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Gatton v. Goff
On Appeal from the Court of Common Pleas for Franklin County, Ohio (1996)

ARGUMENT

MUELLER AND ITS PROGENY ARE DIRECTLY ON POINT AND CONFIRM THE PROGRAM'S FEDERAL CONSTITUTIONALITY

The Pilot Project Scholarship Program at issue in this case, R.C. 3313.974-979 (the "Program"), provides for "a number of students residing in [the Cleveland City School District] to receive scholarships to attend alternative schools, and for an equal number of students to receive tutorial assistance grants while attending public school in such district." 3313.975(A). An "alternative school" is "a registered private school located in a school district or a public school located in an adjacent school district." 3313.974(G). Students are free to apply for either scholarship grants, 3313.978(A), or tutorial assistance grants, 3313.978(B), as they choose. Students who receive scholarship grants may use them to enroll in either a participating public school in an adjacent district, 3313.978(A)(1), or a registered private school within the district, 3313.978(A)(2), as they choose.

In short, the Program is designed to provide students in the Cleveland City School District (and, of course, their parents) an array of options to better their education. They may decide they are best off remaining in their local public school, and apply for tutorial assistance grants. They may decide they are best off attending a participating public school in an adjoining school district, and apply for a scholarship for that purpose. They may decide they are best off attending a non-sectarian private school within the district, and apply for a scholarship for that purpose. Or they may decide they are best off attending a private religious school within their district, and apply for a scholarship for that purpose.

Attacking Judge Sadler's ruling below upholding this broad array of educational options, appellants/plaintiffs point to Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), where the Supreme Court invalidated a New York statute that provided tuition reimbursement assistance to parents who enrolled their children in nonpublic schools because the grants were not limited to the secular functions of religious schools. 413 U.S. at 780-83. In considering "whether the fact the grants are delivered to parents rather than to schools is of such significance as to compel a contrary result," the Court conceded the relevance of the point but deemed it "only one among many factors to be considered," id. at 781, and concluded that on balance the New York program amounted to an unconstitutional establishment of religion.

But the Supreme Court has since made clear that the fatal constitutional flaw in the Nyquist statute was its conferral of benefit exclusively upon parents who educated their children in nonpublic schools. Had New York simultaneously provided benefits for parents who incurred costs educating their children in public schools, the First Amendment would not have been offended -- even if the economic value of the benefits would have been greater for parents of non-public school children than for parents of public school children; even if there were no religious use restriction on how nonpublic schools could make use of the dollars they would indirectly receive. That is the unambiguous teaching of Mueller v. Allen, 463 U.S. 388 (1983).

At issue in Mueller was a Minnesota law conferring tax benefits upon parents who incur expenses for the elementary or secondary education of their children -- a deduction of up to $500 of "tuition, textbooks and transportation" expenses incurred for children in grades K-6, and up to $700 of such expenses incurred for children in grades 7-12 -- regardless of the type of school their children attend.

The Court upheld the challenged statute. Emphasizing that "under Minnesota's arrangement public funds become available [to religious schools] only as a result of numerous private choices of individual parents," the Court averred that "no 'imprimatur of state approval' can be deemed to have been conferred on any particular religion, or on religion generally." 463 U.S. at 399 (citation omitted). Indeed, "all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves," id., rather than to parents.

The one case involving unconstitutional assistance to parents, noted the Mueller Court, was Nyquist. Id. But the Minnesota statute was "vitally different" from the New York statute struck down in Nyquist, because its benefit "is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools". The Nyquist tuition reimbursement grant, in contrast, was available "only to parents of children in nonpublic schools." 463 U.S. at 397-98 (emphasis in original).

The Mueller Court reached this conclusion despite the fact that, as Justice Marshall emphasized in dissent, the tax benefit available to Minnesotans whose children are in tuition-free public schools -- the right to deduct expenses incurred for such items as "the cost of gym clothes, pencils, and notebooks" -- is necessarily "de minimis", whereas "the bulk of the tax benefits afforded by the Minnesota scheme [i.e., deductions for tuition expenses] are enjoyed by parents of parochial school children." 463 U.S. at 408-09 (Marshall, J., dissenting). Addressing this point head on, the Court's majority rejected the notion that "the constitutionality of a facially neutral law [should turn] on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law ." 463 U.S. at 401. "More fundamentally," added the Court, if the Minnesota tax deduction law benefits nonpublic school parents more than public school parents, such "unequal effect...can fairly be regarded as a rough return for the benefits...provided to the State and all taxpayers by parents sending their children to parochial schools." Id. at 402.

