Zelman v. Simmons-Harris - Oral Argument

ORAL ARGUMENT OF JUDITH L. FRENCH ON BEHALF OF THE STATE PETITIONERS

Chief Justice Rehnquist: We'll hear argument now in Number 00-1751, Susan Tave Zelman, Superintendent of Public Instruction of Ohio v. Doris SImmons-Harris, and two related cases.

Ms. French.

Mr. French: Thank you, Mr. Chief Justice, and may it please the Court:

In 1995, the Ohio General Assembly responded to an unprecedented educational crisis by enacting the Ohio Scholarship and Tutorial Program.

Under this Court's decisions, especially Mueller, Witters, and Zobrest, and in light of this Court's teachings, most recently in Agostini and Mitchell, the Ohio program is constitutional because it offers a neutral program that offers true private choice to parents.

First, the principle of neutrality.

There are two criteria that determine where the benefits will go under the program.

First is residence in a school district that is or has been taken over by State control.

Second is family income.

Neither of these criteria has anything to do with religion, but even beyond these basic elements--

Unidentified Justice: Well, do you... you don't take the position that that guarantees constitutionality, do you?

Mr. French: --We do not, Your Honor.

Unidentified Justice: Okay.

Mr. French: We have a two-pronged approach.

Unidentified Justice: You take it as a necessary condition, but not a sufficient condition?

Mr. French: We do, Your Honor.

We offer both neutrality and true private choice, but even beyond the basic elements of neutrality, there are a number of provisions within this program that guarantee that it's open to all-comers, both in terms of students and schools.

First, the program requires schools not to discriminate based on race, religion, or ethnic origin, that ensures that even a religious school may not discriminate in favor of students of their own religious faith.

Unidentified Justice: And you think it would be unconstitutional if it didn't have that--

Mr. French: Not necessarily, Your Honor, but it certainly goes to the neutrality of the program, but even beyond the--

Unidentified Justice: --Well, why does it matter?

I mean, if they're proselytizing, doesn't it make good sense for them to admit anybody who may come along, and yet the proselytizing can't be established under the Establishment Clause?

Mr. French: --We, of course, Your Honor, do you agree that they're proselytizing.

Whatever proselytizing is happening in the religious schools is at the behest of the parents, not at the behest of the Government, and perhaps I should move to the second prong, then, and talk about--

Unidentified Justice: Well... go ahead.

Mr. French: --And talk about the true private choice that is at issue here for the parents.

Unidentified Justice: Well, but I take it that the first part of your argument as demonstrated is to try to show that there are certain indexes, indicia of neutrality.

Mr. French: Correct.

Unidentified Justice: And you just... and you tick them off.

Mr. French: Yes, Your Honor.

Yes, that there is the Nondiscrimination Clause, and secondly that there is a cap on the number of students that... who are already in the program, and the limit on the number who can continue in the program.

Only 50 percent of the scholarships awarded each year may be awarded to students who are already in the program.

That again assures that the program be open to all-comers, to those eligible in the Cleveland School District.

Thirdly--

Unidentified Justice: What percentage of the students in the school system are... get vouchers?

Mr. French: --Well, there are 57,000 students, elementary students in the Cleveland School District, Your Honor.

About 4,000 of them get scholarships.

Unidentified Justice: About how many thousand get scholarships, 2,000?

Mr. French: In 1999 the number was 3,700.

It's now about three thousand four--

Unidentified Justice: So it's about 10 percent of the student body?

Mr. French: --Yes, Your Honor, a little less than 10 percent, but all the students in the Cleveland School District are eligible.

They all receive information about the program, all are invited to attend, as long as the resident is in the school district, and then family income determines the amount of the scholarship that they receive.

The third and final prong of the neutrality here is the benefit itself.

It is, of course, money.

It is inherently neutral.

There is nothing about that benefit that suggests any sort of reference to religion.

The second prong this Court has looked to is the true private choice available for receiving the benefits.

Here, Cleveland parents have a number of alternatives available to them.

They can stay in the Cleveland Public Schools--

Unidentified Justice: May I ask you a question about private choice which is a very important part of the case?

Supposing you had a situation with a small community that had one public school and one religious school, and they would pay for the voucher to go to the religious school if the family on its own private choice wanted the child to go to the religious school.

Would that save the program in that case?

Mr. French: --I think it would, Your Honor--

Unidentified Justice: Yes.

Mr. French: --given... if... of course--

Unidentified Justice: So in this case it's irrelevant, really, that there are four or five choices available, as long as there's a free choice either to go to the public school or to go to the religious school?

Mr. French: --Well, we have a number of choices within the traditional public schools, Your Honor.

Unidentified Justice: But they're not... it's not necessary to your argument is what I'm trying to--

Mr. French: They are not necessary, Your Honor.

However, this Court has viewed other programs in view of the entire... viewed as a whole of the program.

For instance, in Rosenberger, Justice Powell's decision in Witters--

Unidentified Justice: --In Witters, there's such a dramatic difference between a choice from the great universe of colleges and universities, what a particular student will choose, and here, the difference... you just explained to Justice Stevens that maybe it doesn't matter.

The difference is that in fact there is only one alternative, if you don't take account of the community schools, the suburban schools say no, they don't want any part of this, private schools can't make it on that low tuition, so in fact, isn't it true that something like 99 percent of the students who were receiving these vouchers are in religious schools?

Mr. French: --That's currently true, Your Honor.

That number has fluctuated over the years of the program.

It's fluctuated a great deal from 1995 to this year.

That's true.

Unidentified Justice: May I ask why we don't take account of the availability of the community schools in analyzing this program?

Mr. French: We would like the Court to take very much account of the community schools, Your Honor.

Unidentified Justice: The court below didn't do that.

Mr. French: That's correct, Your Honor.

Unidentified Justice: Is that an option, in fact, to the parents?

Mr. French: Very much so, Your Honor.

Unidentified Justice: And the tuition assistance would be provided if the selection were for a community school?

Mr. French: There would be no tuition assistance, Your Honor, only because they are public schools, so there's no need for a scholarship there.

Parents can choose a traditional public school, they can choose a tutoring grant if they're in a public school, they can choose a magnet school, they can choose a community school, or--

Unidentified Justice: And if a community school is selected, no additional money then is provided, as would be provided if the religious school were selected?

Mr. French: --That's true, Your Honor.

If the parent chooses a community school, because it's considered a public school, there is no money exchanged.

It's only--

Unidentified Justice: Have some of the private nonsectarian schools in the city become community schools?

Mr. French: --They have, Your Honor.

There were two schools in particular who in 1997 chose to be community schools rather than be in the scholarship program just after the district court's injunction.

Unidentified Justice: Because they get more money.

Because they get more money.

Mr. French: In part because they get more money, and in part because of the uncertainty of the litigation.

There certainly has been a chilling effect as a result of the litigation that's been going on in some form since 1995.

Unidentified Justice: Are slots available in the community schools for these children that we're talking about?

Mr. French: Yes, Your Honor, there are spots available.

Unidentified Justice: There are vacancies?

Mr. French: Available in both community schools--

Unidentified Justice: Can you get a tutoring grant if you go to a community school?

Mr. French: --Yes, Your Honor, you can.

As long as you're in a public school, and that would include community or magnet schools, you're eligible for a tutoring grant.

Unidentified Justice: Is there anything in the record about the quality of these community schools?

There was one brief that said they were too new, too few, too unregulated, too untested to tell.

Was there any evidence of what these schools are, when... there is evidence that the public school system is deplorable.

What evidence is there of these community schools, of whether they are a better choice to educate the child than the regular public schools?

Mr. French: I would direct the Court to two places in the record, particularly the joint appendix.

One is the affidavit of Mr. Puckett, which is at 157a, which simply describes what a community school is, the number of schools that are available, the number of spaces that are available.

There is also the affidavit of Paul Peterson, at approximately 98 of the joint appendix, a very lengthy affidavit that describes the different kinds of options available and what their benefits are.

The benefit for a community school is, it is considered a public school.

