School Choice & Charters

Court Takes Case Seen as Voucher Sequel

By Mark Walsh — May 28, 2003 5 min read
  • Save to favorites
  • Print

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).

Related Tags:

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Profession Webinar
Evaluation Beyond the Checkbox: Turning Ratings Into Teacher Growth
Ratings alone don’t help teachers improve. Join us Nov. 10 to hear what happens after the evaluation: feedback, follow-up, and growth.
Content provided by Frontline Education
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Assessment Webinar
The Assessment Trust Crisis: How to Measure Learning in the Age of AI
AI is reshaping learning. Is assessment keeping up? Join this webinar to explore how to measure student thinking, not just right answers.
Content provided by Instructure
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
College & Workforce Readiness Webinar
From Student Trends to Counselor Action: Turning Insight Into Impact
Find out what is changing in how students approach planning for life after graduation and how schools can help.
Content provided by PowerSchool

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

School Choice & Charters A Public School District Wants to Maximize Federal Choice Funds. Here's How
Indiana's largest district is laying the groundwork for big investments through the new federal tax credit program.
6 min read
Image of a funnel with money slices flowing through onto student desks
Collage by Laura Baker/Education Week + Getty
School Choice & Charters Public Schools Are Prepping for Federal Choice Cash. They Still Might Not Get It
Educators in states that haven't opted into the new federal program are preparing for their students to benefit.
6 min read
A photo collage of a 4 pane window on top of a ghosted road map. Each window pane shows a different scene. Clockwise from left: mother holding the hand of her young child as they cross a cross walk toward a school building, middle school boy working a tutor, back of school bus on a rural road, and the back of a young girl working with objects.
Collage by Gina Tomko/Education Week + Canva
School Choice & Charters Explainer What Is the Federal Scholarship Tax Credit, and How Does it Work?
The first national school choice program starts in 2027. Answers to frequently asked questions.
9 min read
Image of a neighborhood of school buildings, house, government buildings, and a money symbol in the middle.
Trodler/iStock/Getty
School Choice & Charters Opinion School Choice Champion Highlights K-12 Disruptors
Education advocate Jeanne Allen encourages reform that centers human flourishing.
•
5 min read
The United States Capitol building as a bookcase filled with red, white, and blue policy books in a Washington DC landscape.
Luca D'Urbino for Education Week