Full opinion text
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. 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. Of the 3,761 students enrolled in the Program, 3,632, or over 96%, are enrolled in sectarian schools. P1.J.A.V01. 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. 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. iH if; 'Jfi s]< % 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. Ill, Ex. I, Tab 26. Additionally, all students are required to participate in religion classes, which are taught daily, and to attend all religious, liturgical, and para-liturgical 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. Ill, 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. Stanis-laus 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-Catholie students attending [the school] are expected to be a part of the religion program and activities throughout the year.” Id. Likewise, students and their families “are expected and obligated to attend and participate in the week-end liturgy.” Id. The philosophy of education at St. John Nottingham Lutheran School is: It is our belief that the one cardinal objective of education to which all others point is to develop devotion to God as our Creator, Redeemer, and Sanctifier, whose love for us moves us to show in our every act, thought, word and desire, our love for Him. “The Fear of the Lord is the Beginning of Knowledge.” Proverbs 1:7. St. John Nottingham Handbook at 2, Pl. J.A. vol. Ill Ex. I, Tab 34. Religion is taught at St. John Nottingham Lutheran through weekly worship chapel services, Bible studies, catechism, church history, confirmation instruction and memory. Additionally, the school teaches reading, mathematics, spelling, language, social studies, science and handwriting “with a Christ-centered approach.’’ Id. at 14 (emphasis in original). At St. Mark Lutheran School: The primary focus ... is on our Lord and Savior, Jesus Christ. In all of our goals, Jesus Christ must be preeminent. Because of our commitment to that focus and to our beliefs and philosophy, it is highly inconsistent for any parents to send a child to this school if they: • Are not a Christian and/or are not interested in learning about Jesus Christ • Are not living a Christian life or willing to learn how to lead such a life • Are not a supporting part of a Christian congregation through worship and sharing of time and talents St. Mark Handbook at 2, PL J.A. vol. Ill, Ex. I, Tab 35. All students at St. Mark are required to participate in daily religion classes and to “be instructed in the basic teachings of God’s Word through an organized program of Christian education.” Id. at 28. Each day begins with a classroom devotion and prayer and the school day is ended with classroom prayer. Id. Children also attend weekly chapel services. Id. II. PROCEDURAL HISTORY Case No. 1:99 CV 1740 was filed on July 20, 1999, by Plaintiffs Doris Simmons-Harris, the parent of a minor child enrolled in the Cleveland City School District for the 1999-2000 school year; Marla Franklin, a teacher in the Lorain City School District; and Steven Behr, pastor of Our Savior/Nuestro Salvador Church in Lorain, Ohio, against Defendant Dr. Susan Tave Zelman, in her official capacity as Superintendent of Public Instruction for the Ohio Department of Education. Case No: 1:99 CV 1818 was filed on July 29, 1999, by Plaintiffs Sue Gatton, chairperson of Citizens Against Vouchers; Mary Murphy, a teacher in the Cleveland City School District; Michael Debose, a pastor in Cuyahoga County, Ohio; Cheryl Debose and Glenn Altschuld, Ohio taxpayers; and Deidra Pearson, the parent of a child enrolled in the Cleveland City School District against Defendants Dr. Susan Tave Zelman, in her official capacity as Superintendent of Public Instruction for the Ohio Department of Education; the State of Ohio, through its General Assembly, Governor and other agents; and Sandra Berry, in her official capacity as Program Administrator for the Ohio Pilot Scholarship Program. Two groups have intervened as defendants in both cases. The first group consists of parents of students who have been enrolled, or seek to enroll, in private schools under the Program. That group includes Senel Taylor, parent of a ten-year old child who has attended private school under the Program for the last two years; Johnnietta McGrady, parent of two children who seek to attend a private school under the Program; Christine Suma, parent of three children who have attended private school under the Program and one child who, at the time this action was filed, was on a waiting list to attend private school under the Program; Arkela Winston, parent of two children who have attended private school under the Program; and Amy Hudock, parent of a child who has attended private school under the Program for the past three school years. The second group of intervenors includes nonpublic schools and parents of students who wish to participate in the Program. That group includes Hanna Perkins School, Our Lady of Peace School, Westpark Lutheran School, Lutheran Memorial Association of Cleveland, Ivy Chambers, Carol Lambert, and Delories Jones. As is the case in the instant matter, Doris Simmons-Harris and Sue Gatton were the lead plaintiffs in the state court litigation challenging the 1995 program. The Plaintiffs challenged the 1995 program as a violation of the Establishment Clause of the First Amendment, and under several provisions of the Ohio Constitution. The state trial court consolidated the two cases before it. On cross-motions for summary judgment, the court concluded that the 1995 program violated neither the United States Constitution nor