There is some amount of accountability that might not be there with respect to a private school, but for a parent who's looking for an alternative to the public schools, that might be a good option for them.

Unidentified Justice: Is there a description of the precise community schools that are participating in the program, and the quality of education in those schools?

Mr. French: There is to the first part of your question, Your Honor, and that's in Mr. Puckett's affidavit, of just describing what the schools are, why we have them in Ohio.

It's a State-wide program.

It's not just for Cleveland.

It's actually a State-wide program that was implemented in 1997, and was specifically complemented by the district court in a desegregation order relating to Cleveland as an option for Cleveland parents.

Unidentified Justice: Is there information in the record available about the quality of the religiously affiliated schools?

Mr. French: There are a number of studies that have been done both in Cleveland and with respect to other scholarship programs, Your Honor.

I would point specifically to, again to Mr. Peterson's affidavit at 105 to 107 in the joint appendix.

Unidentified Justice: I mean about these particular schools in the program.

Mr. French: Yes, Your Honor, in general the scholarship program, not just specifically the religious schools, but the voucher, or the scholarship program as a whole, as to whether the students are showing academic achievement or, you know, significant results beyond that.

Yes, there are, but not specific, again, to the religious schools.

Unidentified Justice: Before we leave the community schools, when the State calculates the funding that goes to the community schools, it takes account of the number of students that go to the community schools, I take it?

Mr. French: Oh, yes, Your Honor.

Unidentified Justice: And there's a figure of something like $5,000--

Mr. French: Yes.

Unidentified Justice: --per student.

It's not quite that.

Mr. French: Right.

$4,500 to $5,000.

It's calculated on the basis of the normal State aid number that a public school would receive for educating a child and, again, it's a per capita kind of number.

Unidentified Justice: Does the same amount of money per capita go to a community school as would go to the regular public school?

Mr. French: Yes, Your Honor, approximately.

There's a slightly different amount, but it's approximately the same as the State aid number.

Unidentified Justice: May I ask you if this Court would have to overrule the Nyquist case to support your position?

It certainly points the other way, doesn't it?

Mr. French: It does point the other way, Your Honor, but we think that there are a number of distinctions which this Court has drawn between the programs at issue, say, in Mueller and Witters that distinguish it from the New York program at issue in Nyquist.

The New York program took a class of beneficiaries, that is, the students already within the private schools, and offered them a benefit.

The Ohio program approaches the problem very differently.

It approaches the problem from all of the schoolchildren in Ohio, or in the Cleveland Public School System, and offers them a benefit which--

Unidentified Justice: How does that change the legal concern about the Establishment Clause?

Mr. French: --Well, this Court has pointed to specifically footnote 38, where the Court reserved judgment in the Nyquist decision for programs that offered a benefit, the specific example was scholarships there, and offered to a broad base of beneficiaries without regard to the nonpublic or public or nonsectarian, sectarian nature of the institutions benefited, which is precisely what is happening here.

Unidentified Justice: Well, but doesn't that simply then go back to this neutrality point, and you're saying because it's neutral, in the sense that it's offered in an even-handed way, query... your friends on the other side dispute that, but just accepting that categorization, because it's neutral in that sense, that's a distinction which ought to make a difference in the result.

But as you agreed earlier, the neutrality that you're talking about is a necessary condition, but it's not a sufficient condition of constitutionality, and at the end of the day, I think what's bothering me about Nyquist and, I suspect, Justice O'Connor, too, is that Nyquist depended not merely on a question of neutrality, but on the effect, and at the end of the day, the effect is a massive amount of money into religious schools in Nyquist, a massive amount of money into religious schools here.

That, I think, is the sticking point here.

Mr. French: We, of course, disagree, Your Honor, that there is a massive amount going to religious schools as a result of something that the Government is doing.

It's true, it's very true--

Unidentified Justice: Well, your adding a term as a result of what the Government is doing, which is a separate issue as to what the significance is of the private choice, but the effect that Nyquist was concerned with, and the effect that I think has been shown here, is a substantial amount of money, aid to the schools themselves, in relation to the amount of money spent on the program, and in those respects the two are identical.

Mr. French: --Well, in that respect, Your Honor, there's no question that there is money that is ending up in religious institutions, because that's what the parents have chosen, but that nondiscrimination provision that I spoke of earlier did not exist in Nyquist.

The New York schools at issue in Nyquist could discriminate based on religion, and that, of course, means that the program, the New York program was not open to all-comers.

Unidentified Justice: Well, Miller also made the point, I think, that where the parents do the choosing, as they did not do in Nyquist, it was a different ball game.

Mr. French: Absolutely, Your Honor.

In Mueller, of course, the percentage of religious schools or the number of parents receiving benefit because they paid tuition to religious schools was 96 percent, and this Court has been very clear that where there is private choice, that percentage that changes from year to year is simply not relevant.

The wisdom of that rule--

Unidentified Justice: What is the closest of our cases, do you think, to the Ohio program?

Is it Witters?

Mr. French: --I would suggest Witters, Your Honor, because it's a financial aid going to, there it was a college student, but an adult, to make a decision about where to send the money.

Here, it's an adult parent making a decision about where to send the money on behalf of the child.

Unidentified Justice: What are you say--

--Here, the difference would be, however, that according to respondents the choices are much more limited here than in Witters.

Mr. French: That's true, Your Honor, but in Mueller the Court did address that concern, as Justice Powell said in his concurrence in Witters, that it didn't matter that there was only one person, Mr. Witters, using the money for seminary, for the Inland Empire School of the Bible, nor did it matter in Zobrest that there was only one child or one parent, set of parents for a child looking for an interpretive or religious school.

Mueller teachers that the percentage that changes from year to year is simply not relevant.

Unidentified Justice: I suppose part of the design of the program is to have a structure which will encourage over the long term more and different kinds of school choices, including, of course, the community schools.

Mr. French: Absolutely, Your Honor.

Unidentified Justice: May I ask you about your suggestion that in Nyquist, it's a difference when the parents do the choosing, but who chose where the children would go to school in Nyquist?

Did the parents make the decision?

Mr. French: The parents, of course, did, Your Honor.

Unidentified Justice: So it's the same case.

Mr. French: I disagree, Your Honor.

I think it's different in that we fall under the question that was reserved by the Court that there, because they didn't have the nondiscrimination provision, because of the purpose behind that Nyquist program was specifically to aid the private schools, that's very different from the Ohio program that's at issue here.

Your Honor, I'd like to reserve my remaining time.

Unidentified Justice: Very well, Ms. French.

Mr. Young, we'll hear from you.

ORAL ARGUMENT OF DAVID L. YOUNG ON BEHALF OF THE PRIVATE PETITIONERS

Mr. Young: Mr. Chief Justice, may it please the Court:

I'd like to start out by addressing the questions concerning Nyquist and the basis for distinction.

I would refer specifically to 463 U.S. page 398, and there this Court, when it distinguished... in Mueller, when it distinguished Nyquist said, in this respect, as well as others, this case is vitally different from the scheme struck down in Nyquist.

There, public assistance amounting to tuition grants was provided only to parents of children in nonpublic schools... pardon me... in nonpublic schools.

This fact had considerable bearing on our decision striking down the New York statute at issue, and then it goes on.

It talks about Allen and Everson.

So this Court made it very clear in Mueller that there was an important distinction between that and Nyquist.

Unidentified Justice: Does the money went to children... the money went to families with children in nonpublic schools, but that's exactly what's happening here.

Mr. Young: Your Honor, if--

Unidentified Justice: Aren't the vouchers just for people in the nonpublic schools?

Mr. Young: --Your Honor, it isn't exactly the same at all.

In Nyquist--

Unidentified Justice: Well, am I right that the vouchers are just for people in nonpublic schools?

Mr. Young: --In this case, no, Your Honor.

We have tutorial vouchers for people in public schools, and tutorial vouchers for magnet schools and community schools.

Unidentified Justice: Speaking of the tutorial vouchers, why is the number of tutorial vouchers limited to the same number of vouchers paid to the private schools?

