Zelman v. Harris Brief Amicus Curiae in Support of Respondents

    Nos. 00-1751,00-1777, and 00-1779

In The

Supreme Court of thr llrutci» sta tes

Susan  Tave Zelman , Superintendent of 
Public Instruction of Ohio , et a l ., Petitioners,

v.
Doris Simmons-Harris, et al ., Respondents.

Hanna  Perkins School, et a l ., Petitioners,
v.

Doris Simmons-Harris, et  al ., Respondents.

Senel Taylor , et a l ., Petitioners,
v.

Doris Simmons-Harris, et  al ., Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the Sixth Circuit 
BRIEF OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. AND THE NATIONAL 
ASSOCIATION FOR THE ADVANCEMENT OF 

COLORED PEOPLE AS AMICI CURIAE 
IN SUPPORT OF RESPONDENTS

Elaine R. J ones Lia B . Epperson 
Director-Counsel DAMON T. Hewitt
Theodore M. Shaw Chinh Q. Le 

*Norman J. Chachkin Naacp Legal Defense and 
James L. Cott Educational Fund, Inc.
Dennis D. Parker 99 Hudson Street, 16th Floor 
ELISE C. BODDIE New York, NY 10013-2897
Derek R.B. Douglas (212) 965-2200 

* Counsel o f Record
(Listing of Counsel continued inside cover)_____



(Listing of Counsel continued from cover)

Dennis Courtland Hayes 
General Counsel 
National Association for 

the Advancement of 
Colored People 

4805 Mt. Hope Drive, 5th Floor 
Baltimore, MD 21215 
(410)486-9191

Kimberly West-Faulcon 
Naacp Legal Defense and 
Educational Fund, Inc. 
Suite 1480
1055 Wilshire Boulevard 
Los Angeles, CA 90017 
(213)975-0211

Counsel for Amici Curiae



TABLE OF CONTENTS
Page

Table o f  A u th o ritie s .........................................................................ii

Interest o f  A m ic i ........................................................   1

Summary o f  A rg u m en t.................................................................... 3

A R G U M EN T —

Introduction ......................................................................... 3

I The Voucher Program Involved In 
This Action Was Neither Designed,
Nor Can It Operate, To Fulfill The 
Promise Of Brown For African- 
American Pupils In The Cleveland 
Public Schools, The Same Class Of 
Students Found By The Federal 
Courts To Have Suffered From Long- 
Maintained De Jure Segregation In
The Cleveland Public Schools................... 6

II Private School Tuition Voucher 
Programs Such As The One Involved 
In This Case Contain The Seeds Of 
Educational Resegregation And Lack
Safeguards To Prevent This Result . . . .  13 

C o n c lu s io n .....................................................................................18



11

TABLE OF AUTHORITIES

Cases:

Page

Board o f Education o f Oklahoma City Public 
Schools v. Dowell,

498 U.S. 237 (1 9 9 1 ) ....................................................... 15

Brown v. Board o f  Education,
347 U.S. 483 (1 9 5 4 ) ................................................passim

Brown v. South Carolina State Board o f  Education,
296 F. Supp. 199 (D.S.C.), a ff’dper curiam,
393 U.S. 2 2 2 (1 9 6 8 ) ....................................................  14n

Cappachione v. Charlotte-Mecklenburg Schools,
57 F. Supp. 2d 228 (W .D.N.C. 1999), 
a ff’d  in part and rev’d  in part en banc sub 
nom. Belkv. Charlotte-Mecklenburg Board 
o f Education, 2001 U.S. App. LEXIS 10712
(4th Cir. 1 0 0 1 ) .....................................................................16

Coffey v. State Educational Finance Commission,
296 F. Supp. 1389 (S.D. M iss. 1 9 6 9 ).....................  14n

Columbus Board o f Education v. Penick,
443 U.S. 449 (1 9 7 9 ) ....................................................... 15

Cooper v. Aaron,
358 U.S. 1 (1 9 5 8 ) ..............   15

Dayton Board o f  Education v. Brinkman,
443 U.S. 5 2 6 (1 9 7 9 ) ....................................................... 15



Ill

TABLE OF AUTHORITIES (continued)
Page

Cases (continued):

DeRolph v. State,
93 Ohio St. 3d 309, 754 N .E .2d 1184 (2001) ..........2

DeRolph v. State,
89 Ohio St. 3d 1, 728 N.E .2d 993 (1999) .................2

DeRolph v. State,
78 Ohio St. 3d 193, 677 N .E .2d 733 (1997) ............ 2

Eisenberg v. Montgomery County Public Schools,
197 F.3d 123 (4th Cir. 1999), cert, denied,
146 L. Ed. 2d 312 (2 0 0 0 ) .............................................  16

Freeman v. Pitts,
503 U.S. 467 (1 9 9 2 ) .................................  4 ,5 ,9 ,  15-16

Green v. County School Board o f New Kent County,
391 U.S. 430 (1 9 6 8 ) ......................................................  15

Griffin v. State Board o f  Education,
296 F. Supp. 1178 (E.D. Va. 1969) . . .  14n, 16n-17n