the Ohio Constitution. The Plaintiffs then appealed the trial court’s decision. In concluding that the 1995 program violated the Establishment Clause as well as one provision of the Ohio Constitution, the appeals court reversed the trial court’s decision. Thereafter, the Defendants appealed that decision to the Ohio Supreme Court. The 1995 program was struck down by the Ohio Supreme Court in Simmons-Harris v. Goff, 86 Ohio St.3d 1, 711 N.E.2d 203 (1999). The court held that the program was enacted in violation of Section 15(D), Article II, of the Ohio Constitution in “that creation of a substantive program in a general appropriations bill violates the one-subject rule” found in that provision. Id. at 216. The Ohio Supreme Court also addressed the federal constitutional issue raised in that case, whether the pilot program violated the Establishment Clause of the First Amendment. It concluded, contrary to the holding of the Ohio Court of Appeals, that it did not. The Voucher Program was enacted by the Ohio Legislature on June 29, 1999, as part of the Education Budget Bill. See Ohio Rev.Code § 3313.974-3313.979 (Anderson 1999). It is, in all respects pertinent to this litigation, the same as the original pilot scholarship program enacted by the Legislature in 1995, which was operative for three successive school years. As detailed above, the first challenge to the 1999 Program, case no. 1:99 CV 1740 was filed on July 20, 1999, and the second challenge, case no. 1:99 CV 1818, was filed on July 29,1999. On August 13, 1999, a preliminary injunction hearing was conducted in which the court entertained oral argument from counsel representing Plaintiffs in both cases, the State, and both groups of Intervening Defendants. After considering the submissions on behalf of all the parties and the arguments of counsel, this court issued its twenty-eight page order on August 24, 1999, granting Plaintiffs’ Motion for a Preliminary Injunction. On August 27, 1999, the court granted a limited stay of its order enjoining the Program. The stay was made applicable only to those students who were enrolled in the 1995 program during the previous academic year and was granted only for one semester or until the court rendered a final decision on permanent injunctive relief, whichever first occurred. In light of the limited stay, the court set an expedited discovery and trial schedule. The court conducted telephone conferences with counsel for all parties on September 3 and 17, 1999, in order to make changes as needed to the discovery and trial schedules set by the court in its August 27, 1999 order. As a result of those conferences, the following discovery schedule was established. On September 10, 1999, counsel for all parties were to exchange proposed factual stipulations and requests for documents. Prior to September 17, 1999, counsel for all parties were ordered to attempt to agree upon the factual record which would serve as a basis for the consideration of any summary judgment motions to be filed. In the event that counsel were unable to agree upon a factual record, they had until September 22, 1999, to serve formal discovery requests and notices of deposition. Written discovery responses were due October 8,1999. All remaining discovery was to be concluded by October 29, 1999. The schedule for the briefing of dispositive motions was set as follows: (a) the dispositive motion deadline was November 1, 1999; (b) responses were due November 15, 1999; and (c) replies were due November 23, 1999. As in the court’s August 27, 1999 order, trial was scheduled for December 13,1999, at 9:00 a.m. On August 24, 1999, the State appealed this court’s order granting Plaintiffs’ Motion for Preliminary Injunction to the Sixth Circuit Court of Appeals. Both Intervening Defendants also filed notices of appeal. All Defendants requested a stay of this court’s preliminary injunction pending appeal. After this court’s August 27, 1999 order granting a limited stay of its preliminary injunction, all Defendants filed revised briefs with the Sixth Circuit, appealing the preliminary injunction with regard to students who were new to the Voucher Program. While the aforementioned motions were pending before the Sixth Circuit, the State filed a motion for a stay of the preliminary injunction with the United States Supreme Court. On November 5, 1999, by a vote of 5-4, the Supreme Court granted the State’s motion. The complete text of that order read: Treating the application as a request for a stay of the preliminary injunction, the application for stay presented to Justice Stevens and by him referred to the Court is granted. The preliminary injunction entered by the United States District Court for the Northern District of Ohio, case No. 99 CV 1740, on August 24, 1999, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Sixth Circuit. Zelman, Superintendent of Pub. Instruction, et al. v. Simmons-Harris, Doris, et al., No. 99A320, — U.S. -, 120 S.Ct. 443, — L.Ed.2d - (U.S. Nov.5, 1999). On November 15, 1999, the Sixth Circuit entered an order, wherein it concluded that the Supreme Court’s decision granting the State’s motion for a stay rendered moot the Defendants’ motions for stay pending in that Court. In light of the expedited schedule set by this court, the Sixth Circuit placed all appeals in this matter in abeyance pending this court’s final determination of the case. III. SUMMARY JUDGMENT STANDARD Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law .... Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein .... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943-44 (6th Cir.1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most civil cases the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252, 106 S.Ct. at 2512. Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Moreover, “the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C.Cir.1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D.Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id. IV. THE ESTABLISHMENT CLAUSE A. History In promulgating the First Amendment, the framers of the Bill of Rights sought to protect the colonists’ right to be free from government inculcation of the theologies and doctrines of a faith to which they did not subscribe. James Madison, one of the authors of the First Amendment, feared that without such protection, the risk of governmental oppression intensified: “Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.” James Madison to Thomas Jefferson, October 17, 1788, reprinted in The Essential Bill of Rights 326 (Gordon Lloyd et al. eds., University Press of America 1998) (emphasis in original). To Madison, the freedom to believe and practice the religion of one’s choice was a fundamental right and was central to a bill of rights. In his famous Memorial and Remonstrance in which he urged the State of Virginia to reject legislation which would financially support the propagation of Christianity as the state religion, Madison voiced his opinion on the proper relationship between government and religion: “[A] Government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any sect, nor suffering any Sect to invade those of another.” James Madison’s Memorial and Remonstrance, June 20, 1785, reprinted in The Essential Bill of Rights, supra, at 228. The basis for his belief that the two should remain separate was his fear of what would happen to citizens if the government were to use laws to regulate their beliefs: The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish, with the same ease, any particular sect of Christians, in exclusion of all other sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever? Id. at 226. Thomas Jefferson’s convictions and concerns mirrored those of Madison. In his Statute of Religious Liberty, he spoke out against the dangers of requiring citizens to support a faith which was not their own: “[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his .contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness .... ” Jefferson’s Statute of Religious Liberty, reprinted in The Essential Bill of Rights, supra, at 231. Madison’s and Jefferson’s fears and concerns are reflective of those which resulted in the passage of the Establishment Clause — the first clause of the First Amendment of the U.S. Constitution. Its words are simple enough: “Congress shall make no law respecting an establishment of religion .... ” Since its inception, though, the Establishment Clause has presented some of the most difficult questions of interpretation and application faced by the courts. As the Supreme Court has stated, “in many of these decisions ‘we have expressly or implicitly acknowledged that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.’ ” Mueller v. Allen, 463 U.S. 388, 393, 103 S.Ct. 3062, 3065-66, 77 L.Ed.2d 721 (1983) (quoting Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971)). While Madison and Jefferson may have espoused a belief in a firm wall between church and state, “a hermetic separation of the two is an impossibility [the Court] has never required.” Roemer, III v. Board of Pub. Works of Maryland, 426 U.S. 736, 746, 96 S.Ct. 2337, 2344, 49 L.Ed.2d 179 (1976). The Supreme Court has “recognize[d] that sectarian schools perform secular, educational functions as well as religious functions, and that some forms of aid may be channeled to the secular without providing direct aid to the sectarian.” Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 775, 93 S.Ct. 2955, 2967, 37 L.Ed.2d 948 (1973). It is now clearly established that not every law which confers a benefit on a religious institution violates the Constitution. Some which confer only “indirect,” “remote” or “incidental benefits” have been found to be constitutional. See, e.g., Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). While line drawing has been difficult in actual cases, a brief examination of some of the Supreme Court’s Establishment Clause decisions provides a useful background for assessing the constitutionality of the Voucher Program. The Court has approved tax deductions for the costs of bus transportation by students, regardless of whether they attended public or private school, including parochial schools. Id. It also has approved the provision of textbooks at parochial schools when textbooks were not provided to students on the basis of whether they attended public or private school. Board of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). Until recently, the Court held that public employees could not provide instruction in secular subjects, such as giving remedial and accelerated instruction on the premises of religious institutions. See, e.g., Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985), overruled by Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985), overruled by Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975). However, the Court reversed itself on this issue in Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). The Court has generally held that a government cannot provide scholarship assistance to students which supports religious instruction or indoctrination. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948. However, it has approved of scholarship assistance where the aid to students is provided as part of a program made generally available without regard to the public-nonpublic or sectarian-nonsectarian nature of the schools to be benefitted. In such circumstances, aid ultimately supports the educational program of a religious institution only as the result of the private choice of the aid recipient. Consequently, there is no religious indoctrination attributable to the government. The Court has also found that the eligibility criteria under this type of program are not such as to influence the recipient’s choice of whether to attend a sectarian or nonsectarian institution. Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986); Agostini, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391. B. The Applicable Standard in Establishment Clause Cases Before reaching the merits of the parties’ respective claims, it is necessary to identify the standard under which these claims are properly analyzed. The applicable test used to analyze Establishment Clause challenges is grounded in the principles set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2125, 29 L.Ed.2d 745 (1971). In Lemon, the Supreme Court established the following three-part test: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion. Id. at 612-13, 91 S.Ct. at 2111 (citations omitted). If the challenged legislation fails to meet any part of this test, it violates the Establishment Clause. While the Lemon test is generally accepted as the cornerstone of Establishment Clause analysis, limits on its effectiveness in analyzing the myriad of factual scenarios that arise in this area of the law have been recognized. See Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 2873, 37 L.Ed.2d 923 (1973) (reasoning that the Lemon test provides “no more than [a] helpful signpost” in analyzing Establishment Clause challenges.) Despite its perceived limitations, the Supreme Court has consistently applied this test in Establishment Clause challenges. See Mueller, 463 U.S. at 394, 103 S.Ct. at 3066; Witters, 474 U.S. at 485, 106 S.Ct. at 748. Indeed, in Agostini, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391, the Supreme Court recently reaffirmed the importance of the Lemon test in Establishment Clause cases. It confirmed the need to ascertain whether a law has a secular purpose and whether it has the effect of advancing religion, but altered the test’s analytical structure by concluding that the “entanglement” prong should be considered as an aspect of the “effects” inquiry. In collapsing the Lemon test from a three-prong to a two-prong inquiry, the Agostini Court also divided the second prong of the Lemon test into three specific sub-parts. According to Agostini, challenged governmental aid passes constitutional muster if it does not: “result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement.” Id. at 234, 117 S.Ct. at 2016. As discussed infra, in clarifying the “effects” prong of the Lemon test, the Court did not substantially alter the analysis to be applied in Establishment Clause challenges to programs in which the government provides funding that directly aids the educational function of religious schools. The analysis in those cases under the first and second prongs of the test is still grounded in the principles set forth in Lemon and in cases applying the Lemon test. Plaintiffs contend that the Voucher Program is unconstitutional under Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, because it is factually indistinguishable from the tuition reimbursement program struck down in that case. They argue that the Voucher Program has the impermissible effect of advancing religion, as did the program at issue in Nyquist. Defendants, on the other hand, argue that the Voucher Program is factually dissimilar from the program at issue in Nyquist and that this case should be governed by more recent Supreme Court cases in which the Court has found programs challenged under the Establishment Clause to be constitutional. In Section V, the court will review Nyquist and assess whether that case serves as precedent for this one and if so, whether the Voucher Program violates the Establishment Clause, as did the program in Nyquist. In Section VI, it will address Defendants’ arguments that cases subsequent to Nyquist suggest there are meaningful distinctions between that case and this one. V. THE VOUCHER PROGRAM UNDER NYQUIST A. Nyquist In Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973), the Supreme Court found unconstitutional a New York State program intended to provide assistance, in several different forms, to nonpublic elementary and secondary schools. 'Id. The program contained three sections, only the second of which is directly relevant to the instant case. The first established direct money grants from the State to nonpublic, nonprofit elementary or secondary schools serving a high concentration of pupils from low-income families and was to be used for the maintenance and repair of school facilities. Id. at 762, 93 S.Ct. at 2960. The second section was a tuition grant program, which provided for partial tuition reimbursements to low-income parents whose children attended elementary or secondary nonpublic schools. Id. at 764, 93 S.Ct. at 2961. The last section gave some limited state income tax relief to parents who did not qualify for reimbursement grants. Id. The tuition reimbursement program in Nyquist applied to parents of children who attended all private schools, not just private, sectarian schools. The reimbursement grants were limited to $50 for each grade school child and $100 for each high school child. Id. Only parents with an annual taxable income of less than $5,000 qualified for reimbursement. Id. In order to receive payment, a parent was required to submit a verified