Mr. Young: Well, I would... Your Honor, I would suspect the answer to that is to try to provide some form of equality and to make sure that there was no Government endorsement of one choice or another, so the equality of having the same number of grants for tutoring being the same as the same number going for scholarships.

Unidentified Justice: Of course, the amount of money is vastly different, isn't it, because the... I forget the figures exactly, but isn't the limit on the tutorial something like $350 a student, as opposed to the 2,000 some-odd dollar limit on the tuition vouchers?

Mr. Young: Your Honor, there is a difference, but there is less a difference than the difference between the public school and the nonpublic school deductions taken in Mueller.

Unidentified Justice: Well, you wouldn't limit it to the vouchers anyway, would you?

I mean, you would think that we'd have to look at the money that goes to the community schools--

Mr. Young: That is--

Unidentified Justice: --which does not go via vouchers, it goes directly to the schools, and it's a greater amount of money that goes to the private schools, isn't it?

Mr. Young: --Your Honor, I think the fact... there is no question that when this program was initially implemented, every single secular school in the district signed up to participate.

Additionally, two brand-new secular schools were established by reason of this program, the two HOPE schools.

They remained in the program until the Community School Act was adopted.

That, indeed, doubled the amount of money available to the families.

In other words, the maximum scholarship grant, $2,250, and... but if those same children elected to go to a community school, the State would pay for each child at least double the amount that it would pay if they selected the scholarship--

Unidentified Justice: So what is actually involved?

I'd like to hear what you say about the endorsement point that Justice Souter initially raised, and my thought is, I'll assume no discrimination, and I'll assume it's a fine program, but imagine you came from Europe or Africa, or a different place, and said, what do they do in the United States by way of educating their children, and you're told, well, $60 billion a year, $40 billion, or some very large amount of money is being spent by the Government to give children K through 12 what is basically a religiously oriented education taught by a parochial school.

Wouldn't you then say, in the United States of America, like France or like England, the Government of the United States endorses a religious education for young children by putting money up, massive amounts?

Now, I'm putting it that way to get your response, and that's the problem that bothers me most about the word, establishment.

Mr. Young: --Thank you, Your Honor.

There is no governmental endorsement of religion in this program, and there are several reasons why there isn't.

The first, Your Honor, reason would be the amount of money that is spent, first of all, on a public school education, which is approximately $8,000, the amount of money paid for a community secular education, $4,500, and the maximum amount provided to a family that selects a nonpublic school, $2,250.

So if... the first thing you look at is the amount of money that is spent depending on the nature of choice made by the child, and the preference, the... in that instance is clearly a preference for the secular schools.

Secondly, Your Honor, if you look at the history, as well as the context of this particular program, this program was adopted because of one of the most serious educational, public school crises in the United States, and I think anyone trying to determine what was the Government doing, was it endorsing religion, no.

The Government was trying to permit low income educationally disadvantaged children who were trapped in a failing system to exercise an alternate choice.

So I think any person... the Cleveland district has been in litigation, Your Honor, for some 20-plus years, in Federal court, because of the difficulties that have been encountered in the public school system.

I think anyone looking at this legislation as it was adopted and as it was implemented would conclude that there is certainly no Government endorsement of religion.

The Government was trying to resolve a problem of these disadvantaged low income children, and giving them alternate choices, which parents ought to have in any event so that's certainly another reason.

When no money flows, not a dollar flows to a religiously sponsored school under this program, but for the independent, private choice of a parent.

The State does not direct a dollar to a religiously sponsored school.

No--

Unidentified Justice: There's an irony, I... are you... is that--

Mr. Young: --I could go on, Your Honor, but--

Unidentified Justice: --No, if... I mean, the irony is that the better the parochial school, in a sense, the less the freedom of choice.

I mean, I... if it were my children and I saw these comparisons, I'd say, send them to the parochial school.

Would you like them to learn that religion, I'd say, frankly not, that's not my religion, but it's very important my child get the best education, and therefore I would be feeling I had to send them there, if that's what I want.

Mr. Young: --Your Honor--

Unidentified Justice: I mean, no one's complaining about the quality of the program.

It's this concern about the endorsement, and not even that that's what they intend, but that that's the effect.

Mr. Young: --For reasons I've already noted, Your Honor, I believe there is no governmental endorsement, and you have to realize that the overwhelming majority of the eligible children elected to remain in the public school, and incidentally there are--

Unidentified Justice: I assume Justice Breyer could send his child to one of the community schools, which is entirely nonsectarian, under this program, right?

Mr. Young: --Your Honor, that's another alternative, and I think we--

Unidentified Justice: Which schools would get more money than the sectarian schools anyway.

Mr. Young: --Your Honor, I see that as another reason why no one could say there's a reasonable message of governmental endorsement in this case.

Unidentified Justice: And you agree that the Sixth Circuit erred.

Was it legal error?

The Sixth Circuit said, we're not going to take account of the community schools because that's a whole other program.

This case was about the voucher program.

In the district court, what development was there about the community schools?

Mr. Young: Your Honor, the same approach was taken by Judge Oliver, but I don't feel that the Sixth Circuit really understood how the community school program worked, or how one could use the tutorial vouchers to help the children that elected to go to the community schools.

Unidentified Justice: Well, there's really no record on the community schools, you're saying, because you weren't permitted to make a record?

Mr. Young: Your Honor, there is an extensive record in affidavits in terms of the creation of the community schools, the transfer of the two secular scholarship schools to community school status.

The children who were enrolled as scholarship pupils in the scholarship secular schools just transferred when those schools became community schools, so this legislation clearly enabled the same children, the same low income, educationally disadvantaged children to elect a community school, so there is record evidence to that extent, Your Honor.

Why the Sixth Circuit refused to consider the community schools is beyond me.

The... I think in order to fully understand the choice issue, Your Honors, I think you have to really look into more detail into the tutorial grant program.

We haven't addressed at all the subject of the--

Unidentified Justice: Do we have to link the two programs together to resolve the case--

Mr. Young: --Your Honor, I believe not.

Unidentified Justice: --the tutorial program and the money paid to the parents and endorsed over to the schools in the case of choice?

Do we have to consider both together?

Mr. Young: Your Honor, I would consider them together, but it was... it's the, all of the indicia of choice, not just the endorsement.

Unidentified Justice: Thank you, Mr. Young.

General Olson, we'll hear from you.

ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Olson: Mr. Chief Justice, and may it please the Court:

I'd like to follow up on the point that was just being made.

This Court has taught repeatedly that the history, the context, and the purpose for programs like this are a very, very important part of the determination of what the endorsement test or the effects test would be.

There is no question that the purpose that inspired, and the history and the context that inspired the Ohio pilot program could not have been more compelling and more focused on the needs of children.

Unidentified Justice: No, but I would think you would say the program was still constitutional, even if it was just conceived in the healthiest school system in the world.

Mr. Olson: Well, perhaps, Justice Stevens, I might, but this... as this Court has taught repeatedly, the background history and the context informs the decision which this Court has endorsed with respect to what the effects or endorsement test would be, measured by what a reasonable, objective observer would believe the State or the Government was doing, is the Government endorsing religion, and that has to be considered in the context of what was going on.

Here we have a manifestly failing system in which... no one disagrees with that.

Efforts had been made, and a Federal court had decided the system had to be taken over.

Unidentified Justice: The thing that puzzles me about that argument is, why did they make this wonderful solution available to such a small percentage of the student body?

Mr. Olson: I would invite the Court's attention to page 41 of the Taylor petitioner's brief, which contains a chart which shows the various choices which were made available to the students as a result of the composite, the context of the program that we're considering.

It shows... that chart shows, along with the other statistics in the brief, that there are 57,000 students in the school system.

16,000 went to the magnet schools, 2,000-and-some are going into the community schools... these are present facts... 3,700 accepted scholarships to use in religiously affiliated schools, 1,400 accepted the tutorial program, and another 100-and-so took scholarships with respect to nonreligiously affiliated schools.

There were more nonreligiously affiliated schools available, but two of those, the major ones, decided to become community schools.