Lee v. Macon County Board o f  Education,
267 F. Supp. 458 (M.D. Ala. 1 9 6 7 ) ........................ 14n

Milliken v. Bradley,
418 U.S. 7 1 7 (1 9 7 4 ) ......................................................  15

Missouri v. Jenkins,
515 U.S. 7 0 (1 9 9 5 ) ........................................  12n, 15, 16



IV

TABLE OF AUTHORITIES (continued)
Page

Cases (continued):

Poindexter v. Louisiana Financial Assistance 
Commission,

275 F. Supp. 833 (E.D. La. 1967), a ff’d,
389 U.S. 571 (1 9 6 8 ) ................. ................................... 14n

Reed v. Rhodes,
662 F.2d 1219 (6th Cir. 1981), cert.
denied, 455 U.S. 1018 (1982) ...................................... 8

Reed v. Rhodes,
455 F. Supp. 569 (N.D. Ohio 1978), 
a ff’d, 662 F.2d 1219 (6th Cir. 1981), 
cert, denied, 455 U.S. 1018 (1982) ............ ................8

Reed v. Rhodes,
455 F. Supp. 546 (N.D. Ohio 1978), 
a ff’d, 662 F.2d 1219 (6th Cir. 1981), 
cert, denied, 455 U.S. 1018 (1982) .............................8

Reed v. Rhodes,
422 F. Supp. 708 (N.D. Ohio 1976), remanded 
per curiam, 559 F.2d 1220 (6th Cir. 1978), 
supplemental opinion on remand, 455 F. Supp.
569 (N.D. Ohio 1978), a ff’d  in relevant part 
and remanded on other grounds, 607 F.2d 714 
(6th Cir. 1979), cert, denied, 455 U.S. 935 
(1 9 8 0 ) .................................................................................. 8

San Antonio Independent School District v. Rodriguez,
411 U.S. 1 (1 9 7 3 ) .................................................. 12n, 16



V

Cases (continued):

Swann v. Charlotte-Mecklenburg Board o f  Education,

TABLE OF AUTHORITIES (continued)
Page

402 U.S. 1 (1 9 7 1 ) .......................................................4, 15

Tuttle v. Arlington County School Board,
195 F.3d 123 (4th Cir. 1 9 9 9 ) ........................................  16

Wessman v. Gittens,
160 F.3d 790 (1st Cir. 1 9 9 8 ) ........................................  16

Statutes:

Ohio Rev. Code § 3313.977 ......................................................  10

Other Authorities'.

B rief for the N A ACP Legal D efense and Educational 
Fund, Inc. as Amicus Curiae in Support o f  
Respondents, Adarand Constructors, Inc. v.
Mineta, 2000 U.S. Lexis 10814 (U.S. N ovem ber 
27, 2001) (No. 00-730) ................................................ 14

Brian P. Gill, M ichael Timpane, K aren E. Ross, and 
Dom inic J. Brewer, Rhetoric Versus Reality:
W hat W e K now  and W hat W e N eed to K now  
A bout Vouchers and Charter Schools (Rand 
Corp. 2001), available at http://w w w .rand.org/ 
publications/M R/M Rl 118 (visited Dec. 9,
2001) ............................................................. lOn, 11, 14n

http://www.rand.org/


VI

TABLE OF AUTHORITIES (continued)
Page

Other Authorities (continued):

Joint A ppendix, Simmons-Harris v. Zelman, 234
F.3d 945 (6th Cir. 2 0 0 0 ) .................................... 6n-7n, 9

M olly Tow nes O ’Brien, Private School Tuition 
Vouchers and the Realities o f  Racial 
Politics, 64 Tenn. L. Rev. 359 ( 1 9 9 7 ) ............  11, 13n

Zach Schiller, Policy M atters Ohio, Cleveland 
School Vouchers: Where the Students 
Come From (2001) (available at 
http://w w w .policym attersohio.org)
(visited Dec. 4, 2 0 0 1 ) ........................................ .. 11

Piet van Lier & Caitlin Scott, Fewer choices,
longer commutes fo r  black voucher students,
Catalyst for Cleveland Schools, Oct/N ov 
2001, <http://ww w .catalyst-cleveland.org/ 
10-01/1001extra4.htm > (visited Nov. 27,
2001) .........................................................................  6n-7n

http://www.policymattersohio.org
http://www.catalyst-cleveland.org/10-01/1001extra4.htm
http://www.catalyst-cleveland.org/10-01/1001extra4.htm


INTEREST OF AMICE

The NAACP Legal D efense and Educational Fund, Inc. 
(“LDF”) is a non-profit corporation established under the laws 
o f  the State o f  N ew  Y ork. It was form ed to assist black persons 
in  securing their constitutional rights through the prosecution 
o f  law suits and to provide legal services to black persons 
suffering injustice by reason o f  racial discrim ination. For six 
decades, LDF attorneys have represented parties in litigation 
before this Court and the low er courts involving race 
discrim ination, including in the seminal case o f  Brown v. Board 
o f  Education, 347 U.S. 483 (1954).