statement to the Commissioner of Education containing a receipted tuition bill. Reimbursements by the State could not exceed 50% of the tuition paid by the parents. Id. Nearly 20% of New York State’s elementary and secondary population attended over 2,000 nonpublic schools, and approximately 85% of these schools were church-affiliated. Id. at 768, 93 S.Ct. at 2963. While no detailed factual record was developed in the underlying cases, the Nyquist Court noted that several pertinent generalizations could be made about the benefitted schools. The qualifying institutions could incorporate a number of religious characteristics, including: (a) impos[ition of] religious restrictions on admissions; (b) requiring] attendance of pupils at religious activities; (c) requiring] obedience by students to the doctrines and dogmas of a particular faith; (d) requirfing] pupils to attend instruction in the theology or doctrine of a particular faith; (e) [that the school is an] integral part of the religious mission of the church sponsoring it; (f) [that the school] ha[s] a substantial purpose the inculcation of religious values; (g) imposition of] religious restrictions on faculty appointments; and (h) imposition of] religious restrictions on what or how the faculty may teach. Id. at 768, 93 S.Ct. at 2963 (quoting Committee for Pub. Educ. and Religious Liberty v. Nyquist, 350 F.Supp. 655, 663 (S.D.N.Y.1972)). However, the Court made clear that “the characteristics of individual schools [could] vary widely from [this] profile.” Id. Applying the Lemon test, the Court first found that the tuition grant program easily passed the secular purpose test. The articulated purposes of the program were to promote pluralism and diversity among New York’s public and nonpublic schools and to alleviate the concern that the State’s overburdened public school system would suffer significant harm if a large portion of children who had been attending nonpublic schools decided to return to the public schools. Under the “effects” prong of the Lemon test, the Supreme Court found the tuition reimbursement program, “designed to allow direct, unrestricted grants of $50 to $100 per child ... as reimbursement to parents in low-income brackets who send their children to nonpublic schools, the bulk of which is concededly sectarian in orientation,” violated the Establishment Clause of the First Amendment. Id. at 780, 93 S.Ct. at 2969. There was no doubt, held the Supreme Court, that such grants “could not, consistently with the Establishment Clause, be given directly to sectarian schools .... ” Id. The defendants argued that the program should be saved because the aid was delivered to the parents and was not given directly to the benefitted schools. Id. at 781, 93 S.Ct. at 2969. As support, they maintained that New York’s tuition reimbursement program was similar to programs upheld by the Court in Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and Board of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). In Everson, the Court upheld tax deductions for parents who expended bus fare for children who attended religious schools. The Allen Court upheld the furnishing of text books for children who attended parochial schools. In both cases, grants went directly to parents, and not to schools. The Nyquist Court rejected the notion that the tuition deduction program was consistent with the Establishment Clause simply because aid went to the parents and not directly to the schools. As the Court explained, whether aid goes through parents or is given directly to schools is only one of many factors to be considered in determining whether or not a given program is unconstitutional. To clarify, the Court detailed the reasons why the programs upheld in Everson and Allen were significantly different from the nature of the tuition grants involved in Ny-quist: In Everson, the Court found the bus fare program analogous to the provision of services such as police and fire protection, sewage disposal, highways, and sidewalks for parochial schools. Such services, provided in common to all citizens, are ‘so separate and so indisputably marked off from the religious function,’ that they may fairly be viewed as reflections of a neutral posture toward religious institutions. Allen is founded upon a similar principle. The Court there repeatedly emphasized that upon the record in that case there was no indication that textbooks would be provided for anything other than purely secular courses. Id. at 781-82, 93 S.Ct. at 2970 (citations omitted). Contrary to the grants at issue in Ever-son and Allen, the tuition grants in Ny-quist were not restricted to supporting only secular aspects of a school’s educational program. Id. at 783, 93 S.Ct. at 2971. There was no attempt to separate secular from religious educational functions and to ensure that the monies provided by the State supported only the former. Concluding that the program had the impermissible effect of advancing religion, the Court stated: Indeed, it is precisely the function of New York’s law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid — to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools — are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions. Id. Because the Court found that the tuition grant program at issue in Nyquist had the primary effect of advancing religion, it did not address the third prong of the Lemon test, whether the program fostered excessive entanglement between church and state. Before analyzing the Voucher Program under Nyquist, it is important to note that the Nyquist Court found it significant that: [bjecause of the manner in which we have resolved the tuition