I would like to invite the Court's attention--

Unidentified Justice: Mr. Olson, I didn't quite understand Justice Stevens' question.

You acknowledge that it was made available only to a small number of the students?

Mr. Olson: --No.

I... what I meant--

Unidentified Justice: I thought the program was available to all the students.

Mr. Olson: --I stand corrected.

What I mean to say, the choices were... there was a broad range of choices, but the program itself was made available to all of the students.

Unidentified Justice: Any student could have gone into a... one of the community schools, or to one of the private schools, isn't that right?

Mr. Olson: That's correct, and the record is quite clear on this, also.

Any student who wanted to go to a nonreligiously affiliated private school, no student who wanted to do that was declined the opportunity to do that, so your child, Justice Breyer, could have gone to a nonreligiously affiliated school.

Unidentified Justice: Ah, but there doesn't seem to be a record on this very clear, that my impression was really the parochial schools are an awful lot better.

Mr. Olson: Well, I think that's an impression that you may have, but--

Unidentified Justice: So are we supposed to send the case back?

Does it turn on that?

Mr. Olson: --No, no.

There's no record evidence to support that.

Remember, this is a pilot program, an experimental program.

The best evidence may be found in the affidavit or declaration of Howard Fuller, who was the former superintendent of the Milwaukee system, who watched the Milwaukee system develop and get put into practice.

That's at the joint appendix pages 228 to 236.

During the period of time that the Milwaukee program has been in existence, the number of private, nonreligiously affiliated schools have increased from 7 to 30, the number of students in those private, nonreligiously affiliated schools has increased tenfold, from 337 to 3,025.

He also points out that the existence of the alternative has improved the public school systems as well.

Parents are involved in the choice of the educational opportunities for their children.

He demonstrates they get more involved in the school system.

Unidentified Justice: General Olson, if a private individual challenges a State law as unconstitutional, the burden of proof is on that individual, isn't it, to show the necessary facts to establish unconstitutionality?

Mr. Olson: Yes, Mr. Chief Justice, absolutely, but the record here goes even further than that, because the record that is available shows these many alternatives.

It shows that when the program has been allowed to exist free of constitutional objection, it has shown improvement at the student level, and improvement at the public school level as well as the private school level.

Let me emphasize that in response to the question Justice Souter raised at the very beginning of the argument, it isn't just neutrality, but there is clearly neutral criteria here for opting in or out of the program.

Another factor that the Court has thought was important in the past was, the parents have an option not to participate in the program, and that's a part of the optional choices that are available.

Unidentified Justice: I want to ask how the courts faced with this challenge have to view the case.

Must they view it as having the whole range of options available, public school, magnet, community, and religious schools?

Mr. Olson: Yes, Justice O'Connor, I believe that is the correct context.

Unidentified Justice: And why did the court below not do that?

Mr. Olson: I think the court made a legal error in failing to do so, because this Court has taught over and over again that the context is extremely important--

Unidentified Justice: Now, is it limited only to low income children, or does it just... does that affect the amount of money to be given?

Mr. Olson: --It affects both the amount of money to be given and the preference.

To the extent that there are any limitations on the program at all, the priorities are given to low income students on the theory--

Unidentified Justice: There's only a finite amount of money available.

Mr. Olson: --Well, that's always the case, of course--

Unidentified Justice: Right.

Mr. Olson: --in any Government program, but the priorities are given to the low income people.

The evidence that's in the record demonstrates that the vast majority of these scholarships are used by people at the poverty level.

The rationale for that, of course, was that people in the higher income level can afford the alternative.

Unidentified Justice: Now, there was no attempt in the program to make sure that the money that ends up in the parochial schools is not used for religious training, or teaching.

There have been other Federal programs, for example, where there have been such limitations on usage.

There's none of that here.

Mr. Olson: That's correct, Justice O'Connor, but the Court has made the point in connection with those types of programs that there's a significant difference between a direct aid program, where funds are going from the Government to the school, as opposed to the private, genuinely independent, purely private choice programs where the choices are being made by individual parents, and being made by individual parents motivated by the best education for their children.

So to go back to the reasonable observer test with respect to endorsement, would a reasonable observer believe that the Government's putting its thumb in favor of religion on the scales here under all of these circumstances, the wide range of choices--

Unidentified Justice: May I ask on that very question, do you think these alternatives are essential from a constitutional point of view, or would you make the same argument if there were merely the one choice, religious school or the private school?

Mr. Olson: --I think applying the standards this Court has adopted, that if the criteria are neutral... and I'm answering... I'm saying yes.

Unidentified Justice: The criteria is neutral.

You can either go to the public school, or you can go to the parochial school, and if you go to the parochial school, we'll pay the tuition.

Mr. Olson: Which we're also offer... yes.

Yes.

Unidentified Justice: I understand there's a lot more here, but what would you do with that case?

Mr. Olson: I think if there was a purely neutral criteria in terms of eligibility for the program, and it's a purely private choice, that the... because this Court has emphasized that we're looking at whether the Government's being... going to be perceived by a reasonable observer as endorsing religion, if it is a purely private choice program, the teaching of this Court is, it's not unlike a Government check that goes to an individual who then spends it, all of it on his church.

Unidentified Justice: My hypothesis is, it's purely private.

Either I'll go to the parochial school or the public school, and the Government doesn't care which one.

Mr. Olson: It's purely neutral--

Unidentified Justice: And you would say that's perfectly all right.

Mr. Olson: --Well, I would probably be making that argument in another case.

I don't have to make that argument here, because we have all of these other alternatives, including private schools.

Unidentified Justice: But I'm trying to decide whether those alternatives are constitutionally necessary, or just make your argument stronger.

Mr. Olson: Well, I think that what this Court has taught, that because these establishment Clause cases are so difficult, that they are made in the context of the particular facts of the case, and that the facts and circumstances in history illuminate what the Government was involved in, because we're not talking about--

Unidentified Justice: Why don't we... why don't you... well, I know why you don't stress, but why shouldn't we stress as one of those facts the bottom line of 96 percent of the kids taking the tuition aid, or taking it in parochial schools?

Mr. Olson: --Well--

Unidentified Justice: And doesn't that suggest that there is perhaps something specious about this notion that it's a matter of wide-open choice here?

In practical terms, the money is going to end up where it ends up, and the 96-percent figure is pretty persuasive.

Mr. Olson: --That was the same factor in the Mueller case, and one of the other cases that has been cited, the Court said that is not of constitutional significance.

We're not going to--

Unidentified Justice: Oh, I'm asking you a question about practical significance, and why do we eliminate that fact from our judgment about what in the real world seems to be going on?

Mr. Olson: --Because those choices this Court has said are the result of purely private choices, and that that will not be associated by a reasonable observer with a governmental decision.

Unidentified Justice: Thank you, General Olson.

Mr. Chanin, we'll hear from you.

ORAL ARGUMENT OF ROBERT H. CHANIN ON BEHALF OF THE RESPONDENTS SIMMONS-HARRIS, ET AL.

Mr. Chanin: Mr. Chief Justice, and may it please the Court:

Under the Cleveland voucher program, millions of dollars of unrestricted public funds are transferred each year from the State Treasury into the general coffers of sectarian private schools and the money is used by those schools to provide an educational program in which the sectarian and the secular are interwoven.

It is a given that, if those funds are properly attributable to the State, the program violates the Establishment Clause.

We submit that the answer to that attribution question is yes, and it is yes because, regardless of the decision that individual parents may make, it is inevitable, it is a mathematical certainty that almost all of the students will end up going to religious schools that provide a religious education--

Unidentified Justice: Well, Mr. Chanin, wait just a minute.

A couple of things.

Do we not have to look at all of the choices open to the students, the community schools, the magnet schools, et cetera?

How is it that we can look only at the ones looking to the religious schools?

Mr. Chanin: --The limitation to looking at the voucher program as a freestanding program is consistent both with the precedents of this Court and with absolute logic, Your Honor.

Unidentified Justice: I don't understand either point, to tell you the truth.

I mean, if you want to look at what the parents' choices are, do you not have to look in reality at the whole program, then it isn't a 96-percent thing?

