Ohio Ass'n of Independent Schools v. Goff

Decision Date25 September 1996
Docket NumberNo. 96-3116,96-3116
Citation92 F.3d 419
Parties111 Ed. Law Rep. 734 OHIO ASSOCIATION OF INDEPENDENT SCHOOLS, et al., Plaintiffs-Appellants, v. John GOFF, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Thomas C. Kilcoyne (argued and briefed), Eric H. Kearney, Cohen, Todd, Kite & Stanford, Cincinnati, OH, for Plaintiffs-Appellants.

Christopher M. Culley, John P. Ware (argued and briefed), Sharon A. Jennings, Office of the Attorney General of Ohio, Columbus, OH, for Defendants-Appellees.

Leo J. Athas (briefed), Maragos, Athas, Apostol, Ditore & Kowal, Chicago, IL, for Amici Curiae, National Association of Independent Schools and the Independent Schools of the Central States.

Before: MERRITT, Chief Judge; KEITH and SUHRHEINRICH, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

This case involves a state requirement that nonpublic high schools administer the same proficiency tests as public high schools to students prior to their graduation. Plaintiffs, who include or represent certain private secondary schools in Ohio, appeal the district court's decision upholding Ohio statutes requiring private as well as public schools to administer ninth grade proficiency tests. Plaintiffs sought a declaration against the state and various state officials that the statutes at issue violated the First and Fourteenth Amendments and requested injunctive relief prohibiting their enforcement. We AFFIRM the order of the district court and uphold the testing requirement as rationally related to a legitimate state interest.

I.

In 1987, the Ohio legislature enacted legislation directing the State Board of Education to establish a statewide program of proficiency testing in Ohio schools. Ohio Rev.Code Ann. § 3301.0710 (Anderson Supp.1995). The tests were to be administered at some point between the fourth and ninth grades and cover five areas: reading, writing, mathematics, science and citizenship.

Pursuant to § 3301.0710, the Board of Education developed proficiency tests to be administered statewide in the ninth grade ("Ninth Grade Proficiency Test" or "NGPT"). In developing the tests, the Board solicited input from both public and private educators between the years 1987 and 1992. Most private school educators, however, chose not to participate in the development of the tests because it was assumed until 1993 that the testing would be optional for private schools.

In 1993, the legislature passed new statutes requiring private schools to participate in the testing program as well. Section 3301.16 mandated that private schools administer the tests as of July 1995 or lose their charters:

... [N]o charter shall be granted to a nonpublic school unless ... the school elects to administer the tests prescribed by [§ 3301.0710] beginning July 1, 1995.... The state board shall also revoke the charter of any nonpublic school, that ... does not participate in the testing program prescribed by [§ 3301.0710]....

Ohio Rev.Code Ann. § 3301.16 (Anderson Supp.1995). The tests are first administered in the ninth grade, and each student must pass by the end of the twelfth grade as a prerequisite to receiving a diploma:

On and after September 15, 1998, no nonpublic school chartered by the state board of education, shall grant any high school diploma to any person unless the person has attained at least the applicable scores designated under [§ 3301.0710] on all the tests required by [§ 3301.0710]....

Ohio Rev.Code Ann. § 3313.612 (Anderson 1994).

Plaintiffs are The Columbus Academy, The Grand River Academy, The Andrews School, and Maumee Valley Country Day School, all private schools in Ohio; Benjamin D. Sommers, a student at Cincinnati Country Day School, and his mother, Marilyn Sawyers Sommers; the Ohio Association of Independent Schools ("OAIS"), an association representing twenty-eight private schools in Ohio; and Douglas W. MacKelcan, chairman of the OAIS and headmaster of The Columbus Academy. On October 18, 1995, plaintiffs brought this action against the governor of Ohio, the Ohio State Board of Education, and various Ohio school officials to enjoin enforcement of §§ 3301.16 and 3313.612. Plaintiffs contended generally that the statutes at issue violated their rights under the First and Fourteenth Amendments to the Constitution. 1 Plaintiffs also sought declaratory relief and state law remedies.

The district court held a five-day bench trial, at which plaintiffs presented extensive testimony regarding the intrusiveness of the Ohio testing scheme and the degree to which it would "direct" the curricula of private schools. On January 30, 1996, the district court denied plaintiffs' requested relief and dismissed the case. Plaintiffs' motion to this court for injunctive relief pending appeal was denied on February 8, 1996. This appeal followed.