grant issue, we need not decide whether the significantly religious character of the statute’s beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited. Thus, our .decision today does not compel, as appellees have contended, the conclusion that the educational assistance provisions of the ‘G.I. Bill’ impermissibly advances religion in violation of the Establishment Clause. Id. at 782 n. 38, 93 S.Ct. at 2970 n. 38 (citations omitted). This language has been often-quoted in post-Nyquist Establishment Clause cases in which the Court has concluded that the challenged programs were constitutional. As discussed below, Defendants argue that this case should be governed by these post-Nyquist cases because the Voucher Program is the type of program contemplated by the Court in footnote 38. B. The Voucher Program 1. The Purpose of the Program As in Nyquist, there is no question that the Voucher Program passes the secular purpose prong of the Lemon test. Indeed, as previously noted, Plaintiffs do not challenge the secular purpose of the legislation. Similar to Nyquist, the Program seeks to provide nonpublic school alternatives primarily to low-income students for acceptable reasons. Nevertheless, “the propriety of a legislature’s purposes may not immunize from further scrutiny a law which ... has the primary effect that advances religion.” Id. at 774, 93 S.Ct. at 2966. Thus, the next inquiry is whether the Voucher Program has the effect of advancing religion. 2. The Effect of the Program The Voucher Program is clearly similar to the tuition reimbursement program in Nyquist in two respects. First, while both public and private schools are eligible, only private schools have chosen to participate in the Program, and the vast majority of them are parochial. Like Nyquist, where 85% of the benefited schools were parochial, over 82% of the schools participating in the Voucher Program are religiously affiliated. Thus, as in Nyquist, the “bulk of’ the aid under the Voucher Program flows to schools which are “sectarian in orientation.” Id. at 780, 93 S.Ct. at 2969. Second, as in Nyquist, the Voucher Program provides unrestricted tuition grants to parents whose children are eligible for the Program and who attend qualifying schools. Like the program in Nyquist, there “ ‘has been no endeavor to guarantee the separation between secular and religious educational functions and to ensure the State financial aid supports only the former.’ ” Id. at 783, 93 S.Ct. at 2971-72 (quoting Lemon, 403 U.S. at 613, 91 S.Ct. at 2111). Defendants, however, argue that the programs are dissimilar in several ways which would require that the Voucher Program be upheld whereas the Nyquist program was struck down. First, the Intervening Defendants argue that even if the large majority of schools participating in the Voucher Program is sectarian, the Program is constitutional because the primary focus of the schools is secular education. They maintain that Voucher schools actually educate their students better than do public schools, asserting that “[i]f ... Scholarship children receive a superior secular education and become better citizens because of their parent’s school choice, the primary effect of the Program is secular rather than religious.” Def. Hanna Perkins Motion at 4-12. The Nyquist Court squarely addressed this argument. Focusing on the term “primary,” defendants there asserted that the Court had to decide whether the New York law had the “primary effect” of subsidizing religion or promoting the secular objectives the Court found to be legitimate. In holding that a finding of the former did not necessarily preclude a finding of the latter, the Court said: “We do not think that such metaphysical judgments are either possible or necessary. Our cases simply do not support the notion that a law found to have a ‘primary’ effect to promote some legitimate end under the State’s police power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion.” Id. at 783 n. 39, 93 S.Ct. at 2971 n. 39. Thus, even if it could be demonstrated that students participating in the Voucher Program receive a superior education to children in the Cleveland Public Schools, this fact does not obviate this court’s duty to further question whether the Program also has the direct and immediate effect of advancing religion. Second, citing to only several of the most religiously restrictive characteristics in the “profile” developed by the Nyquist Court, Defendants seek to distinguish that case by arguing that the schools participating in the Voucher Program do not exhibit each and every characteristic set forth in the Nyquist profile. Specifically, they argue that whereas the benefitted schools in Nyquist placed religious restrictions on admission, over sixty percent of the students in the Voucher Program are not of the same faith as their school’s sponsor. There is nothing in the Nyquist opinion to suggest that a program of this type runs afoul of the Establishment Clause only when the schools have the exact profile as in that case. The Court made clear that not each of the schools fit the profile, explicitly stating that “the characteristics of individual schools may vary widely from [the] profile.” Id. at 768, 93 S.Ct. at 2963. More importantly, the Nyquist Court clearly did not rely on the fact that the schools in Nyquist were “extremely,” as opposed to only “moderately” or “mildly” religious in reaching its conclusion. The relevant inquiry was whether schools were sectarian or nonsectarian. The Nyquist Court made this determination in part by reviewing the New York State Education Department records to identify whether such records listed a given school as