Simmons-Harris v. Zelman, 1:99 CV 1740.

• Citation: 72 F.Supp.2d 834
• Decision Date: 20 December 1999
• Docket Number: No. 1:99 CV 1740.,No. 1:99 CV 1818.,1:99 CV 1740.,1:99 CV 1818.
• Parties: Doris SIMMONS-HARRIS, et al., Plaintiffs, v. Dr. Susan Tave ZELMAN, Superintendent of Public Instruction, State of Ohio, Defendant. Sue Gatton, et al., Plaintiffs, v. Dr. Susan Tave Zelman, Superintendent of Public Instruction, State of Ohio, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

72 F.Supp.2d 834

Doris SIMMONS-HARRIS, et al., Plaintiffs, v. Dr. Susan Tave ZELMAN, Superintendent of Public Instruction, State of Ohio, Defendant.

Sue Gatton, et al., Plaintiffs, v. Dr. Susan Tave Zelman, Superintendent of Public Instruction, State of Ohio, et al., Defendants.

No. 1:99 CV 1740.

No. 1:99 CV 1818.

United States District Court, N.D. Ohio, Eastern Division.

December 20, 1999.

David G. Latanick, Cloppert, Portman, Sauter, Latanick & Foley, Columbus, OH, Raymond V. Vasvari, American Civil Liberties Union, Cleveland, OH, Ayesha N. Khan, Americans United for the Separation of Church and State, Washington, DC, Steven R. Shapiro, American Civil Liberties Union Foundation, New York, NY, Elliot M. Mincberg, Judith Schaeffer, People for the American Way, Washington, DC, Christopher A. Lopez, The Ohio Education Association, Columbus, OH, Steven K. Green, Washington, DC, Andrew D. Roth, Robert H. Chanin, Alice O'Brien, Bredhoff & Kaiser, Washington, DC, for Doris Simmons-Harris, Marla Franklin, Steven Behr.

Roger F. Carroll, Mary Lynn Ready, Matthew D. Miko, Karen Lee Lazorishak, Susan C. Walker, Edward B. Foley, State Solicitor, Charles W. See, Office of the Atty. Gen., Columbus, OH, for Susan Tave Zelman.

David C. Tryon, Porter, Wright, Morris & Arthur, Cleveland, OH, Clint Bolick, Richard Komer, Matthew Berry, Institute for Justice, Washington DC, for Senel Taylor, intervenor-defendant, Johnietta McGrady, Christine Suma, Arkela in her own behalf and as natural guardian of her children, Tanashia Winston, and Devonte Winston, Amy in her own behalf and as natural guardian of her child Amber Lee Angelo.

James D. Thomas, Squire, Sanders & Dempsey, Cleveland, OH, David J. Young, Michael R. Reed, Squire, Sanders & Dempsey, Columbus, OH, David J. Hessler, Nathan E. Hessler, Wegman, Hessler, Vanderburg & O'Toole, Beacon Place, Cleveland, OH, for Hanna Perkins School.

ORDER

OLIVER, District Judge.

I. INTRODUCTION AND FACTS

Plaintiffs brought this action seeking to enjoin permanently a portion of the Ohio Pilot Scholarship Program on the ground that it violates the Establishment Clause of the First Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment to the U.S. Constitution. All plaintiffs and all defendants in these consolidated actions have filed motions for summary judgment except for Intervenor/Defendant Hanna Perkins, who filed a brief in support of the other Defendants' motions for summary judgment. For the reasons set forth below, the court grants the Motions for Summary Judgment of Plaintiffs Doris Simmons-Harris, et al. and Plaintiffs Sue Gatton, et al. (Doc. Nos. 83 and 97, respectively), and denies the Motions for Summary Judgment of Intervening Defendants Senel Taylor, et al. and the State Defendants, et al. (Doc. Nos. 82 and 92, respectively). Accordingly, the State Defendants are permanently enjoined from administering the Voucher Program.

In 1995 the Ohio Legislature enacted a pilot scholarship program to address an educational crisis in Cleveland's public schools in the wake of a U.S. District Court-ordered takeover of the administration of the Cleveland City School District (the "District") by the State. This program, as more fully discussed herein, was struck down by the Ohio Supreme Court as being in violation of the Ohio Constitution. The program was re-enacted in all pertinent respects by the Ohio Legislature in June 1999. The 1999 program is applicable, as was the 1995 program, to students residing in the District. The program has two components: a scholarship program to enable students to attend "alternative schools" ("Voucher Program" or "Program"); and a tutorial program for children attending the Cleveland Public Schools ("Tutorial Program"). Plaintiffs, while challenging the constitutionality of the Voucher Program, do not challenge the Tutorial Program in this action.¹