II.
A. Standing

Defendants contend that the OAIS does not have standing to challenge the statutes at issue on behalf of the parents of children attending OAIS schools. Whether a party has standing is a legal question reviewed de novo. Greater Cincinnati Coalition for the Homeless v. City of Cincinnati, 56 F.3d 710, 715 (6th Cir.1995). To establish standing, a party must allege actual or threatened injury, a causal connection between that injury and the defendant's conduct, and a likelihood that a court decision in the plaintiff's favor will redress the injury alleged. Id. (citing Northeastern Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993)). The plaintiff must also be "a proper proponent, and the action a proper vehicle, to vindicate the rights asserted." Greater Cincinnati, 56 F.3d at 715 (quoting Pestrak v. Ohio Elections Comm'n, 926 F.2d 573, 576 (6th Cir.), cert. dismissed, 502 U.S. 1022, 112 S.Ct. 672, 116 L.Ed.2d 763 (1991)).

An association has standing to assert the rights of its members if its members would otherwise have standing to sue in their own right, the interests it seeks to protect are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); Greater Cincinnati, 56 F.3d at 717.

The OAIS member schools clearly have standing in their own right to challenge § 3301.16, the statute which authorizes the revocation of the charters of those schools which fail to meet the testing requirement. That is, the member schools are threatened with actual injury through the loss of their charters.

The OAIS member schools also have standing to assert the constitutional right of parents to direct their children's education. See Runyon v. McCrary, 427 U.S. 160, 175 n. 13, 96 S.Ct. 2586, 2597 n. 13, 49 L.Ed.2d 415 (1976) ("It is clear that the schools have standing to assert these arguments on behalf of their patrons"); Pierce v. Society of the Sisters, 268 U.S. 510, 535-36, 45 S.Ct. 571, 573-74, 69 L.Ed. 1070 (1925) (holding that private school could assert rights of potential pupils and their parents). See generally Runyon, 427 U.S. at 178, 96 S.Ct. at 2598 ("the manner in which [a parent's] child is to be educated" implicates parental interests protected by Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973)). Accord Parks Sch. of Business, Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir.1995) (holding that school had standing to challenge state's refusal to guarantee certain loans to students); Rothner v. City of Chicago, 929 F.2d 297, 301 (7th Cir.1991) (citing Pierce favorably, noting that "when the interests of the litigant and the third party are closely related, the courts have viewed quite charitably assertions of third-party standing"). The member schools therefore have standing to challenge § 3303.612 on behalf of parents of students who are threatened with the nonreceipt of diplomas.

Consequently, the OAIS itself, as an organization dedicated exclusively to advancing the interests of the member schools, has associational standing to challenge the statutes at issue. See Hunt, 432 U.S. at 343, 97 S.Ct. at 2441. 2

B. Validity of Testing Requirement for Private Schools
1. Fourteenth Amendment.

Plaintiffs assert that § 3301.16 impinges on a parent's Fourteenth Amendment right to direct, by choice of school, the education of his or her child. Plaintiffs further contend that the statute violates a fundamental right, requiring this court to apply strict scrutiny in our review. We consider first the appropriate level of scrutiny.

Challenges to legislation implicating a fundamental right are reviewed with strict scrutiny. Borman's, Inc. v. Michigan Property & Casualty Guar. Ass'n, 925 F.2d 160, 162 (6th Cir.), cert. denied, 502 U.S. 823, 112 S.Ct. 85, 116 L.Ed.2d 58 (1991). If a fundamental right is not at stake, the statute is generally reviewed for a rational basis. Id.

The Supreme Court has held that parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction. Runyon, 427 U.S. at 178, 96 S.Ct. at 2598 (citing Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526 1532, 32 L.Ed.2d 15 (1972) and Pierce, 268 U.S. at 534, 45 S.Ct. at 573). This right is grounded in Fourteenth Amendment liberty interests which include the right to "marry, establish a home and bring up children." Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). The Supreme Court has applied strict scrutiny to such Fourteenth Amendment claims where they are coupled with a challenge based on the Free Exercise Clause of the First Amendment. Yoder, 406 U.S. at 233, 92 S.Ct. at 1542. Absent a free exercise challenge, however, the...

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