Mr. Chanin: Your Honor, this Court has always been program-specific in its financial aid cases.

In Nyquist, the Court looked at three separate programs under the one statute, viewed them all in independent terms, and viewed them all independently of whatever else was going on in the New York City Public Schools and New York State.

Unidentified Justice: But I'm not sure that's proper.

That's what I'm asking you.

Why should we not look at all of the options open to the parents in having their children educated?

Mr. Chanin: Because what that does, Your Honor, is, it mixes together programs that are quite qualitatively different in both function and purpose.

The magnet schools, the charter schools, the tutorial program, those are all ways in which the State is attempting to discharge its basic legal obligation to provide a public education for all of its students.

Unidentified Justice: But the question is whether or not--

Mr. Chanin: All of the parents are entitled--

Unidentified Justice: --The question is whether or not there is neutrality in this program, and it seems to me that if you ask us to put on blinders, and not inquire as to what's really happening in Cincinnati, what really was the reason for this, what all of the choices are, that you're asking us to make a decision based on an a fictional premise.

Mr. Chanin: --Your Honor, I think we're doing precisely the reverse.

We are asking you to look at the reality.

What the State of Ohio has set up here--

Unidentified Justice: You're asking us to look at part of a reality.

Mr. Chanin: --No, Your Honor.

We're asking you to look at a special benefit that the State of Ohio is making available to a selected group of parents over and above the benefit that they have, along with all other parents, to send their children to a public school.

That benefit is a qualitatively different benefit to take my child out of a public school and put my child into a private school and be educated with public money.

Unidentified Justice: You don't have any problem with that.

You say it would be perfectly okay if it went to a private school.

It's only the portion of it that goes to a private school that is religiously affiliated that you object to, isn't that right?

Mr. Chanin: No.

What I am saying--

Unidentified Justice: Oh, this money could not even go to nonsectarian private schools?

Mr. Chanin: --Pardon me, Your Honor?

Unidentified Justice: This money could not, in your view, even go to nonsectarian private schools?

Mr. Chanin: Yes, it could, Your Honor.

Unidentified Justice: It could, and that would be a rational way for the State to provide for the education of children--

Mr. Chanin: It would be a constitutional right.

Unidentified Justice: --some in publicly run schools and some in private schools, but if any of those private schools is a religiously affiliated school, that is a no-no.

Mr. Chanin: No.

Unidentified Justice: --and that, in your view, is neutrality?

Mr. Chanin: No, Your Honor, that is not my position.

We are not saying, if any of those schools are sectarian it is a no-no, or the program fails.

We are saying, if you take a program which is designed to give parents the option to go out of the public schools and educate their children in a private school, and then you say to 99 out of 100 of those parents, if you choose that option, you must send your child to get a religious education, that is not--

Unidentified Justice: Well, the percentage in Mueller was 96 percent.

Mr. Chanin: --I believe, Your Honor, that this Court, this case is not controlled by Mueller, for the very same reason that Mueller was not controlled by Nyquist.

The Court distinguished a Nyquist-type program in Mueller on three grounds, all of which are equally applicable here.

The Court--

Unidentified Justice: The State does not say here, as you put it, that you must go to these religiously affiliated schools.

What you're saying is, they happen to be the schools that are currently up and running.

In fact, originally in this system it wasn't... what is it, 96 percent you say?

Originally it was something much lower, something like 62 percent, except that two of the schools, two of the largest nonsectarian private schools, decided to be come community schools, so originally it was a much different percentage.

Are we supposed to examine this program year by year to see what the percentage is?

Mr. Chanin: --No, Your Honor.

What we would like the Court to do is take the language of this program and look at it, not simply on its face, but in the empirical context in which it will operate.

Let me give you the percentages, if I may, just to track what you have done.

This started out in 1996 with 80 percent of the schools being sectarian and 80 percent of the students going to those schools.

By 1999, 2000, the universe had become even more skewed toward the religious.

It was 82 percent of the schools and 96 percent of the students.

Unidentified Justice: But isn't that because some of the private schools had become community schools, and is it not true that parents can choose to have their children educated in a community school and, if they do, that school gets more money from the State than if they had chosen the religious school?

If anything, it's skewed against the religious schools--

Mr. Chanin: Your Honor--

Unidentified Justice: --in terms of public support.

Mr. Chanin: --I think there are two parts to your question, if I may take them in sequence.

The first is, why is the universe moving in the direction it is, and just, if I may, to complete the point, we now have this year 99.4 percent of the students in that program going to religious schools.

Unidentified Justice: So far, you're doing a very good job of not answering Justice O'Connor's question.

[Laughter]

Mr. Chanin: Well, the answer to it is this, Justice Kennedy.

From our perspective, it is not determinative why the universe is the way it is.

From the point of view of the--

Unidentified Justice: Well, but now, wait a minute.

Why do you not put the community schools and the magnet schools in the universe of choices?

That's the problem I'm having with your argument.

You say the figures are skewed, but they're skewed only because you will not look at those choices.

Why?

Mr. Chanin: --We do not look at them for two reasons, Your Honor.

One is that the Court in Nyquist explained why it did not go beyond the program itself.

It said this.

If you extend the... if you look at the choices that parents have to go to public schools as well as the vouchers in the private schools, you allow, through the tuition grant program, to do precisely what the Establishment Clause prohibits, which is to use tuition grants to pay totally for private, sectarian religious education, the Court said.

It's a back-door approach to do precisely what the Establishment Clause prohibits.

Secondly, people talked a moment ago about perception, and I think they're completely mistaken.

This is the perception.

The reasonable observer does not look at public education and the multiple, changing, various programs that are offered.

The person looks at this.

The State of Ohio has set up a special, well-publicized program which allows a certain number of students to escape from a troubled school district, and appropriates a pot of money into that program, and what the reasonable observer sees is, that program and that pot of money ends up 99.4 percent giving children a religious education.

Unidentified Justice: Mr. Chanin, that's only true if you say the person is reasonable in not looking at all the choices, which include community schools, certainly.

Mr. Chanin: Your Honor--

Unidentified Justice: And probably magnet--

Mr. Chanin: --Your Honor, if it extends that way, there is no meaning any more to the concept of genuinely independent and private choice.

We don't need magnet schools.

We don't need community schools.

We should just say, you people have 57,000 options.

You can stay in the Cleveland public schools, or you can leave that school district, take public money, and go get a religious education.

The magnet schools, the community schools, they're not unique.

They're part of the way in which a State provides a public education.

There are small classes and large classes.

There's distance education, and face-to-face education.

Magnet schools have been around for 50 years.

Unidentified Justice: --But suddenly it changes, and it's not education any more if you're getting it in a religious school.

Why is that?

Mr. Chanin: We're not saying it's not--

Unidentified Justice: Unless there's an endorsement of religion involved here, I don't see why the fact that some of the money, even most of the money goes to religious schools makes any difference.

Mr. Chanin: --Well, because you have a basic proposition that we build our case on, which the Court has adopted, and it is this.

If public money that is reasonably attributable to the State is used to pay for a religious education, it violates the Constitution.

The only way in which it's not attributable to the State is if it doesn't go there by virtue of a State action or a State decision, but the circuit is broken, and the circuit is broken because in between, standing between the State and standing between the schools, is an independent party with decisionmaking to divert it away.

There is no intervening party with decisionmaking here.

The parents play a ritualistic role in the transmission process, and if I am a parent, and I am holding a voucher in my hand, I can say, where can I use it, and 99 of my 100 choices is, send my child to a religious school.

Unidentified Justice: Well, suppose it weren't that number.

I mean, our decision, I take it, would have to govern lots of programs in lots of school districts, and suppose that a particular program in a particular school district was set up for the best possible reason, educate the children, and there's no other way, and suppose, too, that you would have very, very good parochial schools, and also some very, very good private schools, and let's suppose the numbers were several hundred million dollars, and so parents getting the money, about half of them sent them to parochial schools and about half of them sent them to private schools.

Now, suddenly, does the constitutional balance change?