Nor was the Mueller Court deterred by the absence of any effort by the Minnesota legislature to ensure that the governmental assistance would be restricted to the secular functions of religious schools. Again, Justice Marshall raised his voice in dissent: "Nyquist makes clear that the State may not provide any financial assistance to parochial schools unless that assistance is limited to secular uses." 463 U.S. at 409 n.2. The Court's majority disagreed, concluding that "[t]he historic purposes of the [Establishment] 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 Program at issue here is in all critical respects identical to the tax deduction that was at issue in Mueller. Benefits are available under the Program for students and their parents who choose public education as well as private education, secular education as well as sectarian education. Choices among the array of options are made by individuals, not by government; any benefit accruing to religious schools is a result of independent parental choice, not direct governmental largess. Under these circumstances, it is constitutionally irrelevant whether the bulk of funds available under the Program may in fact be used by parents to pay religious school tuition costs, or that the religious schools' use of any such funds is unencumbered by religious use restrictions.

Mueller is settled constitutional doctrine. As Judge Sadler noted, its holding has been followed in an unbroken string of Supreme Court decisions, most notably Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986), and Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

Witters deserves particularly close attention. The case involved a challenge against a Washington State vocational rehabilitation grant to a blind person who chose to use the grant to enroll in a religious college and train for a religious calling. In its unanimous 9-0 ruling upholding the grant, the Court set forth the critical factors governing the constitutional analysis of such governmental assistance:

"Certain aspects of Washington's program are central to our inquiry. As far as the record shows, vocational assistance provided under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice. Any 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. Washington's program is made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted, and is in no way skewed towards religion... In this case, the fact that aid goes to individuals means that the decision to support religious education is made by the individual, not by the State." 474 U.S. at 487-88 (footnote and citations omitted).

The Witters decision, notably, was authored by Justice Marshall -- the same Justice Marshall who had dissented in Mueller. Indeed, Justice Marhsall's majority opinion in Witters reprises one of the themes of his dissent in Mueller: his view of the constitutional relevance of the percentage of the program funds funneled to religious institutions. "[I]mportantly, nothing in the record indicates that, if petitioner succeeds, any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education... No evidence has been presented indicating that any other person has ever sought to finance religious education or activity pursuant to the State's program." 474 U.S. at 488.

In their briefs on this appeal, the Gatton plaintiffs/appellants (at page 26), as well as amici curiae The National Committee for Public Education & Religious Liberty (at pages 10-11) and The American Jewish Congress, et al. (at page 12), rely on this section of Justice Marshall's Witters opinion to suggest that Witters would have been decided otherwise had a majority of the assistance under the Washington program been used for religious training. They accordingly argue that the Program at issue here, which most likely would result in a substantial percentage of the Program benefits flowing to religious schools, is constitutionally unsound.

This reading of Witters, though, is belied by the fact that five concurring Justices in Witters took pains to distance themselves from Justice Marshall's position, and to emphasize the continued vitality of Mueller's broad holding. 474 U.S. at 490 (White, J., concurring); id. (Powell, J., concurring, joined by Burger, C.J., and Rehnquist, J.); id. at 493 (O'Connor, J., concurring). Justice Powell made the point most forcefully, rejecting the notion that Mueller was inapplicable because it involved tax benefits rather than cash grants, and expressly reaffirming the constitutional irrelevance of the relative percentages of funds flowing to sectarian schools:

"[I]n Mueller, we sustained a tax deduction for certain educational expenses, even though the great majority of beneficiaries were parents of children attending sectarian schools. We noted the State's traditionally broad taxing authority, but the decision rested principally on two other factors. First, the deduction was equally available to parents of public school children and parents of children attending private schools. Second, any benefit to religion resulted from the 'numerous private choices of individual parents of school-age children.'

"The state program at issue here provides aid to handicapped students when their studies are likely to lead to employment. Aid does not depend on whether the student wishes to attend a public university or a private college, nor does it turn on whether the student seeks training for a religious or a secular career. It follows that under Mueller the State's program does not have the 'principal or primary effect' of advancing religion.

"Contrary to the Court's suggestion, this conclusion does not depend on the fact that petitioner appears to be the only handicapped student who has sought to use his assistance to pursue religious training. Over 90% of the tax benefits in Mueller ultimately flowed to religious institutions. Nevertheless, the aid was thus channeled by individual parents and not by the State, making the tax deduction permissible under the 'primary effect' test of Lemon." 747 U.S. at 491 & n.3 (citations omitted) (Powell, J., concurring).

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