Amicus Curiae Brief — Jackson v. Benson

i~

LY | Supreme Court, U.S,

LY FILED

\ 7

ern \ SEP 30 1998

a OFFICE OF IWE CLERK

Supreme Court of the United States

October Term, 1998

WARNER JACKSON, et al.. MILWAUKEE TEACHERS’

EDUCATION ASSOCIATION, et al.

Petitioner,

v.

TOMMY G. THOMPSON, Governor; JOHN T. BENSON,

State Superintendent of Public Instruction, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

WISCONSIN SUPREME COURT

MOTION AND BRIEF OF

NATIONAL SCHOOL BOARDS ASSOCIATION AS

AMICUS CURIAE IN SUPPORT OF THE PETITION

JULIE UNDERWOOD

General Counsel

National School Boards Association

1680 Duke Street

Alexandria, VA 22314

(703) 838-6710

Counsel of Record

No. 98-376

In the

Supreme Court of the United States

October Term, 1998

WARNER JACKSON, et al., MEL’ AUKEE TEACHERS’

EDUCATION ASSOCIATION, et al.,

Petitioners,

-_—

V.

, TOMMY G. THOMPSON, Governor; JOHN T. BENSON,

State Superintendent of Public Instruction, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

WISCONSIN SUPREME COURT

MOTION OF NATIONAL SCHOOL BOARDS

ASSOCIATION FOR LEAVE TO FILE BRIEF AS AMICUS

CURIAE IN SUPPORT OF THE PETITION

The National School Boards Association (NSBA)

respectfully moves this Court to grant it leave to file the attached

brief as amicus curiae in the above captioned case. Petitioners

have consented to NSBA’s participation in this matter. A letter

attesting to their consent has been suumitted to this Court.

Founded in 1940, NSBA is a not-for-profit federation of

state associations of school boards across the United State. and

the school boards of the District of Columbia, Guam, Hawaii, and

the U.S. Virgin Islands. NSBA represents the nation’s 95,000

es

school board members. These board members govern 14,772

local school districts that serve more than 46.5 million public

school students — approximately 90 percent of all elementary and

secondary school students in the nation.

NSBA has a longstanding interest in educational policy

and has been a frequent contributor of amicus briefs in this Court

on these issues — E.g., Plyer v. Doe, 457 U.S. 202 (1982) (equal

protection — undocumented alien students); Rowley v. Board of

Education, 510 U.S. 1202 (1982) (IDEA — educational

methodology); Washington v. Seattle Public Schools, 458 U.S.

457 (1982) (equal protection — voluntary desegregation); Board of

Education of Paris v. Vail, 466 U.S. 377 (1984) (procedural due

process — "property" interest in continued employment); /rving

Independent School Dist. v. Tatro, 469 U.S. 809 (1984) (IDEA -

related services); New Jersey v. T.L.O., 469 U.S. 325 (1984)

(student search and seizure); Smith v. Robinson, 464 U.S. 932

(1983) (IDEA — attorneys’ fees); Oklahoma v. Gay Task Force,

470 U.S. 903 (1985) (teacher free speech — statute forbidding

speech outside school on subject of gay rights); Cleveland Board

of Education v. Loudermill, 470 U.S. 532 (1985) (procedural due

process — teacher’s right to pre-termination hearing); Ansonia

Board of Education v. Philbrook, 479 U.S. 60 (1986) (Title VII of

Civil Rights Act - accommodation of teacher’s religious beliefs),

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)

(student free speech); Bowsher v. Synar, 478 U.S. 714 (1986)

(separation of powers — legislative veto); Memphis Community

School Dist. v. Stachura, 477 U.S. 299 (1986) (teacher free speech

— damages); Wygant v. Jackson Board of Education, 478 U.S.

1014 (1986) (equal protection — layoffs on basis of race to

promote "role models"); School Board of Nassau County v.