The National A ssociation for the A dvancem ent o f  
Colored People (“N A A C P”), established in 1909, is the 
nation’s oldest civil rights organization. It has state and local 
affiliates throughout the nation. The fundam ental m ission o f  
the N A A C P is the advancem ent and im provem ent o f  the 
political, educational, social and economic status o f  m inority 
groups; the elimination o f  racial prejudice; the publicizing o f  
adverse effects o f  racial discrim ination; and the initiation o f  
lawful action to secure the elim ination o f  racial bias. The 
N A ACP has appeared before courts throughout the nation in 
num erous civil rights cases.

Throughout their existence, LDF and the N A A C P have 
worked to  redeem  the guarantee o f  equal protection o f  the laws. 
In no area have they placed higher priority than on education —  
especially in public schools, where the overw helm ing m ajority 
o f  A frican-A m erican students have been and w ill continue to 
be enrolled. In the struggle for an equal and quality education

*A11 parties have consented to the filing o f briefs amici 
curiae in support of any party’s position. No counsel for any party 
authored this brief in whole or in part, and no person or entity other 
than amicus made any monetary contribution to the preparation or 
submission of this brief.



2

for these pupils, the im pact o f  racial segregation and 
concentrated poverty have been daunting im pedim ents. N o 
individuals or institutions have brought these issues to this 
Court m ore often than LDF and the N A A CP, w ith the hope that 
this Court w ould rem ove the barriers that im pede the process 
o f  undoing the effects o f  centuries o f  discrim ination that have 
systematically and systemically lim ited educational opportunity 
for A frican-A m erican children.

The enrollm ent in the Cleveland public school system  
today is nearly three-quarters African-A m erican. For 
generations, the Cleveland district practiced intentional racial 
discrim ination and segregation that lim ited educational 
opportunities for A frican-A m erican children. Today, the 
system  suffers from  financial shortfalls associated w ith 
deficiencies in O hio’s school funding m echanism , see DeRolph 
v. State, 78 Ohio St. 3d 193, 677 N .E .2d 733 (1997); id., 89 
Ohio St. 3d 1, 728 N .E .2d 993 (1999); id ,  93 Ohio St. 3d 309, 
754 N .E .2d 1184 (2001). As Petitioners’ briefs in these cases 
indicate, the school system continues to struggle to provide 
m inim ally adequate educational opportunities to  its students, let 
alone high-quality results.

A gainst this background, LDF and the N A A C P believe, 
O hio’s decision to address C leveland’s desperate needs by 
enacting a program  that pays a lim ited am ount tow ard private 
sectarian schools’ tuition charges for a lim ited num ber o f  
Cleveland students raises grave dangers o f  dissipating resources 
that are essential to the preservation and ultim ate im provem ent 
o f  public education in Cleveland and o f  fostering the 
resegregation o f  schooling in Cleveland (developm ents 
com pletely inconsistent w ith the purposes o f  the Brown 
decisions). Because Petitioners have urged the Court to uphold 
O hio’s private school voucher program  on the theory that such 
action will bring to fruition the goals o f  Brown v. Board o f  
Education, an assertion we find so unlikely as to be nearly



3

frivolous, LDF and the N A ACP file this brief in support o f  the 
right o f  every child w ithin the Cleveland Public School System 
to a quality education.

SUMMARY OF ARGUMENT

The voucher program  at issue before this Court should 
not be upheld against a First A m endm ent challenge on the 
ground that the im provem ent it will bring to the education o f  
A frican-A m erican students now  attending C leveland’s public 
schools outw eighs Establishm ent Clause concerns. Structural 
and funding lim itations m ake hollow  any hope or expectation 
that the vouchers awarded by lottery to a small num ber o f  
Cleveland students under this program  will fulfill Brown 's  
prom ise o f  “equal educational opportunity” for all.

M oreover, the program  —  especially i f  it is expanded 
or m odified to loosen constraints on choice —  creates serious 
dangers o f  increased school segregation o f  publicly funded 
education in  the Cleveland area, particularly distressing in  light 
o f  the long-m aintained de jure  racially segregated system 
previously operated by the Cleveland public schools.

ARGUMENT

Introduction

The precise issues presented in these cases involve the 
perm issibility  o f  unrestricted state tuition assistance to 
pervasively sectarian institutions offering elem entary and 
secondary education. LDF and the NAACP believe that the 
com pelling doctrinal considerations warranting affirm ance o f  
the ruling below  on those issues will be fully and adequately 
presented to the Court by Respondents and other amici filing in 
support o f  Respondents.

W e therefore lim it our observations to one aspect o f  the 
grounds asserted by Petitioners to support their requests that the



4

judgm ent below  be reversed. Specifically, Senel Taylor et al., 
Petitioners in  No. 00-1779, seek to persuade this Court that 
reversal w ould not only be consistent w ith a correct 
understanding and interpretation o f  the Religion Clauses o f  the 
First Am endm ent —  but that, in addition, it w ould bring to 
fruition, at long last, the “sacred prom ise o f  equal educational 
opportunities for all A m erican schoolchildren” that the Court 
m ade to the A m erican people in Brown v. Board o f  Education, 
347 U.S. 483 (1954). See Br. for Taylor Petitioners, No. GO- 
1779 [hereinafter, “Pet. Br.”] at 4-5.

