Simmons-Harris v. Goff, SIMMONS-HARRIS

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PFEIFER; MOYER; WILLIAM R. BAIRD, J., of the Ninth Appellate District, sitting for COOK; WILLIAM W. YOUNG, J., of the Twelfth Appellate District, sitting for LUNDBERG STRATTON; DOUGLAS; BAIRD; WILLIAM W. YOUNG
• Citation: 711 N.E.2d 203,86 Ohio St.3d 1
• Parties: , 135 Ed. Law Rep. 596 et al., Appellees and Cross-Appellants, v. GOFF, Supt., et al., Appellants and Cross-Appellees. Gatton et al., Appellees, v. Goff, Supt., et al., Appellants.
• Decision Date: 27 May 1999
• Docket Number: SIMMONS-HARRIS,No. 97-1117

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86 Ohio St.3d 1 711 N.E.2d 203, 135 Ed. Law Rep. 596 SIMMONS-HARRIS et al., Appellees and Cross-Appellants,
v.
GOFF, Supt., et al., Appellants and Cross-Appellees.
Gatton et al., Appellees,
v.
Goff, Supt., et al., Appellants. No. 97-1117. Supreme Court of Ohio. Submitted Sept. 28, 1999. Decided May 27, 1999.

[711 N.E.2d 205] On June 28, 1995, the General Assembly

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of the state of Ohio adopted Am.Sub.H.B. No. 117, the biennial operating appropriations bill for fiscal years 1996 and 1997. 146 Ohio Laws, Part I, 898. Among the provisions were those establishing the Pilot Project Scholarship Program, commonly known as the School Voucher Program. See R.C. 3313.974 through3313.979.

The School Voucher Program requires the State Superintendent of Public Instruction to provide scholarships to students residing within Cleveland City School District. ¹ R.C. 3313.975(A). Students receiving scholarships may use them only to attend an "alternative school," id., which is defined as a registered private school or a public school located in an adjacent school district. R.C. 3313.974(G). The scholarships are ninety percent (for students with family income below two hundred percent of the maximum income level established by the superintendent) or seventy-five percent (for students with family income at or above two hundred percent of that level) of the lesser of the actual tuition charges or an amount to be established by the superintendent not to exceed $2,500. R.C. 3313.978(A) and (C)(1). The number of scholarships available in a given year is limited[711 N.E.2d 206] by the amount appropriated by the General Assembly. R.C. 3313.975(B).

Scholarship funds are made available in the form of checks. A check for a student enrolled in a registered private school is payable to the student's parents; a check for a student enrolled in an adjacent public school district is payable to that school district. R.C. 3313.979. Checks for students enrolled in registered private schools are sent to the school, where the parents are required to endorse

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the checks to the school. This mechanism, which is not part of the statutory scheme, ensures that the scholarship funds are expended on education.

On January 10, 1996, Sue Gatton, Millie Waterman, Walter Hertz, Reverend James Watkins, Robin McKinney, Loretta Heard, Reverend Don Norenburg, Deborah Schneider, and the Ohio Federation of Teachers ("Gatton") filed suit against the state of Ohio and John M. Goff, the state superintendent, asserting that the School Voucher Program violated various provisions of the Ohio Constitution and the Establishment Clause of the First Amendment to the United States Constitution. On January 31, 1996, Doris Simmons-Harris, Sheryl Smith, and Reverend Steven Behr ("Simmons-Harris") filed suit against the state superintendent, challenging the constitutionality of the School Voucher Program. The cases were consolidated, and the state moved for summary judgment. Summary judgment was granted. Gatton and Simmons-Harris appealed.

The court of appeals declared the School Voucher Program to be unconstitutional, holding it violative of the Establishment Clause of the First Amendment to the United States Constitution; the School Funds Clause of Section 2, Article VI of the Ohio Constitution; the Establishment Clause of Section 7, Article I of the Ohio Constitution; and the Uniformity Clause of Section 26, Article II of the Ohio Constitution. The court of appeals also held that the School Voucher Program did not violate the Thorough and Efficient Clause of Section 2, Article VI of the Ohio Constitution, or the single-subject rule of Section 15(D), Article II of the Ohio Constitution.

The cause is now before this court pursuant to the allowance of discretionary appeals and a cross-appeal.

Robert H. Chanin and John M. West, Washington, DC, pro hac vice; Cloppert, Portman, Sauter, Latinick & Foley, David G. Latanick, Columbus and William J. Steel; Christopher A. Lopez, Troy, Steven R. Shapiro, White Plains, NY, Joan M. Englund, Cleveland, Elliot M. Mincberg, Judith Schaeffer and Steven K. Green, Washington, DC, for appellees and cross-appellants Doris Simmons-Harris et al.

Benesch, Friedlander, Coplan & Aronoff, L.L.P., Donald J. Mooney, Jr., Cincinnati, Mark D. Tucker and Roger L. Schantz, Columbus; Marvin E. Frankel, pro hac vice, and Justine A. Harris, New York, NY, for appellees Sue Gatton et al.

Betty D. Montgomery, Attorney General, Jeffrey S. Sutton; Sharon A. Jennings, Roger F. Carroll and Elizabeth K. Ziewacz, Assistant Attorneys General, for appellants and cross-appellees John M. Goff and the state of Ohio.