Arline, 481 U.S. 1024 (1987) (Section 504 - teacher with

infectious disease); Hazelwood School Dist. v. Kuklmeier, 484

U.S. 260 (1988) (student free speech — school newspaper); Honig

v. Doe, 484 U.S. 305 (1988) (IDEA — removal of violent disabled

student); DeShaney v. Winnebago Dept. of Social Services, 489

U.S. 189 (1989) taidauaiin due process — duty to protect child

from parents/guardians); Board of Education of Westside

Community Schools v. Mergens, 496 U.S. 226 (1990) (Equal

Access Act — establishment of religion, meaning of "curriculum-

related"); Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

(1991) (due process — punitive damages); Lee v. Weisman, 505

U.S. 577 (1992) (establishment of religion — clergy-led graduation

prayer); Florence County Dist. 4 v. Carter, 510 U.S. 7 (1993)

(IDEA — duty to pay tuition at uncertified private school); Lamb’s

Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993)

(establishment of religion, free speech — use of school facilities);

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

(establishment of religion — providing interpreter to child in

religious school); Grumet v. School Dist. of Kiryas Joel, 512 US.

687 (1994) (establishment of religion — state formation of separate

religious school district); Rosenberger v. Rector and Visitors of

the Univ. of Virginia, 515 U.S. 819 (1995) (establishment of

religion and free speech — funding of student religious

newspaper); United States v. Lopez, 514 U.S. 549 (1995)

(interstate commerce clause — limitation of congressional

authority); Vernonia School Dist. v. Acton, 515 U.S. 646 (1995)

(student search and seizure); Board of Education of Piscataway v.

Taxman, 91 F.3d 1547 (3d Cir. 1996), cert. granted, 117 S.Ct.

2506, writ dismissed, 118 S.Ct. 595 (1997) (Title VI — layoffs on

basis of race to promote "diversity"); Gebser v. Lago Vista

Independent School Dist., 118 S.Ct. 1989 (1998) (Title IX -

standard of liability imposed on school district for teacher on

student sexual harassment); Cedar Rapids School District v.

Garret F., 106 F. 3d 822 (8" Cir. 1997), cert. granted, 118 S.Ct.

1793 (1998) (IDEA- scope of medical services exclusion).

Because this case has such direct bearing on how state

legislatures will resolve this educational issue, NSBA respectfully

requests the opportunity to advise this Court more fully of the

urgency of review in this matter.

Respectfully submitted,

; at School Boards Association

1680 Duke Street

Alexandria, VA 22314

(703) 838-6710

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TABLE OF CONTENTS

Page

REI POE RU IIIRE TESS sc snsssasccisneasssssovsdscccecocsccecouccseideclneds ii

SP NMEA EE IM A icone sas asa. snenvesnciehn ans uccdlbcbucbsta wtbecolis ieee 2

Sic UM et TE 2

ISSUE PRESENTED FOR REVIEW. .........c.ccccccccccceccececcecesceceeces 6

Does the Milwaukee Parental Choice Program

Violate the Establishment Clause of the First

Amendment to the United States Constitution?..............cccccccce0e. 6

ARGUMENT

I. THE PARAMETERS AND LEGALITY OF SCHOOL

VOUCHER PROGRAMS IS ONE OF NATIONAL

SIGNIFICANCE. STATES NEED THIS COURT’S

GUIDANCE ON THIS IMPORTANT ISSUE..........cccccccc0---. 6

Il. THE ESTABLISHMENT CLAUSE ISSUE IS OF

NATIONAL IMPORTANCE. AT THe CORE OF THIS

DEBATE IS WHETHER THE COST OF RELIGIOUS

EDUCATION CAN BE CONSTITUTIONALLY

SHIFTED FROM THE BELIEVER TO THE

TABLE OF AUTHORITIES

CASES:

Agostini v. Felton,

Sahl US. 208, T17 S.C. 1997 (IDO T vsssessicscsessssinrcecnss

Brusca v. State,

332 F. Supp. 275, 279 (E.D. Mo. 1971),

Oe i Be IAD ecnicsscssicasstssnliveiechenstasetusink

County of Allegheny v. ACLU

Greater Pittsburgh Chapter,

ABE Bs Fay OP e A peicincsqnsbencsanseasniniehinivindinestbeon

Giacomucci v. Southeast Delaware

County School District, No. 98-5805

(Del. County Ct. of Com. Pleas, argued

Sept. 2, SOWRE 2s Bis cs Soe er i i

Goodail v. Stafford County School Board,

CO F.3G 16GB Cie 1085) i aah ed

Kotterman v. Killian,

No. C-B970412-SA

(pending Ariz. BGR. 1998) ii. osha is eh

Larson v. Valente,

SIO A FiDs Za Oy LITRE) certs csonessaneracssacosiicrintnainiiiell

Lemon v. Kurtzman,

GS SE rc Oe CE EOD seehsnsttencsdaeseanitensnnnsssehieéedincsedesonssiany

Leutkemeyer v. Kaufmann,

364 F. Supp. 376 (W.D. Mo. 1973),

ONE ANGUS DG oi ii

; te

ili

Page

Lowe v. State,

id Cen I OO ADOT bn i 10

Meek v. Pittenger,

ehibeadinietssinsesis Using Ce NIE cs OE RR 16

Mueller v. Allen,

ath testi enact oe A tad NLA RN RT RRR 8,9

PEARL v. Nyquist,

STS:U Ss 756, FRR GOL AGTS) i icicesisiesssict ER EL he 16

Rosenberger v. Rector and

Visitors of University of Virginia,

ee Ca MCR se iy 16

School District of Grand Rapids v. Ball

473 U.S. 373 (1985)........... piececsasanitphisisnelodadadiniekadien.iccathactoch 16

Simmons-Harris v. Goff,

1997 WL 217583 (Ohio App. 10 Dist.), stay granted,

OOF NE. 28 TOS (OMI 1997) cscs ceccsessec itsidossioseidcbéiecdec. oo: 13

Witters v. Washington Dept. of Services tor the Blind

112 Wa.2d 363, 771 P.2d 1119, cert. denied

sith ane br ai get, CHG 17

Wolman v. Walter,

BFS OS AAPL O YO) ccinnnn secenssunahthiisuci GhiBii Bisipdige 2 cei 2 16

Zobrest v. Catalina Foothills IS.D,

RAND) sisistemscctitsivedisscllncchs cubs diisaid coterie 17

STATUTES:

ARIZ. REV. STAT. ANN § 43-1089 (1997)............cccsccsecessssssseeeneens 9

DEA SI AIG, BE Ge sancti tafe ccrnvesnntccvenshti cali acectconeeriioendiecd 9

MINN. STAT. ANN. § 290.0674 (1997)...........ccccscceesssesessseseesessnons 9

TEX. EDUC. CODE ANN § 11.157 (1997) ...s.scscsssscsecssssesssenecseenees 14

OTHER AUTHORITIES:

The Blum Center’s Educational Freedom Report,

DR, Fake MARIE ts, PRUE sesnnesesse-scnnnnbidiionsisabchniapeceaioksbiets pubbavetniy onto 10

The Blum Center’s Educational Freedom Report,

Ma. O64, Sheen FS FOG i visa sian leet in etn ll

CHURCH AND STATE MAGAZINE, Status of the States:

Tax Aid to Religious Schools (1996) ...........ssssessssesssssesensseseneees 10

SEE PUI NE FOIE raevecencnescockcbst csc deeiliitck estonia iemesencis 12

Fax from New Hampshire School Boards

Association on September 24, 1998 ...............cccceseseeeccessseseeseeseses ll

Fax from John Marshall,

Director of Legislative Services;

Oregon School Boards Association,

, irnatiiiniisccianinisrebsnensnssseenssestersiteatincipsienibseasnens 12

The Freedom Forum, May 14, 1998.............ccscccesssssssseessreneseeees 13

Heritage Foundation,

School Choice Programs (1998)..........-.....ssscssseesseess 10, 11, 12

iv

Page

Laycock, D., Nonpreferential Aid to Religion -

A False Claim About Original Intent

at WO ee 15

PORTLAND PRESS HERALD, April (S| Cee eee 13,14

Schultz, Steve, Budget Lets State Fund

Parochial Schools, MILWAUKEE JOURNAL,

UN TR ick 7

Wisconsin Dept. of Public Instruction,

Basic Facts about Wisconsin

I iii 6

No. 98-376

In the

Supreme Court of the United States

October Term, 1998

WARNER JACKSON, et al., MILWAUKEE TEACHERS’

EDUCATION ASSOCIATION, et al.,

Petitioners,

v.

TOMMY G. THOMPSON, Governor; JOHN T. BENSON,

State Superintendent of Public Instruction, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

wiSCONSIN SUPREME COURT

BRIEF OF NATIONAL SCHOOL BOARDS ASSOCIATION

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE IN

SUPPORT OF THE PETITION

SC eeeseteeetnecaee nel

Petitioners have consented to the filing of this brief.' Their

consent is on file with the Clerk.