church-affiliated. Id. at 768 n. 23, 93 S.Ct. at 2963 n. 23. The Court’s conclusion that the vast majority of benefitted schools were sectarian was central to its finding that the program in Nyquist had the impermissible effect of advancing religion. Finally, Defendants contend that because of the religious restrictions on admission, public school pupils could not enroll in the sectarian schools at issue in Nyquist. They maintain that this meant the sectarian schools in Nyquist received more money to educate their existing pupils in the same manner, thus acquiring extra funds to spend on religious icons, clergy salaries and the like. On the other hand, they argue, Voucher schools receive no such extra money because they must accept new, financially deprived children who are below grade level and need significant remedial assistance. According to Defendants, educating students with such needs costs the schools more than the payment they receive under the Voucher Program. See, e.g., Def. Hanna Perkins Reply at 3; Def. Hanna Perkins Motion at 17. Furthermore, Defendants assert that the group who receives any “extra” money is parents, who are likely to spend it on “essential food, utilities or clothing.” Def. Hanna Perkins Reply at 3-4. Defendants’ argument is not well-taken. The Nyquist program did not increase the amount of tuition received by the schools; it merely changed the source from which the tuition originated. That is, the State relieved the parents of their existing tuition bills. Moreover, Defendants’ argument incorrectly assumes that the money the Voucher schools receive as a result of the tuition grants will be used only for secular purposes. However, the tuition grants under the Voucher Program, like those in Nyquist, are unrestricted and can be used for any purpose a school finds necessary. That the grants do not fully compensate the schools for the cost of educating the children they accept under the Program does not alter this fact. Additionally, it is irrelevant that the funds in this case will benefit the parents of Voucher students. Parents clearly benefitted under the Nyquist program, as they do here. Nevertheless, as in Nyquist, the court must evaluate whether the Program also benefits the participating schools in such a way as to impermissibly foster religion. Taken together, the fact that the Voucher Program overwhelmingly benefits sectarian schools and that the grants provided under the Program are not restricted to supporting only secular functions of a participating school’s educational program make it indistinguishable for Establishment Clause purposes from the tuition reimbursement program in Nyquist. As in Nyquist, the funds provided under the Voucher Program directly aid the religious function of participating schools. In fact, the state aid under the Voucher Program provides an even more direct benefit to religious schools than did the aid in Ny-quist. Even though parents must endorse their checks to the schools, the aid is given directly to participating schools. It can fairly be said that because the Program does not make aid available generally without regard to the nature of the institution benefitted, the Voucher Program results in government-sponsored religious indoctrination. Indeed, the Court’s ultimate analysis of the Nyquist, program under the “effects” test can be applied in this case by merely substituting “Ohio” for “New York”: “[I]t is precisely the function of [Ohio’s] law to provide assistance to private schools, the great majority of which are sectarian .... [T]he effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.” Id. at 783, 93 S.Ct. at 2971. C. Nyquist Has Not Been Overruled To the extent that Defendants argue implicitly in their motions for summary judgment, as they argued explicitly in their oppositions to Plaintiffs’ motions for a preliminary injunction, that Nyquist has been “undermined” by a series of subsequent Supreme Court cases and should not be followed, the court must reject the argument. Since the court finds that Ny-quist is directly relevant precedent, it is “constrained to follow it.” Simmons-Harris v. Zelman, 54 F.Supp.2d 725, 735 (1999). In deciding to overrule one of its own precedents, the Supreme Court recently stated in Agostini: We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that “if a precedent to this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini, 521 U.S. at 237, 117 S.Ct. at 2017 (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989))(emphasis added). Thus, it is not within the power of this court to declare that a case decided by the United States Supreme Court should be overruled. VI. ESTABLISHMENT CLAUSE JURISPRUDENCE SINCE NYQUIST As previously discussed, the Nyquist Court did not have before it the type of case contemplated in footnote 38, wherein funds are “made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited.” Nyquist, 413 U.S. at 782 n. 38, 93 S.Ct. at 2970 n. 38. However, the Court was later confronted with just such a scenario in several cases following Ny-quist. The dispute in the instant matter revolves around Defendants’ contention that the Voucher Program fits within footnote 38 and cases following Nyquist. Accordingly, the court turns to a discussion of whether recent cases suggest there is a meaningful distinction between the program struck down in Nyquist and that which is being challenged in this case. A. Mueller In Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983), the U.S. Supreme Court upheld the constitutionality of a Minnesota statute which allowed state taxpayers to deduct, when computing their state income tax, certain tuition, transportation and educational