If  this assertion were even faintly well-founded, it 
w ould be a pow erful practical encouragem ent to a decision in 
favor o f  Petitioners. The Brown ruling is regarded by nearly all 
com m entators and observers o f  the A m erican jud icial system 
as the m ost im portant decision o f  this Court in the tw entieth 
century. The Court and its m em bers have expressed both 
continued support for its core holding and an appreciation o f  
the difficulties that have attended its effectuation. E.g., 
Freeman v. Pitts, 503 U.S. 467, 505 (1992) (Scalia, J., 
concurring) (“ [W]e m ust continue to prohibit, w ithout 
qualification, all racial discrim ination in the operation o f  public 
schools, and to afford rem edies that elim inate not only the 
discrim ination but its identified consequences.”); Swann v. 
Charlotte-Mecklenburg Board ofEducation, 402 U .S. 1 ,13-14 
(1971) (referring to history o f  “ [delibera te  resistance o f  some 
to the Court’s m andates” and “the dilatory tactics o f  many 
school authorities”).

The Court has further recognized the fact that the 
effects o f long-m aintained racially dual school system s in this 
nation have not been fully extirpated, e.g., Freeman v. Pitts, 
503 U.S. at 495 (“In one sense o f  the term , vestiges o f  past 
segregation by state decree do rem ain in our society and in our 
schools. Past wrongs to the b lack race, wrongs com m itted by 
the State and in its name, are a stubborn fact o f  history. And



5

stubborn facts o f  history linger and persist.”), even in  situations 
in which practical rem edies to excise them  fully no longer 
exist, see id., 503 U.S. at 491-92 (“ [W Jith the passage o f  tim e, 
the degree to which racial im balances continue to represent 
vestiges o f  a constitutional violation m ay diminish, and the 
practicability and efficacy o f  various rem edies can be evaluated 
w ith m ore precision.”).

Thus, were there reason to believe that m odifying w ell- 
established First A m endm ent principles would have the 
ancillary effect o f  bringing about substantial and lasting 
im provem ent in the educational opportunities o f  African- 
A m erican pupils in this country, that would inevitably 
constitute a subtle —  but hardly insubstantial —  consideration 
for m em bers o f  this Court, which m ust decide whether there is 
adequate justification for altering its interpretation o f  the 
Religion C lauses.1 But the prem ise and conclusion are wrong.

'Taylor Petitioners are careful to eschew a direct appeal to 
this Court on such grounds: “Petitioners do not ask this Court to 
endorse parental choice as a matter of public policy, nor would it be 
proper for the Court to do so.” (Pet. Br. at 6). But they follow that 
statement immediately with the suggestion that if the Court 
determines that the First Amendment, properly construed, requires 
reversal, “the Court will affirm good-faith efforts directed toward the 
constitutional imperative of extending educational opportunities to 
children who need them desperately.” {Id. at 7 (emphasis added)). 
This is patent rhetoric and exhortation, not just a demonstration o f 
“context” (see id. at 25), and it requires a response.



6

I

The Voucher Program Involved In This 
Action Was Neither Designed, Nor Can It 
Operate, To Fulfill The Promise Of Brown 
For African-American Pupils In The 
Cleveland Public Schools, The Same Class 
Of Students Found By The Federal Courts 
To Have Suffered From Long-Maintained 
De Jure Segregation In The Cleveland Public 

Schools

Taylor Petitioners characterize this m atter as closely 
reflective o f  the them es and issues raised in Brown v. Board o f  
Education, 347 U.S. 483 (1954) (Br. at 49), analogizing the 
situation o f  A frican-A m erican children in this country prior to 
Brown —  subject to the m ost pernicious forms o f  official racial 
discrim ination —  w ith the lim itations that are im posed by the 
Constitution on public support for students to attend private 
schools.2 The analogy is not m erely m anipulative3 and

2“[In Brown], children were forced to travel past good 
neighborhood schools to attend inferior schools because the children 
happened to be black, today, many poor children are forced to travel 
past good schools to attend inferior schools because the schools 
happen to be private.” (Pet. Br. at 49) (emphasis added).

3For example, Taylor Petitioners mislead the Court when 
they represent that a greater proportion of voucher recipients are 
African-American students than are Cleveland public school 
students taken as a whole (Pet. Br. at 27, citing J.A. 215a-216a). 
The figures given on those pages come from a 1999 study o f the 
Cleveland voucher program, see J.A. 216a n.9, but the percentages 
reported in that study are based on surveys of a sample o f 505 
parents of voucher recipients and 327 parents of public school 
students, not upon an enumeration of all Cleveland public school and 
voucher program pupils. Joint Appendix, Vol. IV, at 965, 977,



7

shallow; it is insulting to the thousands o f  courageous African-

Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000). In fact, 
Taylor Petitioners themselves submitted an affidavit in support of 
their motion for summary judgment in the trial court reporting that 
“[sjlightly over 70% of the students in the Cleveland City School 
District are African-American” (Joint Appendix, Vol. II, at 468 f  11, 
Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000)), and this 
figure is supported by a separate study which found that 53 per cent 
o f the students in the voucher program were black, compared to 71 
per cent o f students in the public schools. Piet van Lier & Caitlin 
Scott, Fewer choices, longer commutes for black voucher students, 
Catalyst for Cleveland Schools, Oct/Nov 2001, 
<http://www.catalyst-cleveland.org/10-01/1001 extra4.htm> (visited 
Nov. 27, 2001).

