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Published in Print: May 28, 2003, as Court Takes Case Seen as Voucher Sequel

Court Takes Case Seen as Voucher Sequel

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The U.S. Supreme Court agreed last week to consider whether states that provide scholarship aid for secular schooling may be constitutionally required to make such aid available for religious instruction.

The court's decision to take up the case, in effect a sequel to its ruling last year that the U.S. Constitution permits states to provide vouchers for religious school tuition, surprised some legal observers.

And its eventual ruling could cut short what some have expected would be years of litigation over the question of whether state constitutional prohibitions against government aid to religion would pose a barrier to school choice programs that include students in religious schools.

"This is 'Private School Vouchers: Reloaded,' if it were a movie," said Barry W. Lynn, the executive director of Americans United for Separation of Church and State.

The appeal in Locke v. Davey (Case No. 02-1315) involves a college student from Washington state who was denied a state merit scholarship because his chosen major was "pastoral studies."

Joshua Davey applied for a Washington's Promise Scholarship in 1999 and was told by state officials he was eligible for an award of $1,125 for that year. Mr. Davey entered Northwest College, a private institution in Kirkland, Wash., that is affiliated with the Assemblies of God church. He chose pastoral studies as one of his majors, which made him ineligible for the state scholarship.

Washington and 14 other states prohibit state scholarship aid from being used for academic study leading to degrees in theology or divinity.

Mr. Davey sued the state on the grounds that its policy violated his federal constitutional right to free exercise of religion. He lost in a federal district court, but a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 last year that the state's policy discriminated against religion.

That ruling came just weeks after the Supreme Court's 5-4 decision in Zelman v. Simmons-Harris, which upheld the inclusion of religious schools in the state-financed voucher program in Cleveland.

With the high court's ruling that the First Amendment's prohibition against a government establishment of religion did not require the exclusion of religious schools from voucher programs, many opponents of vouchers vowed to rely on language in most state constitutions that more explicitly bars government aid for religious instruction.

Many of those provisions are known as "Blaine amendments" after U.S. Rep. James G. Blaine, who unsuccessfully sought to add similar language to the U.S. Constitution in the 1870s.

The 9th Circuit court said that Washington state's constitution, which includes a so-called Blaine measure, could not trump Mr. Davey's First Amendment right to freely exercise his religion.

The state of Washington appealed to the Supreme Court, arguing that the 9th Circuit decision conflicts with a state supreme court interpretation of the state constitutional provision. The state also argued that it was a question of national importance because of the 14 other states' similar restrictions on aid for religious study.

Rational Decision

Mr. Davey's lawyers, from the American Center for Law and Justice, a legal-advocacy organization affiliated with the religious broadcaster Pat Robertson, had urged the justices not to take up the case. A denial of review by the high court would have left in place Mr. Davey's victory at the appellate level.

But the Institute for Justice, which helped defend the Ohio voucher program, filed a friend-of-the-court brief urging Supreme Court review. The institute believes the 9th Circuit ruled correctly, but it saw the potential of a high court affirmation of that ruling as beneficial in the battle for school vouchers.

"The broader question in this case is whether a state constitutional provision on religion can be interpreted in such a way as to exclude religious schools or religious studies from an otherwise neutral government program," said Clark Neily, a senior lawyer with the Washington-based institute.

"Our response is that a state cannot say to parents, 'You can pick any school you want [under a voucher program] as long as it's not run by religious people.' "

The institute had begun filing lawsuits meant to pre- empt voucher opponents from relying on state constitutional restrictions on aid to religion. It had expected years of litigation before that issue reached the Supreme Court.

"Most of us are surprised they took it up so quickly," Mr. Neily said.

Mr. Lynn, whose Washington-based advocacy group for strict church-state separation opposes vouchers and considers religious school participation in such plans unconstitutional, said he, too, was surprised the justices took the case, because he found the 9th Circuit court's ruling "baffling."

"It's rational for a state to say, 'If you want to study to become a minister, that's OK, but we don't have to fund it,'" Mr. Lynn said.

The case will be argued during the court's next term, which starts in October. A decision is likely by the summer of 2004.

'Redneck' Shirt

Separately last week, the high court declined to hear the appeal of a New Jersey school district that lost a lower-court ruling in a case involving its attempt to discipline a student for wearing a T-shirt inscribed with "redneck" jokes.

The 2,100-student Warren Hills regional school district suspended high school student Thomas Sypniewski Jr. in 2001 for wearing a T-shirt based on the "You might be a redneck ..." humor of the comic Jeff Foxworthy. The district, which had faced racial incidents involving the Confederate battle flag, said the shirt violated its policy against racial harassment.

But a panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled 2-1 that the word "redneck" could not be automatically associated with racial harassment.

The justices declined without comment to hear the district's appeal in Warren Hills Regional School Board v. Sypniewski (No. 02-1328).

In addition, the court refused to hear the appeal of a group of Pasadena, Calif., parents who had challenged their school district's policy for assigning students to three magnet schools.

The parents argued that the 23,000-student district unconstitutionally considered race in assigning students to the magnet schools. But the district said it never had to rely on race while the policy was in effect in 1999-2000, and the admissions policy is now race-neutral. Lower federal courts held that the parents lacked legal standing to challenge the policy because their children were never subjected to different treatment based on race.

The justices declined without comment to hear the appeal in Scott v. Pasadena Unified School District (No. 02-1054).

Vol. 22, Issue 38, Pages 18,20

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