, of course,

only this Court has the power to declare that Nyquist no longer

constitutes “good law.” See id. at 2017.

But although the State agrees that much would be gained by

this Court’s resolving the question whether Nyquist has indeed

been eclipsed by more recent Establishment Clause rulings, this

case is a poor vehicle for such resolution. This is so because

the Supreme Court of Wisconsin did not dispute that Nyquist

remains “good law”; instead, the state court simply found the

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expanded Choice Plan distinguishable, in relevant respects,

from the New York program at issue in Nyquist.

That finding was correct, as the two programs differ in

numerous and important ways.

First, as the Wisconsin court recognized, “[i]n Nyquist, each

of the facets of the challenged program directed aid exclusively

to private schools and their students.” Pet. App. 19a n.9

(emphasis added). The expanded Choice Plan, by contrast,

“provides a neutral benefit to qualifying parents [of MPS

students],” because, “viewed in its surrounding context,” it

“merely adds religious schools to a range of pre-existing

educational choices available to MPS children.” /d. (emphasis

added). Invoking its familiarity with the range of educational

options available to MPS students, the Court described the

relevant context in which the Choice Plan must be considered:

According to the stipulated facts in this case, the State’s

system of public per-pupil school financing, in which

public funds follow each child, now encompasses a wide

range of school choices—mainly public, but some private

or religious. Numerous programs have amended the

number and type of educational options available to

public school students. Qualifying public school students

may choose from among the Milwaukee public district

schools, magnet schools, charter schools, suburban public

schools, trade schools, schools developed for children

with exceptional needs, and now sectarian or nonsectarian

schools participating in the [expanded Choice Plan].

Id. at 26a n.16.

This distinction is critical, because Nyquist expressly

reserved the question whether “a case involving some form of

public assistance (e.g., scholarships) made available generally

without regard to the sectarian-nonsectarian, or public-

nonpublic nature of the institution benefited” would come out

differently. See 413 U.S. at 782 n.38. As the Wisconsin court

correctly determined, this is just such a case—involving a truly

neutral form of public assistance, and thus presenting a

question not addressed by Nyquist.

Second, and relatedly, the two laws are decidedly different

in their goals. At issue in Nyquist was a multifaceted school

aid program, the purpose of which was unmistakably and

avowedly to assist New York’s private schools. See, e.g., 413

U.S. at 783 (“the effect of the aid is unmistakably to provide

desired financial support for nonpublic, sectarian institutions”)

(emphasis added); cf id. at 756 (“maintenance and repair

grants” to private schools in Nyquist were designed to remedy

a “fiscal crisis in nonpublic education”). (Petitioners are,

therefore, mistaken in their contention that the asserted

justifications for the New York law “are essentially the same

justifications that have been advanced” in support of the

expanded Choice Plan, Pet. at 11.) To judge by this Court’s

repeated references to the goals of the Nyquist law, the fact that

that law was enacted with the express purpose of aiding private

schools (the vast majority of which were sectarian) played a

significant role in the Court’s conclusion that the law violated

the Establishment Clause. By contrast, it is plain from the

context in which the expanded Choice Plan was enacted that

the design of the Plan is not to help private schools through a

“crisis,” but rather to improve the educational opportunities

available to Milwaukee’s poorest and most disadvantaged

students."

Third, the targeted nature of the Choice Plan also

distinguishes it from the statute struck down in Nyquist. The

New York scheme provided benefits to low-income and

middle-class parents of sectarian school children across the

'' Indeed, given that school choice programs use competition to bring

about improvements in schools, it is possible that private schools will suffer,

not prosper, under the expanded Choice Plan (if the public schools respond

more effectively to competition than do the private schools).

state. The Wisconsin Plan, by contrast, provides benefits only

to low-income parents in Wisconsin’s most troubled school

district.

Fourth, the Nyquist Court emphasized that the New York

statute placed no restrictions on private schools. See 413 US.

at 782-83. The Choice Plan, by contrast, requires that

participating schools select students without regard to religious

affiliation and permits choice students to ont out of religious

activities. See supra at 6.

For these and other reasons, the Wisconsin court was correct

to conclude that the expanded Choice Plan is distinguishable

from the tuition reimbursement program invalidated in Nyquist.

Because the facts and context of this case are distinguishable

from those of Nyquist, this case does not present a fitting

opportunity for this Court to declare “whether or not [Nyquist]

still is good law.” Rather, this case merely presents yet another

opportunity (much like the opportunity presented by Mueller,

Witters and Zobrest) for the Court to clarify the degree to

which whether certain dictum and intimations in Nyquist have

application outside the specific facts of that case.