' This brief was written by National School Boards Association (NSBA)

who is amicus curiae before this Court and not in any part by counsel for

either party. No person or entity other than NSBA has made a monetary

contribution to the preparation or submission of this brief.

1

INTEREST OF AMICUS

Founded in 1940, NSBA is a not-for-profit federation of

State associations of school boards across the United States and

the school boards of the District of Columbia, Guam, Hawaii, and

the U. S. Virgin Islands. NSBA represents the nation’s 95,000

school board members. These board members govern 14, 772

local school districts that serve more than 46.5 million public

school students — approximately 90 percent of all elementary and

secondary school students in the nation. NSBA has had a

longstanding interest in the effective development and

implementation of local school board policies, including those

touching on the Establishment Clause.

STATEMENT OF THE CASE

In 1989 the Wisconsin legislature enacted the Milwaukee

Parental Choice Program (MPCP). This program permitted up to

1.5% of the Milwaukee Public School population to attend private

nonsectarian schools within the city with the state paying the

tuition costs. Both the students and the schools had to meet certain

eligibility requirements. To be eligible, a student had to be

® im grades K-12:

¢ from a family whose income did not exceed the federal

poverty level by more than 1.75 times: and

¢ either enrolled in a Milwaukee public school, enrolled in a

private school under the program, or not enrolled in any

school the previous year.

School requirements involved compliance with certain

state and federal health, safety, education, and civil rights laws. In

addition, the schools had to meet defined performance criteria and

submit to state financial and performance audits. For each student

enrolled under the program, the iis sctoadiceaaks reduced the

amount of the aid it provided io the Milwaukee Public Schools.

In 1995 the Wisconsin State Legislature amended the

MPCP to increase the percentage of students eligible to 15% and

open the program to sectarian private schools. Sectarian schools,

in addition to the other eligibility requirements, had to agree under

an “opt out" provision not to require any program student to

participate in any religious training, indoctrination or education.

In addition, the amended program modified the method of

payment to participating schools. Tuition payments are issued to

3

the parent/guardian, but delivered to the school where the

parent/guardian is required to endorse the check to the private

school.

The amended program was challenged on several state

and federal grounds. On June 10, 1998 the Wisconsin Supreme

Court held that the amended Milwaukee Parental Choice Program

(MPCP) does not violate the Establishment Clause of the First

Amendment.

The issue involved in the requested review centers on the

Establishment Clause claim. The Wisconsin majority opinion

applied the Lemon v. Kurtzman, 403 U.S. 602 (1971), test to the

amended program to determine constitutionality. The court dealt

swiftly with the primary purpose and entanglement prongs,

providing a more detailed analysis of the primary effect prong. It

stated that the two most important factors in determining if a state

law has the primary effect of advancing religion is whether the

law is neutral regarding religion and whether any benefits it may

bestow on religion are indirect. After reviewing several cases

involving state educational assistance programs that provide

public aid to both nonsectarian and sectarian institutions, it stated

that the U.S. Supreme Court has established the general principle

4

that such programs do not have the primary effect of advancing

religion if the public aid is provided: on the basis of neutral,

secular criteria that neicher favors nor disfavors religion; and only

as the result of numerous private choices of individual

parents/guardians does a sectarian institution receive a benefit.

Applying this principle to the provisions of the amended MPCP,

the Wisconsin Supreme Court found that the eligibility rules for

students are of a secular nature and selection for participation in

the program is made on the basis of religiously neutral criteria. It

also pointed out that the “opt out" provision of the program

shields students from mandatory participation in religious activity.

Finally, the court found that state funds which end up flowing to

sectarian schools, do so only after individual parents/guardians of

students make private choices to enroll students in those schools.

As a result, the court concluded that the amended MPCP does not

have the primary effest of advancing religion.

The dissent, in which the Chief Justice joined, agreed

with the Wisconsin Court of Appeals that the entire amended

MPCP should be struck down because it violates Establishment

principles.

ISSUE PRESENTED FOR REVIEW

Does the Milwaukee Parental Choice Program violate

the Establishment Clause of the First Amendment to the

United States Constitution?