Mr. Chanin: Not in my mind, Your Honor.

Unidentified Justice: And so all this 99 percent doesn't make that much difference.

Why not?

Mr. Chanin: It... I focus on it because it makes it clear to the Court, I hope, that this isn't even a close-to-the-line case.

This is so far to the polar end of the continuum that even if the Court may, in particular cases, have to make judgments on the specific facts, this is not one of those cases.

Unidentified Justice: All right, so what is your response if it's 50-50, and you have hundreds of millions of dollars, and--

Mr. Chanin: My response is--

Unidentified Justice: --what they're saying, remember, is private--

Mr. Chanin: --My response is it's unconstitutional.

Unidentified Justice: --Because?

Your response--

Mr. Chanin: Because of the criteria that this Court used in Witters.

What the Court used in Witters, it didn't just say the program is constitutional in Witters.

It told us why it was constitutional.

It said, it's constitutional because the aid recipients have generally independent and private choice, and then the Court went on to say what that meant.

It said, Witters could choose from a huge variety of options, most of which were secular.

It said that only a... an insignificant portion of the total program money will end up going to sectarian schools.

Those were the criteria.

It seems to me there may be a case, a different case, in which the Court will have to determine what do the words, substantial portion, significant amount, huge array of choices mean, but the Court does that all the time.

It's the normal line-drawing.

Unidentified Justice: --No, but let me sure I understand--

Mr. Chanin: This is not a line-drawing case.

Unidentified Justice: --Let me just be sure I understand your position.

Supposing there are 10 schools out there, 10 private schools, nine of which are nonreligious, and one of which is religious, but the Government money will pay the tuition of the... for the parents who choose the religious school.

Is that, in your view, consistent with the Establishment Clause or not.

Mr. Chanin: Oh, that's clearly unconstitutional, Your Honor.

Unidentified Justice: So even if it's 10 percent.

Mr. Chanin: Oh, no.

That... I'm only... I'm responding to I think--

Unidentified Justice: So we've got two extreme--

Mr. Chanin: --Justice Breyer put to me was, there's a choice--

Unidentified Justice: --See, the interesting thing, if I understand the case correctly, your view is, if any one school gets the money, it's unconstitutional.

Mr. Chanin: --No.

No, Your Honor.

Unidentified Justice: Oh, I thought you said yes.

Mr. Chanin: No.

I'm sorry if I... I did not.

Or, I may have, but I didn't mean to.

[Laughter]

Unidentified Justice: Well, what is your answer if there are 10 schools, nine nonsectarian, one sectarian?

Mr. Chanin: I think that is a borderline case, but if it's structured this way, I'm a parent--

Unidentified Justice: Well, say there are 100, and 99 nonsectarian and one--

[Laughter]

Give us something that isn't borderline.

Well, I'm really trying to find out what your position is.

Mr. Chanin: --I think I can explain it relatively simply.

If Government money that is attributable to the Government is paid directly to a religious school to pay for a religious education--

Unidentified Justice: Well, my hypothetical--

Mr. Chanin: --it's unconstitutional.

Unidentified Justice: --is that in this... and the Government says... you pick your school.

There are 100 of them out there.

One of you picks a parochial school, we'll pay the tuition.

Mr. Chanin: Okay.

Unidentified Justice: We'll send a check direct to the school.

Mr. Chanin: All right.

Unidentified Justice: That's unconstitutional?

Mr. Chanin: But do I also--

Unidentified Justice: And your opponent says it's constitutional if 100 percent, so--

Mr. Chanin: --But I have to know the choice you're giving me as an aid recipient.

Are you saying to me, I can use that money at this one religious school, or at the other 99?

Unidentified Justice: --No, I want to use that money at that one... my private choice is to have my child go the sectarian school.

Mr. Chanin: Absolutely violates the Establishment Clause, in my opinion.

Unidentified Justice: Why?

Mr. Chanin: Because certainly I can say, without hesitation, nothing broke the circuit between the State and the general coffer of the sectarian school, your aid recipient in your hypothetical had no choice whatsoever.

The only choice was to stay in the public schools or go into a religious school.

That is not the kind of choice that this Court referred to in Witters or in Nyquist.

Unidentified Justice: Well, what if, in Justice Stevens' hypothetical, the State would pay the tuition to the nonsectarian private schools, too?

Mr. Chanin: Oh, I think that's Witters.

Unidentified Justice: What breaks the circuit in my 50-50 case?

You say it doesn't break the circuit, but they're saying, well... the petitioners say, we gave the money to the individuals.

It was the individuals who decided, and they had an equal choice between church-related schools and private ones, other ones, and so that broke the circuit.

Now, your response to that is what?

Mr. Chanin: My response to that is, if this Court concluded that the words, significant amount, huge array of choices, if the Court concluded, as an abstract proposition, that those standards were met on 50-50, I would be most unhappy, but I would conclude that the program was constitutional.

Unidentified Justice: No, no, but give me... not the case, but give me the rationale.

Mr. Chanin: The rationale is this.

We need to break the circuit.

The only case--

Unidentified Justice: They say it does.

Now, forgetting the cases, they say it does, so why doesn't it?

Mr. Chanin: --Well, I would not forget the cases.

I'd say, I don't accept what they tell me.

I want to hear what you've said, and I would say the one case in which you allowed financial aid to go to pay the tuitions of a religious school was Witters, and then I'd say to myself, why did you do it in Witters, and words would pop out to me, huge array of options, only an insignificant portion would end up in sectarian schools.

That, said the Court, is genuine, independent private choice, because of the numbers.

Unidentified Justice: Well, let me ask you this.

Suppose the program were, if the parent chooses the sectarian school, we'll give you a voucher of $2,500.

If the parent chooses the community school, we'll give you a voucher of $4,500?

Mr. Chanin: Your Honor, it's an unreal hypothetical.

Unidentified Justice: Well, it's not, because in effect that's what's happened here.

Mr. Chanin: No, it isn't because the... everybody--

Unidentified Justice: The community school gets $4,500 a head, and parochial school $2,500, so if it were done by a little voucher working that way, then what is your answer?

Mr. Chanin: --It would be no... it would be un... a violation of the Constitution.

Unidentified Justice: Would it?

Mr. Chanin: And it would be because--

Unidentified Justice: It wouldn't be perceived as--

Mr. Chanin: --I think it would, Your Honor.

That is no different than saying--

Unidentified Justice: --giving undue help, or endorsing the religious school.

Mr. Chanin: --It's no different than saying, you can take a voucher, you can leave public education and go to a religious school, or you don't limit it to community schools, or, I'll give you money to go to a community school, I'll give you money to go to a magnet school, I'll give you money to go to a traditional school.

The choice that you are positing for me is, the choice is between staying in the public schools with whatever the public schools may offer--

Unidentified Justice: Well, we haven't been--

Mr. Chanin: --or leaving to go into private school.

Unidentified Justice: --We haven't been referring to community schools as public schools.

The public school system that failed was the traditional old public school system in the community.

The community schools are basically private schools that are getting a different kind of State aid.

Why shouldn't they be considered?

Mr. Chanin: They are not private schools, Your Honor.

They are public schools.

They are subject to Government control.

They are just a method or a mechanism by which the State has chosen to provide a species of public education.

There is a bright line distinction between the public school system in which the community schools fit, and private education in which the voucher parents can take their money.

It is simply--

Unidentified Justice: Do these community schools have to accept all-comers?

Mr. Chanin: --There are certain... they cannot discriminate on certain bases.

There are a lot of--

Unidentified Justice: Right, but can they say, we're only going to take kids who pass a certain test, a certain entry exam?

Mr. Chanin: --I'm not sure you can base it on academic achievement.

Unidentified Justice: It doesn't sound much like the public school system to me.

Mr. Chanin: Pardon me?

Unidentified Justice: It doesn't sound much like the public school system to me.

Mr. Chanin: Well, it is, Your Honor.

Magnet schools do that.

Unidentified Justice: Well, but why is there the bright line that you talk about which separates community schools from private schools and aligns them with... other than the fact that they're run by the Government?