It is also a distortion of the record in this case to suggest that 
most of the students participating in the Cleveland voucher program 
are attending “good” schools closer to their residences than 
“ inferior” public schools to which they would otherwise be assigned. 
Piet van Lier & Caitlin Scott, Fewer choices, longer commutes for 
black voucher students, CATALYST FOR CLEVELAND SCHOOLS, 
O ct/N ov 2001, <h ttp ://w w w .ca ta lyst-c leveland .o rg /10 - 
01/1001 extra4.htm> (visitedNov. 27,2001) (“The Cleveland school 
district is required to provide or pay for transportation of all voucher 
students who live more than a mile from the school they attend. 
About 75 percent of students using vouchers are eligible for district 
transportation service because they live a mile or more from the 
school they attend, estimates Mark Cegelski, planning manager for
the district’s transportation department__ [S]ome voucher students
are bused across the district on special runs that take as long as an 
hour-and-a-half and include as many as three voucher schools, says 
Cegelski. In contrast, the district’s return to neighborhood schools 
in 1998 after the desegregation order was lifted, has meant shorter 
bus rides for most public school students, transportation department 
officials says [j /c] .”).

http://www.catalyst-cleveland.org/10-01/1001_extra4.htm
http://www.catalyst-cleveland.org/10-01/1001_extra4.htm
http://www.catalyst-cleveland.org/10-01/1001_extra4.htm


8

A m erican parents and students who m ade this C ourt’s Brown 
decision becom e a reality, in the face o f  determ ined official and 
public resistance. M oreover, the Taylor Petitioners’ suggestion 
that the im pedim ent to public funding o f  pre-collegiate private 
educational institutions that is created by the Establishm ent 
C lause is the m ajor barrier today to providing equal educational 
opportunities for A frican-A m erican and other children o f  color 
in this country, is entirely unconvincing.

For m any years, African-A m erican students in the 
Cleveland public schools were the victim s o f  intentionally 
discrim inatory policies that isolated them  in racially segregated 
school facilities and lim ited their access to high-quality 
educational opportunities. Reed v. Rhodes, 422 F. Supp. 708, 
793 (N.D. Ohio 1976), remanded per curiam, 559 F.2d 1220 
(6th Cir. 1978), supplemental opinion on remand, 455 F. Supp. 
569 (N.D. Ohio 1978), a ff’d in relevant part and remanded on 
other grounds, 607 F.2d 714 (6th Cir. 1979), cert, denied, 455 
U.S. 935 (1980). See id., 422 F. Supp. at 793 (state 
requirem ents for m inim um  num ber o f  hours devoted to 
instruction per day waived in predom inantly black schools); 
Reed v. Rhodes, 662 F.2d 1219, 1226 (6th Cir. 1981), cert, 
denied, 455 U.S. 1018 (1982) (same); Reed v. Rhodes, 455 F. 
Supp. 546, 565 (N.D. Ohio 1978) (inferior facilities and 
educational offerings at predom inantly black high school), 
a ff’d, 662 F.2d 1219 (6th Cir. 1981), cert, denied, 455 U.S. 
1018 (1982); Reedv. Rhodes, 455 F. Supp. 569, 598-99 (N.D. 
Ohio 1978) (low er reading scores o f  black students are “m ainly 
a result o f  differing racial treatm ent” by school system), a ff’d, 
662 F.2d 1219 (6th Cir. 1981), cert, denied, 455 U.S. 1018 
(1982). Today, these students and their successors constitute 
m ore than 70%  o f  all pupils in the C leveland public school



9

district,4 but the “stubborn facts o f  history linger and persist,” 
Freeman, 503 U.S. at 492. Taylor Petitioners them selves 
docum ent the severe educational and operational problem s that 
beset the Cleveland public schools. See Pet. Br. at 25-26.

In these circumstances, the fact that som e African- 
A m erican parents in C leveland have taken advantage o f  the 
proffered opportunity for their children to attend non-public 
schools that are not sim ilarly stigm atized as ineffectual or 
burdened is hardly surprising. But the issue before the Court is 
not dependent on an assessm ent o f  the degree o f  benefit the 
program  offers the lim ited num ber o f individual African- 
Am erican and other C leveland students who have been able to 
take advantage o f  the chance to attend non-public schools. 
Rather, the issues in this case m ust be judged in the context o f  
a system erected by the Ohio Legislature that at once prom ises 
to breach a line o f  separation betw een sectarian schools and the 
public fisc that has long been a part o f  our nation’s basic 
constitutional fabric —  and also is inescapably inadequate to 
deliver on Brown's prom ise o f public education free o f  racial 
discrim ination, and o f  “equal educational opportunity” for 
m inority children, see 347 U.S. at 493 (“W here the state has 
undertaken to provide [an opportunity for public education], it 
is a right which m ust be available to all on equal term s.”).