ARGUMENT

I, THE PARAMETERS AND LEGALITY OF SCHOOL

VOUCHER PROGRAMS IS ONE OF NATIONAL

SIGNIFICANCE. STATES NEED THIS COURT’S

GUIDANCE ON THIS IMPORTANT ISSUE.

Unlike the original MPCP this is not a small experimental

program. Approximately 122 private schools in the Milwaukee

area are eligible to receive taxpayer subsidized tuition under the

current MPCP. Up to 15,000 students are eligible to transfer to

eligible private school. This number exceeds the total student

population of all but 5 of Wisconsin’s 427 school districts.

Wisconsin Dept. of Public Instruction, Basic Facts about

Wisconsin Elementary and Secondary Schools. Stated another

way, the total number of students eligible to participate in the

program exceeds the student population of approximately 99% of

Wisconsin’s public school districts.

MPCP fosters private education at the expense of public

schools. MPCP is designed to provide taxpayer funding for a

specified class of private schools. With the transfer of students to

this special class of schools goes the transfer of state dollars

otherwise earmarked for the support and maintenance of the

6

Milwaukee Public Schools. The Milwaukee Journal reported that

Governor Tommy Thompson was clear in his intention to create a

new class of public schools through MCPC. Thompson has said

he wants to push education reforms that have at their root a new

definition of public schools. Steve Schultze, Budget Lets State

Fund Parochial Schools, MILWAUKEE JOURNAL, March 12, 1995,

B.1. Instead of defining public education in terms of a system

publicly owned, publicly staffed, and publicly controlled, MCPC

defines public education as publicly funded but privately

controlled. He wants public funding to follow the student.

The debate surrounding the use of tax dollars to support

private and religious schools began over 25 years ago. During

that time, voucher proponents have built and refined their

arguments to attract maximum support from an array of special

interests. Voucher proponents wart public funds to support

private and religious schools in order to promote their particular

religious or moral beliefs — to have the state financially support

their retreat to their own segregated educational enclaves.

There is substantial activity in the states on school

vouchers. As can be seen graphically, many states have been

7

touched by this issue in the last two years. [See map below.] The

issue has gemerally been presented as tuition tax benefits or tuition

vouchers. This Court resolved the issue of tuition tax benefits in

Mueller v. Allen, 463 U.S. 388 (1993). Similar guidance is now

needed from this Court as they consider voucher programs.

STATE VOUCHER ACTIVITY SINCE 1996

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TTC = Tuition tax credit program

F = Voucher proposal failed

V = Voucher programs active or in pending litigation

(Currently three states have tuition tax credit/deduction

programs which allow parents/guardians to offset the cost of

private education through a reduction in state tax liability. Since

8

Mueller v. Allen, 463 U.S. 388 (1993), these state provisions have

included tuition at private and religious schools as eligible

deductions.

Arizona - The state tax code allows residents to claim a tax

credit of up to $500 for donations to charitable organizations

who provide scholarships for students to attend private and

religious schools. ARIZ. REV. STAT. ANN. § 43-1089 (1997).

The constitutionality of this is being considered by the

Arizona Supreme Court in Kotterman y. Killian, No. C-

B970412-SA (pending Ariz. S.Ct. 1998).

Iowa - Parents/guardians are entitled to take a tax deduction of

up to $1000 per child in school with a limit of four deductions

per family. IOWA CODE ANN. § 422.12.

Minnesota - Parents/guardians are allowed tax deductions for

educational expenses up to $2500 per child. Families with

incomes of less than $33,500 are entitled to a tax credit of

$1,000 per child for educational expenses. MINN. STAT. ANN.

§ 290.0674 (1997).

In 12 states, efforts to institute school voucher programs

have failed.

Delaware - A bill to provide vouchers was not passed out of

the state’s education committee. Heritage Foundation, School

Choice Programs (1998).

Florida - In April, 1998, the state house passed a limited

program providing a $3,500 tuition voucher for preschoolers.

The Blum Center’s Educational Freedom Report, No. 58,

April 24, 1998.

Georgia - The state refused to enforce an anti-desegregation

law which provided grants to white families seeking to opt out

of desegregated schools. Lowe v. State, 482 S.E.2d 344 (Ga.

1997).

Illinois - A bill providing means tested vouchers for students

in Chicago was considered. It was not passed out of the

state’s rules committee. CHURCH AND STATE MAGAZINE,

Status of the States: Tax Aid to Religious Schools (1996).

