NSBA Amicus Brief Jackson v. Benson (U.S. Sup. Ct.)

Petitioners have consented to the filing of this brief.¹ Their consent is on file with the Clerk.

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.

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

• in 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 state proportionately reduced the amount of the aid it provided to 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 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 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 neither 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 effect 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.

Does the Milwaukee Parental Choice Program violate the Establishment Clause of the First Amendment to the United States Constitution?

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

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 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 v. 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).

   

• 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 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 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 U.S. and Ohio Constitutions were violated by the program. Simmons-Harris v. 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 School District, No. 98-5805 (Del. County Ct. of Com. Pleas, argued, Sept. 2, 1998).

   

• 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).

   

• 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.

   

• Wisconsin – the instant case pending on writ of certiorari.

II. 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 Establishment 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. L. 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).

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 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 I.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 (4th 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 instruction. 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).

Proponents of educational vouchers offer beguiling promises of the benefits sure to follow if private 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.

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,

JULIE UNDERWOOD, General Counsel
National School Boards Association
1680 Duke Street
Alexandria, VA 22314
(703) 838-6710
Counsel of Record

¹ 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.