On that score, the num bers are telling. N o m atter how  
great the level o f  interest, only a small fraction o f  the African- 
A m erican and other m inority students, whose only real option

4Joint Appendix, Vol. II, at 468 f  11, Simmons-Harris v. 
Zelman, 234 F.3d 945 (6th Cir. 2000) (Oct. 26, 1999 affidavit of 
Howard Fuller submitted by Taylor Petitioners to district court in 
support o f their motion for summary judgment). The lower figure 
cited in Pet. Br. at 27 (45.9 per cent) is based upon a sample of 327 
parents of students in Cleveland public schools in 1998, not a count 
of all public school pupils. See supra note 3.



10

is to attend the public schools o f  Cleveland, can be selected to 
receive scholarships to attend non-public facilities under the 
Legislature’s program . This is so despite the fact that the 
purpose o f  the program , according to Taylor Petitioners, is to 
help solve the m assive educational problem s in that city.5

U nder the voucher plan involved in this case, students 
w hom  a local superintendent concludes are eligible because 
they come from  a low-incom e fam ily are given a third priority 
in adm ission to  private schools, after “ [sjtudents who were 
enrolled in the school during the preceding year” and siblings 
o f  such students. The third priority preference operates only 
until students from  low-incom e fam ilies constitute 20 per cent 
o f  the total num ber o f  students in a particular grade —  as 
determ ined by enrollm ent figures for that grade in  the previous 
year. Once that proportion is reached, “ [a]ll other applicants 
residing anyw here,” including, presum ably, children from 
higher-incom e fam ilies (as w ell as those from  low-incom e 
fam ilies w ho were not adm itted under the th ird  priority 
category) are eligible to be selected by lottery to  receive a 
voucher. Ohio Re v . Code § 3313.977.

The results o f  this structure are not surprising. One 
report found that nearly 33 per cent o f  the students participating 
in the Cleveland voucher program  had previously attended 
private schools, while only 21 per cent had gone to public

5See Brian P. Gill, Michael Timpane, Karen E. Ross, 
and Dominic J. Brewer, Rhetoric Versus Reality: What We 
Know and What We Need to Know About Vouchers and 
Charter Schools xviii, 52,213-14 (Rand Corp. 2001), available at 
http://www.rand.org/publications/MR/MR1118 (visited Dec. 9, 
2001) (hereinafter cited as “RHETORIC VERSUS REALITY”) 
(Cleveland’s voucher program is an “escape valve” program, “i.e,, 
targeted to a smaller number of at-risk children.” “Such programs 
will not be the silver bullet that will rescue urban education.”).

http://www.rand.org/publications/MR/MR1118


11

schools in Cleveland before receiving vouchers. The rem aining 
46 per cent o f  participants came from  outside the C leveland 
district or enrolled as kindergartners —  and o f  these latter 
pupils, “at least 216, or 6 percent o f  the total receiving 
vouchers, were previously enrolled in preschool at private 
schools that are now  participating in the voucher program  . . . 
suggest[ing] that at least 39 per cent o f  the students receiving 
aid came from  a private school background.” Zach Schiller, 
Policy M atters Ohio, Cleveland School Vouchers: Where the 
Students Come From (2001), at 2-3 (available at h ttp :// 
w w w.policym attersohio.org) (visited Dec. 4, 2001).

Such lim ited efficacy is not atypical. W e are not aware 
o f  any voucher program  that provides sufficient resources to 
m ake it possible financially for all, or even m ost, pupils 
attending public schools in  large, urban systems w ho are from  
families o f  lim ited m eans to attend any private institution o f  
their choice.

N o one in the voucher debate suggests that vouchers 
w ould provide unlim ited choices. For exam ple, no one 
suggests that vouchers would cover the full cost o f  any 
tu ition  set by the private school. Instead, vouchers 
w ould provide lim ited em powerm ent that would free 
individuals who already enjoy advantage to m axim ize 
that advantage. Both logic and historical experience 
suggest that vouchers will exacerbate existing inequity.

M olly Townes O ’Brien, Private School Tuition Vouchers and 
the Realities o f  Racial Politics, 64 Tenn . L. Re v . 359, 404 
(1997) (footnotes omitted). Accord, Rhetoric versus 
Reality , supra note 5, at 145 (“Vouchers that fall short o f  
tuition costs will have m uch lower take-up rates among low- 
incom e fam ilies than will more generous vouchers”).

In short, the Legislature’s voucher program  m ay 
coincidentally offer some increased educational opportunities

http://www.policymattersohio.org


12

for the fortunate few  students selected by lot to participate in it, 
bu t it also represents a deliberate decision not to  focus the 
S ta te’s resources on the larger group o f  children whose 
educational circum stances are so severely lim ited.