Here, the community schools, as I understand it, were set up because they wanted to get away from the kind of failing system that so many public schools are, and do something different.

Mr. Chanin: Because, Your Honor, if the concept of breaking the circuit is going to have any meaning, you have to draw a line, and the only rational line to draw is between public education and private eduction.

Unidentified Justice: Well, but you've said that time and again--

Mr. Chanin: I--

Unidentified Justice: --but you can tell members of the Court are--

Mr. Chanin: --I say it because--

Unidentified Justice: --Well, I--

Mr. Chanin: --I didn't mean to interrupt you, Your Honor.

Unidentified Justice: --You'd better not.

[Laughter]

Mr. Chanin: Is it too late?

Unidentified Justice: You can see a number of members of the Court are really not satisfied--

Mr. Chanin: No.

Unidentified Justice: --with that explanation.

May I ask this question, is it true that the group you put on one side of the line, there's no tuition in those?

Mr. Chanin: There is no tuition.

Unidentified Justice: So those are all free schools, supported... where the others, there's tuition.

That's the line, isn't it?

Mr. Chanin: Can I... could I try once again on another--

Unidentified Justice: By all means.

Mr. Chanin: --example here?

The prototype that this Court has set out for us of genuine, independent, and private choice, is a Government employee.

The Government can pay that employee the paycheck, and that... even knowing that the employee intends to donate all or part of it to a church, all, with no constitutional problem, because the employee has independent discretion.

He can spend that paycheck any way he wants, for whatever purpose he wants, with no control or direction from the Government.

Now, you use that as your analogy of genuine and independent choice.

You don't say that Government employee has independent choice--

Unidentified Justice: Mr. Chanin--

Mr. Chanin: --because he didn't have to come work for the Government in the first place.

Unidentified Justice: --Mr. Chanin--

Mr. Chanin: He had all kinds of options.

He could have worked everywhere else.

Unidentified Justice: --Mr. Chanin, may I ask you a question, because I think we understand the case of the Government employee turning over his paycheck to the Salvation Army, or whatever.

Suppose the suburban schools had been included in this mix, that instead of saying, come in if you want, and then the reality is that none of them do, suppose all those school districts surrounding the city were made to be part of the program, and the parents had the choice of sending their children to those public schools, or to the religious private schools, would you then say that... would it make any difference, that is, if the public schools in the suburban communities were made to participate in this program?

Mr. Chanin: It would make a difference, but I could not answer as to whether it would be constitutional or unconstitutional as far as the program is concerned, until I saw the specifics of that program, are those public schools a really meaningful type of choice for an inner city child in Cleveland, and I'd also have to make a legal analysis of whether that really is just another way in which the State of Ohio is providing a public education.

Unidentified Justice: Mr. Chanin, can you tell me how we get from here to there?

Here we have a failed inner city school system, and the State says, part of the problem with this is monopoly.

We just have to provide diversity, let parents choose a good education.

Now, it so happens that the only up-and-running schools that happen to be in the inner city are religious schools, educating the poor people in the city at relatively low rates.

The State of Ohio adopts a program which allows suburban schools to accept these inner city kids, but the suburban schools say, oh, heck no, we don't want the inner city kids come into our suburban schools.

How does one get from here to there?

The only schools that happen to be there right now are religious schools.

This doesn't mean that the program will always be that way.

The experience in Milwaukee was that as the program continued, there were more and more nonreligious private schools, but right now, to start off with, of course they're mostly religious, and that is going to destroy the entire program, so that we can never get from here to there.

Mr. Chanin: I do not believe, Your Honor, that a crisis in the Cleveland public schools is a license to ignore the mandate of the Establishment Clause, nor do I think it's a mandate to say, ignore it for a while because in a few years it may--

Unidentified Justice: Tell us how to get from here to there.

Mr. Chanin: --I will tell you, Your Honor--

Unidentified Justice: What do you do, abolish all the religious--

Mr. Chanin: --No.

Unidentified Justice: --schools in the inner city--

Mr. Chanin: No.

No.

Unidentified Justice: --and then start from scratch--

Mr. Chanin: I'll tell you just what it should do.

Unidentified Justice: --so that all the schools that start up won't be religious?

Mr. Chanin: What the State of Ohio should do in this specific case is exactly what the Ohio supreme court's been telling them to do for 10 years to deal with the problems in Cleveland.

It's telling them, there are innovative programs within the public schools, refinance your schools, provide resources, and do that.

Instead--

Unidentified Justice: They've spent already $7,000 per child, which is above the average in the rest of the country.

It isn't a money problem.

Mr. Chanin: --The--

Unidentified Justice: It's a monopoly problem.

Mr. Chanin: --No, Your Honor, not according to the Ohio supreme court.

According to the Ohio supreme court, which just struck down as inadequate the financing structure of the Ohio school system and has been directing it for 10 years to restructure it and put in more remedial classes, smaller classes, free kindergarten classes--

Unidentified Justice: Mr. Chanin, it's very clear to me that Ohio had that option.

The question is, is it unconstitutional for them to choose an option that they think has more likelihood of success, and Justice Scalia put the point that what they're trying to do is have a structure in which different school systems, different curriculums, curriculums that do not inflict terminal boredom on students, can begin to flourish, and the question is, how can they do that in the long term, and you say they cannot do it.

Mr. Chanin: --No, I say this, Your Honor.

I say that the Ohio legislature has the right to make an educationally unsound judgment.

It does not have the right to make an unconstitutional judgment.

It must solve the problems in Cleveland within the parameters of the Establishment Clause, and as the brief that... the amicus brief filed by the National School Boards Association indicates, there are numerous programs that were available to it.

There are problems being solved in urban school districts all over the country without voucher program.

We have not said much about the educational value vel non of voucher programs, because we don't think that this is a forum for an educational policy debate, but they are a lousy option, and we refer you to the amicus brief of the National School Boards Association.

The evidence is conflicting.

There is no evidence that competition improves the lot for the 96 percent of the students who remain in the troubled Cleveland Public School System with less resources and even worse problems.

If there are no further questions, thank you, Your Honor.

Unidentified Justice: Thank you, Mr. Chanin.

Mr. Frankel, we'll hear from you.

ORAL ARGUMENT OF MARVIN E. FRANKEL ON BEHALF OF THE RESPONDENTS GATTON, ET AL.

Mr. Frankel: Mr. Chief Justice, and may it please the Court:

Coming in at this point, I come in in a way toward the beginning and also toward the end of Mr. Chanin's argument.

The discussion of this problem long ago began with talk of a crisis in the public schools of Ohio, and that talk in a strange way has gotten lost in the shuffle as the Court has ranged widely, necessarily but widely, over Establishment Clause questions for which I am now about to submit this may be a strangely incongruous vehicle for a decision.

As was just pointed out toward the end of what Mr. Chanin was saying, you had a determination sometime ago by the supreme court of the State of Ohio that its system of public school financing is unconstitutional under Ohio's own constitution.

Now, we in our submissions early felt that that was an important threshold question to be looking at, very possibly before you got into big, Federal constitutional questions, and so we have briefed it.

We briefed it in the Sixth Circuit, and we briefed it in this Court.

Somewhat remarkably, that question of whether Ohio's school financing system is unconstitutional under its own constitution--

Unidentified Justice: But Judge Frankel, wasn't that on the ground that it used the single subject title, rather than--

Mr. Frankel: --No, Your Honor, it had nothing to do with that case.

That was a quite separate case called DeRolf, which was decided in 1997.

Under that decision, ever since 1997, Ohio's system of financing its public schools has a) been unconstitutional as a matter of Ohio constitutional law and b) under ongoing repair, which is in progress this very day, and is approaching completion of repair.

Unidentified Justice: --Judge Frankel, you are going to tie this in to the question presented in this case?

Mr. Frankel: I hope so, Your Honor.

Unidentified Justice: That was a program designed to rescue economically--

Mr. Frankel: I hope so, Your Honor--

Unidentified Justice: --All right.