Squire, Sanders & Dempsey, L.L.P., David J. Young, Scott L. Marrah and Michael R. Reed, Columbus; Wegman, Hessler, Vanderburg & O'Toole, David Hessler and

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Nathan Hessler, Cleveland; Chester, Willcox & Saxbe and John J. Chester, Columbus, for appellants and cross-appellees Hanna Perkins School et al.

Clint Bolick, pro hac vice, William H. Mellor III and Richard D. Komer, Southfield, MI; Reminger & Reminger, Cleveland and Columbus and Kevin Foley, for appellants and cross-appellees Hope for Cleveland's Children et al.

Melnick & Melnick and Robert R. Melnick, Youngstown; John W. Whitehead and Steven H. Aden, Honolulu, HI, urging reversal for amicus curiae Rutherford Institute.

Zeiger & Carpenter, John W. Zeiger and Marion H. Little, Jr., Columbus, urging reversal for amici curiae Citizens for Educational Freedom, Parents Rights Organization, and Education Freedom Foundation.

Nathan J. Diament, New York, NY, pro hac vice, urging reversal for amicus curiae [711 N.E.2d 207] Institute for Public Affairs, Union of Orthodox Jewish Congregations of America.

Hugh Calkins and John K. Sullivan, amici curiae, urging reversal.

Miller, Cassidy, Larroca & Lewin, L.L.P., Nathan Lewin and Richard W. Garnett, Washington, DC; and Dennis Rapps, urging reversal for amici curiae the National Jewish Commission on Law and Public Affairs, Agudath Harabonim of the United States and Canada, National Council of Young Israel, Rabbinical Alliance of America, Rabbinical Council of America, Torah Umesorah, National Society of Hebrew Day Schools, Agudath Israel of America, and Union of Orthodox Jewish Congregations of America.

Kevin J. Hasson, Eric W. Treene and Roman P. Storzer, urging reversal for amicus curiae Becket Fund for Religious Liberty.

Thomas G. Hungar and Eugene Scalia, Washington, DC, pro hac vice, urging reversal for amici curiae Center for Education Reform, Representative William F. Adolph, Jr., American Legislative Exchange Council, Arkansas Policy Foundation, ATOP Academy, Center for Equal Opportunity, CEO America, Representative Henry Cuellar, Education Leaders Council, Floridians for Educational Choice, Maine School Choice Coalition, Reach Alliance, Texas Coalition for Parental Choice in Education, United New Yorkers for Choice in Education, "I Have a Dream" Foundation of Washington, D.C., Institute for Transformation of Learning, Liberty Counsel, Milton & Rose D. Friedman Foundation, Minnesota Business Partnership, National Federation of Independent Business, North Carolina Education Reform Foundation, Pennsylvania Manufacturers Association, Putting Children First, Mayor Bret Schundler, Texas Justice Foundation, and Toussaint Institute.

Goldstein & Roloff and Morris L. Hawk, Cleveland, urging affirmance for amicus curiae Ohio Coalition for Equity and Adequacy in School Funding.

Wolman, Genshaft & Gellman and Benson A. Wolman, Columbus, urging affirmance for amicus curiae National Committee for Public Education & Religious Liberty.

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Patrick F. Timmins, Jr., Bronx, NY, urging affirmance for amicus curiae Coalition of Rural and Appalachian Schools.

PFEIFER, J.

The court of appeals ruled on six substantive constitutional issues. We will address each of them in turn. We conclude that the current School Voucher Program generally does not violate the Establishment Clause of the First Amendment to the United States Constitution or the Establishment Clause of Section 7, Article I of the Ohio Constitution, and does not violate the School Funds Clause of Section 2, Article VI of the Ohio Constitution, the Thorough and Efficient Clause of Section 2, Article VI of the Ohio Constitution, or the Uniformity Clause of Section 26, Article II of the Ohio Constitution. We also conclude that the current School Voucher Program does violate the one-subject rule, Section 15(D), Article II of the Ohio Constitution. Further, we conclude that former R.C. 3313.975(A) does violate the Uniformity Clause of Section 26, Article II of the Ohio Constitution. Accordingly, we affirm in part and reverse in part.

I

The First Amendment to the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." In Cantwell v. Connecticut (1940), 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 1218, the Supreme Court stated that "[t]he Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws." Thus, Ohio's General Assembly is proscribed from enacting laws respecting an establishment of religion.

In Lemon v. Kurtzman (1971), 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, the Supreme Court set forth a three-prong test to determine whether the Establishment Clause has been violated. Various Supreme Court Justices have challenged the continuing validity of the Lemon test. See Lamb's Chapel v. Ctr. Moriches Union Free School Dist. (1993), 508 U.S. 384, 398-399, 113 S.Ct. 2141, 2149-2150, 124 L.Ed.2d 352, 364 (Scalia, J., [711 N.E.2d 208] concurring); Allegheny Cty. v. Am. Civ. Liberties Union, Greater Pittsburgh Chapter (1989), 492 U.S. 573, 655-657, 109 S.Ct. 3086, 3134-3135, 106 L.Ed.2d 472, 535 (Kennedy, J., joined by Rehnquist, C.J., White and Scalia, JJ., concurring in the judgment in part and dissenting in...