ARGUMENT

I. THE OHIO PILOT SCHOLARSHIP PROGRAM DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE OF THE UNITED STATES CONSTITUTION; IT IS CONSISTENT WITH THE THREE-PRONG TEST ENUNCIATED IN LEMON V. KURTZMAN, 403 U.S. 602 (1971).

It is the constitutional right and duty of a parent to provide his/her child with an education "suitable to their station in life." Meyer v. Nebraska, 262 U.S. 390, 400 (1923). The right of a parent to direct the education of his/her child without unreasonable restrictions has been firmly established under the Fifth and Fourteenth Amendments. Id.; Farrington v. Tokushige, 273 U.S. 284, 298-99 (1927). Compelling children to accept public rather than private instruction is a violation of this right; the Supreme Court has determined that legislation of this nature "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control". Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). The "traditional concepts of parental control over the religious upbringing and education of their minor children" have long been recognized by the Supreme Court in its past decisions. Wisconsin v. Yoder, 406 U.S. 205, 231 (1972). Any measure taken by the government that affects the constitutionally protected right of parents to educate their children as they see fit must be considered in light of the historical regard afforded this right. Moreover, the government has a responsibility to its citizenry to ensure that a basic standard of education is met within the schools under its jurisdiction so that parents will truly have the opportunity to exercise their right and duty to educate their children.

The parental right to educate one's child in the manner one desires does not stand alone. Rather, the State has a corresponding right and responsibility to regulate all schools in the manner necessary to protect the public good. See Pierce at 534; Meyer at 401. It was in fulfillment of this responsibility that the Ohio legislature enacted R.C. 3313.974-3313.979, the Pilot Program, which was established in response to a severe educational and fiscal crisis in the Cleveland City School District.

In response to this problem, the Pilot Program was established as one uniform initiative with two main elements: (1) a scholarship program to enable students to attend "alternative" schools; and (2) a tutorial program to provide students with financial aid for tutorial assistance within the public school system. In order to address the challenges facing the school district, the State of Ohio attacked the system from two directions: it opened up the alternative school system to those who were previously unable to afford it, and made the tutorial opportunities within the public school system available to those for whom it had previously been financially unfeasible. The objective of the Pilot Program was not and is not the establishment or support of any sectarian institution; any indirect benefit derived by sectarian schools through the program is indirect and constitutionally permissible.

A. THE OHIO PILOT SCHOLARSHIP PROGRAM'S PURPOSE IS SECULAR

The Supreme Court has long recognized that a full and complete separation of state and religion is impossible and undesirable; "[s]ome relationship between government and religious organizations is inevitable." Lemon v. Kurtzman, 403, U.S. 602, 614 (1971). In order to strike a balance between this inevitable relationship and the dictates of the Establishment Clause, the Court created a three-part test for permissible government action. "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." Id. at 612-13. The statute challenged in this case meets all three parts of this test and is thus constitutionally valid.

First, all parties to this case have already stipulated that the legislation in question is aimed at low income parents and is thus adequately supported by a secular legislative purpose. See, Plaintiffs-Appellants Brief at 11, Simmons-Harris (Nos. 96 APE 08-991, 96 APE 08-982).

Moreover, the Supreme Court has explained the aim of Lemon's first prong as follows: the "'purpose' requirement aims at preventing the relevant governmental decisionmaker...from...acting with the intent of promoting a particular point of view in religious matters." Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987). It is clear that those who enacted the Pilot Program thought only to address the state's "legitimate interest...in providing a fertile educational environment for all school children...." Wolman v. Walter, 433 U.S. 229, 236 (1977). Thus, the Pilot Program clearly passes the first prong of the Lemon test.

B. THE PRIMARY EFFECT OF THE OHIO PILOT SCHOLARSHIP PROGRAM IS SECULAR

Second, the true primary effect of this legislative initiative is the overall improvement of the entire Cleveland City School District. In response to the substantial problems encountered by the School District, the State has enacted a comprehensive legislative scheme designed to both expand the scope of educational choices and enhance the academic services attainable by low income parents within the existing schools. In order to achieve this objective, it has designed a program that makes both scholarship funds and tutorial grants available to parents.

This program can clearly be distinguished from the type of program struck down in Committee for Public Education and Religious Liberty v. Nyquist, 416 U.S. 756 (1973), a case relied on heavily by the Appellees/Cross Appellants in their Brief to the lower court and the Ohio Court of Appeals in their determination of this case. See Brief of Plaintiffs-Appellants at 11; Simmons-Harris at 5. In Nyquist, the United States Supreme Court struck down a New York statute which provided aid to non-public schools through maintenance and repair grants, tuition reimbursement grants, and income tax benefits to parents of children attending New York non-public schools because it found that the primary effect of the statute was to provide financial support to sectarian institutions. Nyquist at 798. The Appellees/Cross Appellants in this case would have the Court believe that the Ohio Pilot Scholarship Program is also exclusively intended to aid sectarian schools, and that the out-of-District public schools and the tutorial program have been included as mere "smoke screens" to mask the true purpose of this program. This is an incorrect argument. The out-of-District schools and the tutorial program were included in this legislative scheme precisely because the objective sought by the State of Ohio is not financial assistance for sectarian schools but rather the overhaul of the entire School District.