expenses actually incurred in sending their children to elementary or secondary schools. It found that the program complied with each of the three parts of the Lemon test. The court determined that the program had a secular legislative purpose, stating: A state’s decision to defray the cost of educational expenses incurred by parents — regardless of the type of schools their children attend — evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a state’s efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the state’s citizenry is well educated. Similarly, Minnesota, like other states, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and non-sectarian. By educating a substantial number of students such schools relieve public schools of a correspondingly great burden — to the benefit of all taxpayers. Id. at 395, 103 S.Ct. at 3067. The Court also concluded that the program did not have the primary effect of advancing religion. First, it explained that the tax deduction was one of many provided under the Minnesota tax laws and that its: decisions consistently have recognized that traditionally ‘[^legislatures have especially broad latitude in creating classifications and distinctions in tax statutes,’ in part because the ‘familiarity with local conditions’ enjoyed by the legislators especially enables them to ‘achieve an equitable distribution of the tax burden.’ Under our prior decisions, the Minnesota legislature’s judgment that a deduction for educational expenses fairly equalizes the tax burden of its citizens and encourages desirable expenditures for educational purposes is entitled to substantial deference. Id. at 396, 103 S.Ct. at 3067-68 (citations omitted). According to the Court, it was especially significant that the deduction was available for education expenses incurred by all parents, whether their children attended public schools, nonsectarian private schools or sectarian private schools. Id. at 397, 103 S.Ct. at 3068. The Court found this aspect of the statute, as well as others, to be “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.” Id. at 398, 103 S.Ct. at 3068. The Court found the tax deduction involved to be more like the type of program contemplated in footnote 38 of Nyquist, wherein the Court “intimated that ‘public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited,’ might not offend the Establishment Clause.” Id. (citation omitted). While acknowledging that “financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children,” central to the Court’s reasoning was the fact that the assistance to parochial schools was channeled through parents rather than directly provided to the schools. Id. at 399, 103 S.Ct. at 3069. In Mueller, the nature of the program at issue necessarily incorporated several significant steps between the aid provided by Minnesota and the benefit religious schools might indirectly receive from such aid. Although the Court did not explicitly ■ delineate these steps, some of them are apparent. At the outset, parents had to decide whether to send their child to public or private, tuition-charging schools. Next, they had to determine whether their child should attend a sectarian or nonsectarian private school. Once their child was enrolled in a private school, the tuition bill was due from parents upfront. Before being able to reap its benefits, it was necessary that parents become aware of the tuition deduction. Finally, it was not certain that because their child attended a private school, parents would automatically take the deduction; rather, parents had to make the choice to take advantage of it. As the Court explained, “[t]he historic purposes of the [Establishment] [C]lause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case.” Id. at 400, 103 S.Ct. at 3070. Because the Court found that the program in Mueller “neutrally provide[d] state assistance to a broad spectrum of citizens” and because “under Minnesota’s arrangement public funds befcame] available only as a result of numerous, private choices of individual parents of school-age children,” it concluded that the program did not have the primary effect of advancing religion. Id. at 398-99, 103 S.Ct. at 3069. Defendants argue that because the Court in Mueller indicated it would not base the constitutionality of a program on the consideration of yearly statistical evidence reflecting the extent to which nonsectarian schools might benefit from the tax deduction, this court should not consider statistical evidence indicating the number of parochial schools involved in the Program. Defendants also contend that the Voucher Program complies with the dictates of Mueller and footnote 38 of Ny-quist because it is a facially neutral program. Defendants assert that, because the Program is facially neutral, the challenged aid is made generally available without regard to the sectarian-nonsectarian or public-nonpublic nature of the institutions benefitted. Therefore, they argue, any benefit received by a sectarian institution is received as a result of the private choice of the individual parents. Contrary to Defendants’ assertions, Mueller cannot fairly be read as repudiating the obligation of the courts in the first instance to see whether the state program is indeed genuinely neutral. The Mueller Court’s refusal to consider annual reports reciting the number of parents who availed themselves of the tax deduction at issue must be evaluated in the entire context of its decision. Over the dissent of Justices Marshall, Brennan, Blackmun and Stevens, the Court found, on analysis, that the tax deduction was “made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution[s] benefitted” and that it be