II. THE OHIO PILOT SCHOLARSHIP PROGRAM DOES NOT VIOLATE THE ESTABLISHMENT CLAUSE OF THE UNITED STATES CONSTITUTION BECAUSE ANY BENEFITS THAT FLOW TO SECTARIAN INSTITUTIONS DO SO ON THE BASIS OF VOLUNTARY CHOICES OF PRIVATE INDIVIDUALS WHO MEET NEUTRAL QUALIFICATIONS CRITERIA.

A review of various Establishment Clause cases decided by the Supreme Court over many decades suggests that the Supreme Court has adopted strikingly different approaches to legislative initiatives that serve to create or support a relationship between government and religion over the course of its history. It is clear however, that in the last decade, the Court has adopted a more accommodating posture with regard to general government programs that may indirectly benefit sectarian institutions. The Supreme Court itself formally recognized this legal development in Agostini, a case decided after the Ohio Court of Appeals reached its decision in the case at bar. In Agostini, the Court actually overruled two previously decided cases to the extent that they were inconsistent with its subsequent Establishment Clause decisions. Id. at 2017 (where the Court held that the Establishment Clause did not bar the New York Board of Education from sending public school teachers into parochial schools to provide remedial assistance to students pursuant to a general program).

This change in Establishment Clause doctrine can be identified in two categories of cases: cases involving "open forum" policies that indirectly benefit sectarian groups; and cases that relate to government programs which provide some type of aid to religious institutions as part of a larger legislative program.

First, the Court has consistently held in recent years that "having created a forum generally open to student groups", a state university cannot deny a religious organization access under the Establishment Clause. Widmar v. Vincent, 454 U.S. 263, 277 (1981). See also, Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). Even where the "forum" provided was made possible through funds from a general student activity fee, the Supreme Court "rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design." Rosenberger v. Rector and Visitors of the University of Virginia, 115 S. Ct. 2510, 2522 (1995). This "open forum" policy is not limited to state universities; it has been extended to high schools to require them to provide equal access to speech for religious groups. Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 253 (1990).

Clearly a distinction must be drawn between our case and cases that prohibit the discriminatory exclusion of religious groups from open forums provided by state universities and public high schools. Nevertheless, these cases can be used to illustrate the Supreme Court's general approach to the Establishment Clause. The Supreme Court implicitly reached this very conclusion when it referred to the Rosenberger holding in evaluating the constitutionality of a neutral state program that indirectly benefited parochial schools. Agostini at 2007. Moreover, the actual holding in Rosenberger was not limited to the narrow facts of the case; rather, the Court stated generally "that the guarantee of neutrality is respected, not offended when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Rosenberger at 2521. This interpretation of the Establishment Clause applies directly to a case like ours where a neutral program intended to benefit the Cleveland City School District as a whole, is evenly applied to all recipient families, including those who choose to avail themselves of sectarian schools. This category of cases is thus helpful in identifying the current Supreme Court approach to programs like the Pilot Program.

Second, as mentioned above, the Supreme Court itself has recognized that its Establishment Clause jurisprudence "has significantly changed" in recent years. Agostini at 2017. It was this change that led the Court to overrule two earlier cases to the extent that the decisions were inconsistent with their current understanding of the Establishment Clause. Id.

The Court has recently upheld the principle that religious institutions are not "disabled by the First Amendment from participating in publicly sponsored social welfare programs." Zobrest at 8 (quoting Bowen v. Kendrick, 487 U.S. 589, 609 (1988)). There is no term that better describes the Ohio Pilot Scholarship Program, a legislative scheme intended to repair the Cleveland City School District using public funds. The salvation of the School District is the primary and exclusive purpose of the challenged statute, and any indirect benefits enjoyed by sectarian institutions are incidental. This program will not, however, achieve its objective overnight and neither its purpose nor its "effect" can be fairly evaluated at this premature time. Rather, the program must truly be seen as a general and comprehensive social welfare program and its overall intended and actual effect must be examined in that light. It is thus clear that under the current Supreme Court Establishment Clause doctrine, the constitutionality of the Pilot Program should be upheld.