The Court should, then, understand the “context” o f  this 
m atter w ith precision. The program  at issue is not one which 
offers any prom ise, or even hope, o f  achieving “equal 
educational opportunities” for the scores o f  thousands o f  
A frican-A m erican and other m inority students in  the Cleveland 
public schools. Instead, it is a device to open the doors for 
public support o f  pervasively sectarian pre-collegiate 
educational institutions while ignoring the desperate 
educational plight o f  the mass o f  A frican-A m erican and other 
m inority students for whose benefit Brown v. Board o f  
Education was brought and litigated.6

6It is particularly ironic for Taylor Petitioners to advance 
considerations o f unequal educational outputs by poor and minority 
students and a heavily poor and minority school system in support 
o f reversing the judgment below. Similar arguments have been 
consistently rej ected by this Court over the past generation and a half 
when they were advanced, not by private schools or their students, 
but by poor and minority parents and students themselves, whether 
in the school finance context, see San Antonio Independent School 
District v. Rodriguez, 411 U.S. 1 (1973), or in the school 
desegregation context, see, e.g., Missouri v. Jenkins, 515 U.S. 70 
(1995).



13

II

Private School Tuition Voucher Programs 
Such As The One Involved In This Case 
Contain The Seeds Of Educational 
Resegregation And Lack Safeguards To 

Prevent This Result

W hile the C leveland voucher program  is too lim ited to 
offer any realistic prom ise o f  affording equal educational 
opportunities to all o f  the city’s African-A m erican 
schoolchildren, nothing in Petitioners’ reading o f  the Religion 
Clauses w ould require Ohio to achieve the goal they ascribe to 
the program  in order to preserve its constitutionality. A t the 
same tim e, the voucher program  may —  especially if  its 
targeting provisions are relaxed by the state in the future —  
provide a vehicle for resegregating schooling in the Cleveland 
area along racial lines; and nothing in Petitioners’ reading o f  
the Religion Clauses w ould prevent Ohio from m odifying the 
program  in this direction. Thus, not only does the program  fail 
to deliver on Brown's prom ise o f  equal educational quality, but 
it raises the spectre o f  restoring the very evil against which 
Brown was directed: state-sponsored racial separation.

C leveland’s voucher program , lim ited as it m ay be at 
the present time, already has facilitated white student 
attendance at non-public schools in Cleveland in proportions 
that exceed their representation in the public system. See supra 
note 3 (white participation rate in voucher program s greater 
than white share o f  Cleveland public schools’ enrollment). 
None o f  the predom inantly white suburban school systems 
surrounding the city participate in the program. A nd the limits 
on tuition paym ent that the courts below  found had the p rimary 
effect o f  directing state support overw helm ingly toward 
sectarian institutions also serve to suppress m inority



14

enrollm ent, given the pow erful association betw een race and 
poverty attributable to this country’s long history o f  official 
racial discrim ination. See B rief for the N A A C P Legal Defense 
and Educational Fund, Inc. as Amicus Curiae in Support o f 
Respondents, Adarand Constructors, Inc. v. Mineta, 2000 U.S. 
Lexis 10814 (U.S. N ovem ber 27, 2001) (No. 00-730).

These operational characteristics o f  the voucher plan 
will only be accentuated and increased i f  the program  is 
expanded,7 especially if  the lim ited incom e guidelines and 
priorities that now  exist, see supra at 10, are relaxed in the 
fu ture,8 allowing the voucher program  to becom e as effective 
a resegregation tool as tuition grants could have been in the 
1950’s and 1960’s but for the rulings o f  this Court and lower 
federal courts.9

7See Rhetoric versus Reality, supra note 5, at xix 
(“[L]arge-scale choice programs (whether voucher or charter) are 
more likely to undermine school-level integration than are escape- 
valve vouchers that put low-income children in existing private 
schools.”).

%See id. at 174 (“In sum, these findings about parental 
preferences suggest that unconstrained choice in a voucher or charter 
program could lead to higher levels of stratification”).

9See Molly Townes O’Brien, 64 TENN. L. Rev. at 386 & 
n. 179 (citing Coffey v. State Educational Finance Commission, 296 
F. Supp. 1389 (S.D. Miss. 1969); Griffin v. State Board of 
Education, 296 F. Supp. 1178 (E.D. Va. 1969); Brown v. South 
Carolina State Board of Education, 296 F. Supp. 199 (D.S.C.), aff’d 
per curiam, 393 U.S. 222 (1968); Poindexter v. Louisiana Financial 
Assistance Commission, 275 F. Supp. 833 (E.D. La. 1967), aff’d, 389 
U.S. 571 (1968); Lee v. Macon County Board o f Education, 267 F. 
Supp. 458 (M.D. Ala. 1967)).



15

Parents o f  poor and m inority schoolchildren have no 
illusion that school reform  and educational quality are, in the 
first instance, matters lending them selves to jud icial resolution. 
But the judiciary (including specifically this Court) has played 
a critical role in addressing practices that perpetuate the effects 
o f  the racially discrim inatory policies o f  the past, including 
their im pact upon educational quality, c f  Freeman v. Pitts, 503 
U.S. at 492 (quality o f  education offered m inority students is 
appropriate factor to be considered in determ ining whether past 
vestiges o f  discrim ination had been elim inated to the extent 
practicable); Missouri v. Jenkins, 515 U.S. at 101 (“The basic 
task o f  the District Court is to decide whether the reduction in 
achievem ent by m inority students attributable to prior de jure  
segregation has been rem edied to the extent practicable”). This 
case presents another occasion on which the Court m ust 
provide such leadership.

