Justices Ask Lower Courts to Reconsider Rulings Blocking Religious School Aid

By Mark Walsh — June 27, 2017 6 min read
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The U.S. Supreme Court won’t be stepping right back into the debate over school vouchers and government aid to religious schools.

The justices on Tuesday sent two sets of cases about aid to religious schools back to lower courts for reconsideration in light of their opinion on Monday that a church preschool could not be excluded from a state grant program to improve playgrounds.

But the court did vacate lower court rulings that had barred the inclusion of religious schools in such aid programs and ordered that the issues be reconsidered in light of the decision in Trinity Lutheran Church of Columbia v. Comer.

Meanwhile, the Trinity Lutheran decision continues to fuel debate about whether a purportedly narrow decision provides support for school choice programs that include religious schools. (More on that below.)

Tuesday’s development is only stirring the pot further regarding the Trinity Lutheran decision and school choice.

The justices declined for now to take up a major question that was lurking in the Trinity Lutheran case but was not ultimately addressed in Chief Justice John G. Roberts Jr.'s majority opinion: Whether state constitutional provisions that strictly bar government aid to religion must yield to churches’ and parents’ federal constitutional rights of free exercise of religion and equal protection?

As many as 39 states have so-called “Blaine amendments” in their state constitutions. The provisions are named for James G. Blaine, the 19th-century congressman who led an unsuccessful 1876 effort to amend the U.S. Constitution to prohibit public funding of religious schools at a time when the growing Roman Catholic population was pressing for government funding for parochial schools.

While it considered the Trinity Lutheran case, the Supreme Court was holding on to appeals from Colorado and New Mexico that challenge Blaine amendments in those states’ constitutions.

The New Mexico case involves a state textbook-lending program for private schools and a New Mexico Supreme Court decision that held a provision of the state constitution to bar the inclusion of religious schools in the program.

“Here, the New Mexico Supreme Court explicitly acknowledged that [the state constitution’s provision barring aid to religious schools] is a Blaine Amendment that was forced upon the state by a federal Congress driven by nativist religious animosity against Catholics,” said the appeal filed a private schools group in New Mexico Association of Nonpublic Schools v. Moses (Case No. 15-1409).

The Colorado case, involving three separate appeals, stems from an unorthodox effort by the Douglas County school district to create a tuition-scholarship program for students to attend private schools, including religious schools. The Colorado Supreme Court blocked the program based on a Blaine-like, “no aid” provision in the state constitution.

The school district, the Colorado state board of education, and a group of intervening private school parents in the Colorado case all appealed to the U.S. Supreme Court. Like the New Mexico appeal, the Colorado parties urge the court to rule that the state Blaine amendments violate federal constitutional rights of religious schools or parents.

“This case is ... an ideal vehicle for considering both the anti-Catholic origins of Blaine Amendments and the extent to which they can be used to require government discrimination against religion today,” said the appeal for the Douglas County district filed by Paul D. Clement, a former U.S. solicitor general.

The Colorado cases are Doyle v. Taxpayers for Public Education (No. 15-556), Douglas County School District v. Taxpayers for Public Education (No. 15-557), and Colorado State Board of Education v. Taxpayers for Public Education (No. 15-558).

The Supreme Court, in a housekeeping orders list issued the day after the formal last day of its term, sent the New Mexico and Colorado cases back to their respective lower courts for reconsideration in light of the Trinity Lutheran decision.

Michael Bindas, a senior attorney with the Institute for Justice, an Arlington, Va.-based legal group that is representing the private school families in the Colorado case (the Doyle appeal), issued a statement Tuesday that says, “Today’s order sends a strong signal that just as the U.S. Supreme Court would not tolerate the use of a Blaine Amendment to exclude a religious preschool from a playground resurfacing program, it will not tolerate the use of Blaine Amendments to exclude religious options from school choice programs.”

Maybe so, but the lower courts will now get a crack of applying Trinity Lutheran to the facts in the New Mexico and Colorado cases, and either or both of those could be back at the Supreme Court within a year or two.

Debate on Reach of Trinity Lutheran

Meanwhile, legal experts and others continued to debate how far the Trinity Lutheran decision went beyond church preschool playgrounds. (Education Week‘s Arianna Prothero has some further reaction from voucher advocates at her Charters & Choice blog.)

U.S. Secretary of Education Betsy DeVos issued a statement that welcomed the decision, saying that the ruling “sends a clear message that religious discrimination in any form cannot be tolerated in a society that values the First Amendment. We should all celebrate the fact that programs designed to help students will no longer be discriminated against by the government based solely on religious affiliation.”

Former Florida Gov. Jeb Bush, a Republican who is now the chairman of the Foundation for Excellence in Education, said in a statement, “We are heartened that the court has helped pave the way for expanding parental choice and providing more children access to a quality education.”

Even some strong proponents of church-state separation seemed to acknowledge that the decision will have implications beyond playgrounds.

“This ruling threatens to open the door to more taxpayer support for religion, which is at odds with our history, traditions and common sense,” said a statement by the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, based in Washington.

In a posting that is part of a web symposium on the decision at Scotusblog, Frank S. Ravitch, a professor of law and religion at Michigan State University has an interesting post analyzing Chief Justice Roberts attempt to limit the scope of the Trinity Lutheran with his Footnote 3, which says, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

The footnote does not command a majority of the court, and Justice Neil M. Gorsuch wrote a concurrence, joined by Justice Clarence Thomas, that criticizes it.

Ravitch, in his Scotusblog post, writes, “How much footnote 3 limits the broader holding in Trinity Lutheran is unclear, especially given some of the strong language used in the majority opinion suggesting that excluding religious entities from ‘public benefit’ programs based on the fact that they are religious entities is inherently discriminatory.”

The professor adds: “Despite a suggestion to the contrary in the dissenting opinion, Trinity Lutheran may very well open the door to requiring state and local governments to include religious entities in voucher programs.”

A version of this news article first appeared in The School Law Blog.