It is also critical to recognize that the effect of this program cannot be evaluated through one isolated window of time in the program's infancy. While it is true that statistical evidence indicates that sectarian schools in the Cleveland School District are being disproportionately advantaged through this program at this specific time, the overall effect of the Pilot Program, if permitted to run its course, will be the enhancement and improvement of the entire School District and all the schools within it. In Mueller v. Allen, 463 U.S. 388, 401 (1983), the United States Supreme Court wisely recognized the imprudence of evaluating programs of this nature through limited statistical evidence. In that case, the Court declined to consider statistical evidence intended to show that the effect of a legislative scheme was to benefit sectarian institutions, stating that it "would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports...." Mueller at 401.

In truth, the program being challenged in this case is similar to those programs that have been upheld under the Establishment Clause in other Supreme Court cases. See, e.g., Everson v. Board of Education of Ewing TP., 330 U. S. 1, 17 (1947) (program that provided transportation for students to parochial schools as part of a general bus program upheld against a First Amendment challenge); Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 488-89 (1985) (State may extend state vocational rehabilitation assistance to a qualifying blind person who chose to attend a Christian college); and Mueller at 404 (Minnesota statute allowing parents of children in sectarian schools to deduct the costs of tuition, textbooks and transportation for their children as part of a general program upheld). It is clear that the challenged statute is a uniform and comprehensive response to the educational and fiscal crisis facing the Cleveland School District whose ultimate overall effect will be entirely unrelated to the support of sectarian institutions.

Moreover, even if sectarian schools do receive aid as an outcome of this program, such aid is only received by the schools through a myriad of independent choices made by the parents of students. This type of "aid" cannot be described as a violation of the Establishment Clause any more than can be the use of Social Security benefits to buy religious articles or one's availing of the tax deduction for charitable contributions to a taxpayer's house of worship.

This principle has been consistently upheld by the Supreme Court. In Mueller for example, the Court noted that almost all of the then-recent cases invalidating state aid to parochial schools involved the direct transmission of assistance from the state to the schools. Mueller at 399. The Mueller Court held that "[w]here...aid to parochial schools is available only as a result of decisions of individual parents, no 'imprimatur of State approval' can be deemed to have been conferred on any particular religion, or on religion generally." Id. In Witters, the Court found that "the fact that aid goes to individuals means that the decision to support religious education is made by the individual, not the state." Witters at 488. In Zobrest v. Catalina Foothills School District, 509 U. S. 1 (1993), the Supreme Court held that the Establishment Clause does not bar the government from providing an interpreter to a deaf student attending a Catholic school under the Individuals With Disabilities Act, in part because the interpreter was placed in the sectarian school "only as a result of the private decision of the individual parents." Zobrest at 10. Just last term, in Agostini v. Felton, 117 S. Ct. 1997 (1997), the Court upheld a finding that government grants disbursed to students who used this money to obtain religious education "was no different from the State's issuing a paycheck to one of its employees, knowing that the employee would donate part or all of the check to a religious institution." Agostini at 2011.

It thus is clear that when government aid is provided to a wide class of people under a neutral program, it is constitutionally permissible for this aid to be distributed to sectarian institutions through the independent, private decisions of individual parents. This is precisely the nature of the program being challenged in this case. Under the Pilot Program, scholarship funds are distributed to the schools specified by low-income parents, the parents must then endorse the checks over to the school in order to release the funds. The fact that the government sends the checks directly to the sectarian schools is hardly relevant. The fact is, that the scholarship checks are only distributed to the schools at the direction of the parents, and the funds only become available to the schools when the individual parents claims ownership of the funds made available to them and actively decides to endorse the checks over to the school. There is no direct transmission of aid between the State and the schools involved in the scholarship program, sectarian or otherwise.

There being no direct aid to a sectarian institution by the government, the second prong of the Lemon test is thus fulfilled.

C. THE OHIO PILOT SCHOLARSHIP PROGRAM DOES NOT EXCESSIVELY ENTANGLE CHURCH AND STATE

Finally, it is clear that the third requirement established in Lemon has also been met in this case as the relationship between the State of Ohio and religious institutions under R.C. 3313.974-3313.979 is not characterized by excessive entanglements. "There is no exact science in gauging the entanglement of church and state." Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 766 (1976). Rather, the relevant factors are to be considered "cumulatively" in judging the degree of entanglement. Tilton v. Richardson, 403 U.S. 672, 688 (1971). Additionally, "[e]ntanglement must be "excessive" before it runs afoul of the Establishment Clause. Agostini at 2015.

In this case, there is no excessive entanglement between the State and religious institutions or religion in general. The nature of the aid provided to the beneficiary schools is non-ideological (considered by the Court in Tilton as a factor of excessive entanglement), the State does not bear a heavy responsibility of regulation and surveillance of the sectarian schools involved in the program, and there is no direct aid provided by the government to any religious institutions. The relationship between the State of Ohio and the sectarian schools involved in the Pilot Program is attenuated and indirect; the relevant factors considered cumulatively indicate that there is no excessive entanglement resulting from the legislation challenged in this case. In summary, careful examination of the legislation at issue in this case reveals a secular legislative purpose to the statute with a primary effect that neither advances nor inhibits religion and does not create excessive government entanglement with religion. It is thus clear that under the Lemon test as it has been applied by the Supreme Court in subsequent cases, the Ohio Pilot Scholarship Program is constitutional.