Mr. Frankel: --for this reason, because I want to raise a question whether this Court doesn't reach hard questions first is present here, whether the much-debated Establishment Clause questions are as essential as the Court has been led to believe they are in this case, and whether a decision leaving the Establishment Clause jurisprudence where we think it should stay will be an appropriate resolution for the interests of Ohio and its poor children.

Unidentified Justice: Your assumption, Judge Frankel, is that the problem is a problem of money.

That's all that the supreme court of Ohio--

Mr. Frankel: Is what, Your Honor?

Unidentified Justice: --Is a problem of money--

Mr. Frankel: Not only--

Unidentified Justice: --and the studies that I'm familiar with suggest that that is not the case.

Mr. Frankel: --Whatever people suggest--

Unidentified Justice: Please let me finish, sir.

Mr. Frankel: --I'm sorry.

Unidentified Justice: The studies that I'm familiar with say that the inner city parochial schools, which spend much less per child on education, do a much better job than the public schools that spend much more, so I just don't think it follows that once you solve a constitutional problem that will get more money, you're going to solve the difficulty that the people of Cleveland found with their public schools.

I don't think that necessarily follows.

Mr. Frankel: Your Honor, there is mostly anecdotal material comparing the kind of job that's done in parochial and secular schools.

Unidentified Justice: Oh, I don't think it's anecdotal at all.

I mean, there are extensive studies that show that parochial schools do a better job.

Mr. Frankel: With all--

Unidentified Justice: I mean, these are studies by, you know, educational scholars.

Mr. Frankel: --With deference, Your Honor, I don't think that the difficulties that I'm trying to suggest about the Court's getting into the details of some of the Establishment Clause cases that have been mooted here are avoided by looking what is said to be a comparison between parochial schools and public schools.

Certainly, as you compare the subject of affluence from district to district, which was the guts of the Ohio decision that I refer to, the problem of comparative qualities changes quite markedly, and you don't have the same kind of problem.

In fact, what you have in Ohio, and a basis for the holding of unconstitutionality, is vast regional disparities between the public schools in affluent districts and the public schools in impoverished districts.

Unidentified Justice: Mr. Frankel, did you make this argument to the court of appeals?

Mr. Frankel: Yes, Your Honor.

We raised--

Unidentified Justice: And how did they deal with it?

Mr. Frankel: --Well, Your Honor, it sort of slipped by--

[Laughter]

--but we made a point that... let me put it this way.

I think in fairness to me and the court of appeals, arguments undergo some sea changes as you go from court to court.

We raised this 1997 decision, DeRolf, as a threshold problem that ought to be looked at before you got into wide Establishment Clause questions.

On the Establishment Clause, I should add we are as one with our friends here.

Unidentified Justice: Did you cross-petition for certiorari in this case?

Mr. Frankel: No, Your Honor, we didn't think we had any occasion to do that.

Unidentified Justice: You brought the lawsuit, though.

You brought the lawsuit.

Mr. Frankel: We won the lawsuit.

Unidentified Justice: Yes.

Mr. Frankel: And we didn't believe... I still don't believe we had occasion to do that.

Now, what's happened--

Unidentified Justice: Mr. Frankel, may I ask you, has the... have the Ohio courts ever passed upon this question?

I know they passed on the single statement issue under the Constitution.

Was that issue before the Ohio courts when they passed on the single issue matter?

Mr. Frankel: --The Ohio supreme court, Your Honor, in what we consider obiter, said it found consistency with the Establishment Clause, but it had already held its statute unconstitutional on State grounds, so we never could reach that.

That's why we came to the Federal court.

Now... so we've never had that question adjudicated.

Unidentified Justice: But the fact that it issued the obiter indicated that it was not concerned with the point that you're now making, and that's the highest court of the State.

Mr. Frankel: It was not concerned with... I didn't hear Your Honor.

Unidentified Justice: With the point that you're now addressing to us.

Mr. Frankel: No, Your Honor, it didn't take proper concern of everything that we thought it should have looked at.

What I am saying is that in the midst of Ohio's efforts, which are almost completed, to resolve whether Mr. Justice Scalia has the answer or not, the great core problem of public education in Ohio, in the midst of that, they come slicing across this situation, having held their own system unconstitutional in 1997, and they create this voucher program.

Well, there we are.

We're served up with a voucher program, so we look at it, and looking at it, we have argued, and Mr. Chanin has sufficiently covered that, that it is unconstitutional, and we think their effort to defend it is somewhat slap-dash, especially, for example, when they try to defend proselytization in a few hasty paragraphs, overturning 50 years of precedent, as they would hope, and saying proselytization with Government money is okay, where we say that the law since 1948 has been to the contrary, and that's because this voucher program came in, as it were, by the ears, while they were busy working on other, more fundamental things that may well... and I don't know, Mr. Justice Scalia, and I don't think any of us knows that may well go far to solving--

Unidentified Justice: Thank you, Mr. Frankel.

Mr. Frankel: --Thank you, Your Honor.

Unidentified Justice: Ms. French, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JUDITH L. FRENCH ON BEHALF OF THE STATE PETITIONERS

Mr. French: Thank you, Mr. Chief Justice, I have four points.

First and foremost, the Ohio supreme court upheld the constitutionality of this program under the Establishment Clause, and approved its use as one solution for solving the problem in Cleveland and for any school district that might find itself in a similar unfortunate situation.

Second, it appears that respondents have either ignored or do not accept the last 20 years or so of this Court's jurisprudence.

Each of the legal principles they have raised here today and in their briefs have been expressly rejected by the Court.

Their reliance on percentages was expressly rejected by this Court in Mueller.

Their arguments about substantiality of the aid going to religious schools was rejected by five members of the Witters Court.

Their question about indoctrination, or proselytization, has been specifically rejected by this Court in the cases involving true private choice, Mueller, Witters, Zobrest, and confirmed again in Agostini and Mitchell most recently.

Third, and Your Honor, I believe this goes to your question, Justice Breyer, and your concerns, Justice O'Connor, about the breadth of options that are offered to all Cleveland students, the State of Ohio has looked to every conceivable educational option available, to include all Cleveland students, to include all-comers in terms of students and schools.

Unidentified Justice: Are community schools public schools in Ohio?

Mr. French: They are considered public schools, Your Honor.

Unidentified Justice: They have separate boards?

Mr. French: They do.

Unidentified Justice: Separate employees?

Mr. French: They do.

They do have separate employees.

Unidentified Justice: And not the same control over content of programs?

Mr. French: That's right, Your Honor.

It is separately, it's not--

Unidentified Justice: It's publicly financed?

Mr. French: --Yes, Your Honor, and it does have the same sorts of financial requirements.

They get audited a little differently.

There are more controls, but it is slightly different, because it's not--

Unidentified Justice: They charge tuition, though?

They charge--

Mr. French: --Community schools do not charge tuition, Your Honor.

Unidentified Justice: --Do not charge tuition?

Mr. French: And in answer to your question earlier to Mr. Chanin, it's open to all-comers.

If they have... if they don't have enough spaces available for all who have applied, they must accept students on a lottery system the way that a public school would have to accept all-comers.

The scholarship program, though, among all of this array of options, is really the poor relative.

They get less money, parents have to pay tuition, and they get no tutorial grants.

Perhaps the best way to describe the array of options is that at the eye-level of parents.

This Court has said it is important in Rosenberger and again in Justice Powell's concurrence in Witters, that it is important to view all of the circumstances, view all of the consequences as a whole.

What respondents seem to want us to do is exclude the religious schools as an option.

This Court on many occasions has told us that we can neither inhibit nor advance religion, and that would certainly be the cause there.

Finally, it is apparent from the Court's questions and respondents' arguments that the Ohio general assembly had a number of competing and conflicting considerations before it in the face of and in an environment of an educational crisis it needed to solve, and to solve quickly.

It seems that Ohio did it right.

It didn't take too much money away from the public schools, but gave enough for a limited program that is targeted to the most needy, the poorest of the poor, the low income students who would not otherwise have choice.

It is for that reason that we ask the Court to overturn the decision of the Sixth Circuit and uphold this program.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. French.

The case is submitted.