LDF or the N A ACP represented the p lain tiff 
schoolchildren in the five cases that constituted Brown v. Board 
o f Education and m any o f  the m ajor cases aim ed at 
im plem enting Brown's prom ise, from  Cooper v. Aaron, 358 
U.S. 1 (1958) through this C ourt’s m ost recent desegregation 
decision, Missouri v. Jenkins, 515 U.S. 70 (1995). W hile we 
have won significant victories (including in Brown, Cooper, 
Green v. County School Board o f  New Kent County, 391 U.S. 
430 (1968), Swann v. Charlotte-Mecklenburg Board o f  
Education, 402 U.S. 1 (1971), Columbus Board o f  Education 
v. Penick, 443 U.S. 449 (1979), and Dayton Board o f  
Education v. Brinkman, 443 U.S. 526 (1979)), we and others 
seeking to integrate public schools w ithin the U nited States 
have also faced form idable obstacles. For example, this Court 
has lim ited the circumstances, m eans, and duration o f 
desegregation remedies. E.g., Milliken v. Bradley, 418 U.S. 
717 (1974); Board o f  Education o f  Oklahoma City Public 
Schools v. Dowell, 498 U.S. 237 (1991); Freeman v. Pitts, 503



16

U.S. 467 (1992); Missouri v. Jenkins, 515 U.S. 70 (1995). And 
in San Antonio Independent School District v. Rodriguez, 411 
U.S. 1 (1973), this Court foreclosed federal constitutional 
challenges to property tax-based school funding system s that 
produce severe resource inequality betw een w ealthier and 
poorer districts.

Currently, opponents o f  school desegregation do not 
stop at advocating further lim itations on the role o f  the 
judiciary; they argue that any consideration o f  race, even in the 
co n tex t o f  fac ilita ting  voluntary d eseg rega tion , is 
unconstitutional, see, e.g., Wessman v. Gittens, 160 F.3d 790 
(1st Cir. 1998); Tuttle v. Arlington County School Board, 195 
F.3d 123 (4th Cir. 1999); Eisenberg v. Montgomery County 
Public Schools, 197 F.3d 123 (4th Cir. 1999), cert, denied, 146 
L. Ed. 2d 312 (2000), and even in the case o f  a school system 
that was long operated on a de jure  segregated basis. See 
Cappachione v. Charlotte-Mecklenburg Schools, 57 F. Supp. 
2d 228 (W .D.N.C. 1999), a ff’d in part and rev ’d  in part en 
banc sub nom. Belk v. Charlotte-Mecklenburg Board o f  
Education, 2001 U.S. App. LEXIS 10712 (4th Cir. 2001).

Ironically, in the present cases, the Petitioners invoke 
race, by referring to the “sacred prom ise” o f  Brown, to support 
the constitutionality o f  a voucher program  that, as discussed 
above, offers not integration, but further racial separation in 
publicly funded education.10

10 Cf Griffin v. State Board of Education, 296 F. Supp. at 
1181 (emphasis in original):

To repeat, our translation of the imprimatur placed 
upon Poindexter by the final authority is that any assist 
whatever by the State towards provision o f a racially 
segregated education, exceeds the pale o f tolerance 
demarked by the Constitution. In our judgment, it follows,



17

This Court should act to prevent the establishm ent o f  
separate private, predom inantly white educational system s and 
public, predom inantly m inority educational system s by 
rejecting the Taylor Petitioners’ invocation o f  Brown.

that neither motive nor purpose is an indispensable element 
of the breach. The effect of the State’s contribution is a 
sufficient determinant, with effect ascertained entirely 
objectively.



18

Conclusion

For the reasons given above, as well as those urged by 
Respondents, the judgm ent below  should be affirm ed

Respectfully submitted,

Elaine R. Jones
Kimberly West-Faulcon 
Naacp Legal Defense and 

Educational Fund, Inc. 
Suite 1480
1055 Wilshire Boulevard 
Los Angeles, CA 90017 
(213)975-0211

Dennis Courtland Hayes 
General Counsel 
National Association for 

the Advancement of 
Colored People

Director-Counsel 
Theodore M. Shaw 

*Norman J. Chachkin 
James L. Cott 
Dennis D. Parker 
EliseC.B oddie 
Lia B. Epperson 
Derek R.B. Douglas 
Damon T. Hewitt 
Chinh Q. Le

Naacp Legal Defense and 
Educational Fund, Inc.

99 Hudson Street, 16th Floor 
4805 Mt. Hope Drive, 5th Floor New York, NY 10013-2897 
Baltimore, MD 21215 (212)965-2200
(410)486-9191

*Counsel o f Record 
Counsel for Amici Curiae