That unremarkable opportunity, however, does not appear to

be what Petitioners are seeking. Rather, as the Petition makes

clear, Petitioners are seeking nothing less than a definitive

ruling from this Court as to whether Nyquist “still is good law”

or instead has be2n overruled. See Pet at 21-22 (asking Court

to “reaffirm Nyquist now” or “overrule it now”). If that is

indeed Petitioners’ goal in seeking this Court’s review, then the

State respectfully suggests that this a far better vehicle for

resolving that question would be a case in which a lower court

(1) finds that the law being challenged, viewed in context, is

indistinguishable from the law at issue in Nyquist, and

(2) declares that although the law appears permissible under

the neutrality-and-indirection case law, the court is constrained

to follow Nyquist and therefore declare the law invalid.

It bears emphasizing that this Court was confronted with this

sort of lower court ruling in Agostini. See Agostini, 117 S. Ct.

at 2006 (describing district court’s order, which stated **[t]here

may be good reason to conclude that Aguilar’s demise is

imminent,” but nonetheless denied Rule 60(b) motion on

merits “because Aguilar’s demise had ‘not yet occurred.””)

(citations omitted). In a case where the lower court’s decision

met that description, the issue of Nyquist’s continuing validity

would be squarely presented to this Court. Equally important,

a ruling by this Court as to the validity of Nyquist would, in

such circumstances, necessarily dictate whether the lower court

decision would be upheld or reversed (which cannot be said in

this case).

As Petitioners have noted, see Pet. at 22 and 21 n.18, the

high courts of Arizona, Maine, Ohio and Vermont are presently

considering similar challenges to those states’ school choice

programs.” It is possible that one of those courts will issue a

ruling along the lines described above—i.e., one that presents

the Nyquist issue in its pristine form. That possibility (coupled

with the current absence of a current lower court conflict on the

constitutionality of school choice, cf S. Ct. R. 10(b)) presents

an additional reason for this Court to deny the Petition and

await a later opportunity to address the constitutionality of

school choice programs."

'? See Kotterman v. Killian, No. CV-97-0412 SA (Ariz. (original action),

filed Sept. 29, 1997); Bagley v. Maine Dep't of Educ., No. CV-97-484 (Me.

Superior Ct. Apr. 20, 1998), appeal pending, No. CUM-98-281 (Me.);

Simmons-Harris v. Goff, No. 96APE08-982, 1997 WL 217583 (Ohio Ct.

App., May 1, 1997), appeal pending, No. 97-1117 (Ohio); and Chittenden

Town Sch. Dist. v. Vt. Dep't of Educ., No. S0478-96 ReC (Vt. Superior Ct.,

Rutland Cty., June 27, 1997), appeal pending, No. 97-275 (Vt.). The much

earlier state cases cited in footnote 12 of the Petition are of little relevance

to the issue at hand, as all four predate Mueller.

'* By the same token, if these other state courts follow the lead of the

(continued...)

In short, the interesting, and important, issue of the

continuing validity of Nyquist is one that is not squarely

presented in this case, given the Wisconsin court’s conclusion

that the Nyquist law is distinguishable from the expanded Plan.

Accordingly, the State respectfully suggests that this Court

would benefit by awaiting a ruling by another lower court that

more cleanly presents the Nyquist issue.'*

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

STEWART G. SIMONSON JAY P. LEFKOWITZ

LEGAL COUNSEL TO THE Counsel of Record

GOVERNOR THEODORE W. ULLYOT

Room 115 East KIRKLAND & ELLIS

State Capitol Building 655 Fifteenth Street, N.W.

Madison, WI 53702 Washington, D.C. 20005

(608) 266-1212 (202) 879-5000

Counsel for Respondents

John T. Benson, et al.

September 30, 1998

'? (continued)

Wisconsin court and reject Nyquist-based Establishment Clause challenges

to the various choice plans, then the need for this Court to “clarify” the

status of Nyquist in this context will be greatly diminished.

‘* In response to Petitioners’ Supplemental Brief in Support of the Petition

for Certiorari, filed on September 23, 1998, the State has no objection to this

Court’s treating the Petition as if it had been filed on September 1, 1998

(rather than the previous day), if this Court deems such treatment necessary

to avoid any jurisdictional concerns. In any event, the State does not view

the Wisconsin court’s September | order (or the Motion for Clarification

that was dismissed by that order) as affecting the finality or reviewability of

the Wisconsin court’s June 10 judgment.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.