Private schools within the geographic boundaries of the District and public schools adjacent to the District are eligible to participate in the Voucher Program as "alternative schools." In order to do so, private schools must register with the State Superintendent. Recipients are chosen by lot and receive a fixed percentage of the tuition charged by the alternative school of their choice, up to $2,500. Students whose family income is not more than 200% of the federally-established poverty level receive 90% of their school tuition; other scholarship recipients whose family income is above this threshold receive 75% of their tuition. Participating students may first enroll in the Program as early as when they enter kindergarten and must do so by third grade. Once admitted to the Program, they are eligible for scholarships through eighth grade. Disbursement of scholarship money to a private school is accomplished by the State sending a check to the chosen school made payable to the parents of the recipient; thereafter, the parents must endorse the check to the school. The State places no restriction on how the private school may utilize the money. In the event that an adjacent public school is involved, the State would issue a check made payable to the school district.

In the three years prior to the Ohio Supreme Court's holding the 1995 program unconstitutional, no public schools registered for the program. None have registered since the enactment of the Program in 1999. For the 1999-2000 school year, 3,761 students were to be enrolled in the Program. Sixty percent of these students are from families at or below the poverty level. At the beginning of the 1999-2000 school year, fifty-six schools were registered to participate in the Program. Forty-six of the schools, or over 82%, are church-affiliated.² Of the 3,761 students enrolled in the Program, 3,632, or over 96%, are enrolled in sectarian schools. Pl. J.A. vol. I, Ex. E.

Religious characteristics vary from school to school, but participating schools share certain traits. For example, it can generally be said that a central part of each school's program is instruction in the theology or doctrine of a particular faith and that religion and religious doctrines are an integral part of the entire school experience. A review of several schools' parent handbooks perhaps provides better insight into the religious nature of the schools at issue.³

For example, Saint Patrick School includes in its Family Handbook the following:

PHILOSOPHY OF CATHOLIC EDUCATION

We believe that a philosophy of Catholic education begins with faith that God, in creating, gifted us with life. He became one of us in His Son Jesus, and in the person of His Spirit awaits our response to His unconditional overture of love. Jesus remains with the community He formed, witnessing and sharing the Good News in every age and with all people, ever yearning for a return of love either by a sincere response to conscience or by membership in His Church. It is from this perspective that the educational ministry of the Catholic community flows.

* * * * * *

MISSION STATEMENT

St. Patrick School is a Catholic School in the Diocese of Cleveland, Ohio. The mission of St. Patrick School is to live and teach the Gospel message. We are dedicated to the formation of youth according to our Catholic Traditions within an innovative academic environment which provides students with the opportunity to develop spiritually, academically, and socially to the best of their abilities.

Objectives of Education

1. To communicate the gospel message of Jesus.

2. To provide opportunities to build and experience a faith community.

3. To orient students to the responsibility and experience of service because of their membership in the Christian community.

4. To provide students with opportunity for growth in prayer.

5. To provide instruction in religious truths and values in such a way that they become an integrated part of the school program.

6. To develop a faculty and staff who by their presence and teaching express an integrated approach to learning and living in their lives.

7. To provide an academic program and environment conducive to the optimal development of each student.

St. Patrick Handbook at 1, Pl. J.A. vol. III, Ex. I, Tab 26.⁴ Additionally, all students are required to participate in religion classes, which are taught daily, and to attend all religious, liturgical, and paraliturgical celebrations. Id. at 10.

At St. Rocco School, "[a]n integral part of the school program is instruction in religious truths and values. These values permeates [sic] the whole atmosphere of the school." St. Rocco School Handbook at 3, Pl. J.A. vol. III, Ex. I, Tab 27. Each student at St. Rocco School is expected to contribute a nominal amount for membership in the Society for the Propagation of the Faith. Id. at 11. Like St. Patrick School, "[a]ll students, whether Catholic or not, participates [sic] in religion classes, mass, religious activities, and receive a religion grade." Id. at 11. Parents are asked to help their children practice specific prayers at each grade level. For example, they are to teach their children the Sign of the Cross and the Hail Mary in kindergarten and the Our Father and Glory Be to the Father in first grade. Id.

St. Stanislaus School "is an integral part of the St. Stanislaus community whose shared mission with parents is to facilitate Christian values within the context of the core curriculum. [They] commit [them]selves to the formation of a faith-filled Catholic community, preparing students for spiritual development, and future roles as responsible, knowledgeable, productive Christian individuals." St. Stanislaus School Materials, Pl. J.A. vol. III, Ex. I, Tab 28. As one of its goals, "St. Stanislaus School will increase their Catholic Identity by developing opportunities for faith development of faculty and students." Id. As at St. Patrick and St. Rocco Schools, religion classes are taught daily at all grade levels and "[n]on-Catholic...