SUPREME COURT OF OHIO

On Appeal from the Tenth District Court of Appeals, Franklin County, Ohio

BRIEF OF THE INSTITUTE FOR PUBLIC AFFAIRS - UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA AS AMICUS CURIAE IN SUPPORT OF APPELLANT/CROSS APPELLEE

INTEREST OF THE AMICUS CURIAE

The amicus is a National Orthodox Jewish organization that represents Jewish parents who choose to enroll their children in Jewish schools where a religious education is combined with a secular education. Such a decision is a valid exercise of their Constitutional right as parents to determine the education and religious upbringing of their children. The Union of Orthodox Jewish Congregations of America (the "U.O.J.C.A.") is the largest synagogue organization in North America with almost 1,000 member congregation. Through its Institute for Public Affairs, the U.O.J.C.A. represents the interests of its national constituency on public policy issues.

INTRODUCTION

In recent years, the Cleveland City School District has encountered a severe educational and fiscal crisis. In response to this crisis, the State of Ohio enacted R.C. 3313.974-3313.979, the Ohio Pilot Scholarship Program (the "Pilot Program").

Under this initiative, some of the government aid provided to parents of school-children indirectly benefits sectarian institutions. However, the purpose of the challenged statute is a legitimate secular one, the principal effect of the Pilot Program neither advances nor inhibits religion, and it will not result in "excessive entanglement" between the government and a religious institution. As such, the statute is clearly constitutional.

Even if the Pilot Program partially resembles programs that have been struck down by the Court under the Establishment Clause in prior decisions, the United States Supreme Court has affirmed a more permissive approach in its First Amendment jurisprudence in recent years. In cases involving issues concerning aid to sectarian schools as well as the right of religious groups to "open forums", the Supreme Court of the United States has both allowed for a wider scope of indirect government aid to sectarian schools and recognized that once general programs have been established by the government, it is unconstitutional to discriminate against religious groups in their implementation. In light of this approach, the statute being challenged in this case should be upheld under the Establishment Clause of the Federal Constitution.

Moreover, it has been consistently held that Article I, Section 7 and Article VI, Section 2 of the Ohio State Constitution, the provisions under which this statute is being challenged, are coextensive with the Establishment Clause of the United States Constitution. Therefore, insofar as the Ohio Pilot Scholarship Program is valid under the Federal Constitution, it is also valid under the State Constitution.