Kentucky - A tuition voucher bill was introduced, but failed to

be passed out of the Senate’s education committee. Heritage

Foundation, School Choice Programs (1998).

10

Maryland - A tuition voucher bill was introduced, but failed to

be passed out of committee. The Blum Center’s Educational

Freedom Report, No. 54, December 19, 1997.

Mississippi - The Governor proposed a ballot initiative called

the People’s Right to Initiate Model Education (PRIME)

which would allow local communities to adopt voucher

programs. PRIME has received the required number of

Signatures to appear on a state ballot in 1998. Heritage

Foundation, School Choice Program (1998).

Missouri - A tuition voucher bill was introduced but failed to

be passed out of committee. Heritage Foundation, School

Choice Programs (1998).

New Hampshire - A tuition voucher bill introduced in 1998

was defeated in the state legislature. Fax from New

Hampshire School Boards Association on September 24,

1998.

New Jersey - In 1997 the Lincoln Park School District

implemented a program permitting high school students to

attend either a public or private school at public expense. The

11

state education commissioner ruled against the program.

Heritage Foundation, School Choice Programs (1998).

New York - A tuition voucher bill was introduced but failed to

be passed out of committee. Heritage Foundation, School

Choice Programs (1998).

Oregon - In 1997 a tuition voucher bill was introduced, but

failed to be passed out of committee. Fax from John

Marshall, Director of Legislative Services; Oregon School

Boards Association, September 25, 1998.

Eight states have judicial action regarding vouchers.

Colorado - A class action suit was brought in 1997 by ‘

parents/guardians claiming the Denver school system had

failed to teach basic skills. The parents/guardians are seeking

tuition vouchers as a remedy. DENVER POST, May 8, 1997.

Maine - In Bagley v. Town of Raymond, a Cumberland County

Superior Court rejected parents’ allegations that the state’s

refusal to allow them use of vouchers for religious schools is a

free exercise violation. The parents’ appeal is pending before

12

the state supreme court. PORTLAND PRESS HERALD, April 7,

1998.

Massachusetts - Parents/guardians of parochial school

students filed suit against the state, challenging the state

constitution’s prohibition on the use of public funds for

religious schools as a free exercise violation. The Freedom

Forum, May 14, 1998.

Ohio - In 1996 a voucher program for Cleveland students was

enacted. The program included religious schools. The

program was challenged. In May 1997 the Ohio Court of

Appeals found both the US. a Ohio Constitutions were

violated by the program. Simmons-Harris vy. Goff, 1997 WL

217583 (Ohio App. 10 Dist.). The case was appealed to the

Ohio Supreme Court. The Ohio Supreme Court granted a stay

pending its decision. Simmons-Harris v. Goff, 684 N.E 2d 705

(Ohio 1997).

Pennsylvania - The Southeast Delaware County School Board

implemented a private school voucher program, including

religious schools. The program was challenged; the case is

still pending. Giacomucci v. Southeast Delaware County

13

School District, No. 98-5805 (Del. County Ct. of Com. Pleas,

argued, Sept. 2, 1998).

e Texas - Houston School District implemented a program

under the state’s Contracts for Educational Services Act

which allows school districts to place students at private

schools at public expense. TEX EDUC. CODE ANN. § 11.157

(1997),

e Vermont - The town of Chittenden filed an action to enable its

students to attend religious schools at public expense. Trial

court ruled against the town on establishment grounds. The

case is pending before the Vermont Supreme Court.

PORTLAND PRESS HERALD, April 7, 1998.

e Wisconsin - the instant case pending on writ of certiorari.

Regardless of whether voucher plans are good for needy

children in overtaxed urban public schools (and we contend they

cause more harm than good), the state must overcome the First

Amendment’s bar against church-state entanglement before it can

fund religious schools directly.

14

Il. THE ESTABLISHMENT CLAUSE ISSUE IS OF

NATIONAL IMPORTANCE. AT THE CORE OF THIS

DEBATE IS WHETHER THE COST OF RELIGIOUS

EDUCATION CAN BE CONSTITUTIONALLY SHIFTED

FROM THE BELIEVER TO THE TAXPAYER.

The question is whether the &stablishment Clause

requires a subsidy to parents/guardians of children who attend

religious schools equal to the per pupil funding of the public

schools. The Establishment Clause does not require a public

subsidy from religious education - it prohibits it.

This Court has held that, “The clearest command of the

Establishment Clause is that one religion cannot be officially

preferred over another.” Larson v. Valente, 456 U.S. 228, 244

(1982). Equally important, the Establishment Clause prohibits

favoritism to any religion. See D. Laycock, Nonpreferential Aid to

Religion - A False Claim About Original Intent, 27 Wm. & M. «a

Rev. 875 (1991).

“Whatever else the Establishment Clause may mean (and

we have held it to mean no official preference even for

religion over nonreligion, see, e.g., Texas Monthly, Inc. v.

Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1

(1989)), it certainly means at the very least that

government may not demonstrate a preference for one

particular sect or creed (including a preference for

Christianity over other religions).”

County of Allegheny v. ACLU Greater Pittsburgh

Chapter, 492 U.S. 573, 603 (1989),

| 15

In Rosenberger v. Rector and Visitors of University of

| Virginia, 515 U.S. 819, 840 (1995), this Court stated that a tax

levied for the direct support of a church “would run contrary to

Establishment Clause concerns, dating from the earliest days of

the republic.”

This Court, in previous cases has dealt with the issue of

public funding of religious education. In these cases, this Court

has held that the Establishment Clause does not allow direct

public funding of religious education. E.g., PEARL v. Nyquist,

413 U.S. 756, 788 - 89 (1973); School District of Grand Rapids v.

Ball, 473 U.S. 373 (1985); Wolman v. Walter, 433 U.S. 229

(1977); Meek v. Pittenger, 421 U.S. 349 (1975).

Neither is the state required to provide such equal

expenditures on religious education as a part of a free exercise

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

1973), aff'd, 419 U.S. 888 (1974), parents/guardians of parochial

school students challenged Missouri’s refusal to provide them

with free bus transportation while providing such transportation to

public school students. Citing Brusca v. State, 332 F. Supp. 275,

279 (E.D. Mo. 1971), aff'd, 405 U.S. 1050 (1972), the three judge

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court rejected the claim. Accord Witters v. Washington Dept. of

Services for the Blind, 112 Wa.2d 363, 771 P.2d 1119, cert.

denied, 493 U.S. 850 (1989). While a school may constitutionally

provide services, such as a sign language interpreter, Zobrest v.

Catalina Foothills 1.S.D., 509 U.S.1 (1993), it is not required to

do so constitutionally. Goodall v. Stafford County School Board.

60 F.3d 168 (4" Cir. 1995).

This Court has upheld the provision of services to

religious schools. However, permitting public school teachers to

go into religious schools to instruct students in remedial courses is

not the same as directly funding religious instrrction. The MPCP

is direct funding of religious instruction — no more, no less.

Recall Justice Souter’s words in Agostini v. Felton, 521

U.S. 203, 117 S.Ct. 1997 (1997), we tend “to forget the hard

lessons, and to overlook the history of governmental partnership

with religion when ... bureaucrats have programs. That tendency

to forget is the reason for having the Establishment Clause (along

with the Constitution’s other structural and _ libertarian

guarantees), in the hope of stopping the corrosion before it starts.”

117 S.Ct. at 2021 (Souter, J. dissenting).

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CONCLUSION

Proponents of educational vouchers offer beguiling

promises of the benefits sure to follow if rzivate schools are made

available to all parents/guardians. The assumptions are that:

private schools are better than public schools; private schools will

open their doors to any parent who knocks; innovative private

schools will spring up in the private sector; public schools,

sluggish from years of holding a monopoly, will be jolted to life

by competition from private schools and propelled toward long

needed reforms. This is not a logical reality. Vouchers are not an

educational panacea. Vouchers are not a path to improving public

education. In fact, proponents of vouchers are asking us to

abandon the public schools. They are asking for a government

handout of our tax dollars to benefit their own narrowly tailored

interests.

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Amicus requests that this court grant certiorari to settle

the controversy over the legal parameters of school voucher

programs and offer state legislatures and courts clear guidance,

Respectfully submitted,

DERWOOD, General Counsel

al Schou! Boards Association

1680 Duke Street

Alexandria, VA 22314

(703) 838-6710

Counsel of Record

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