Opponents of school vouchers hailed last week’s 7-2 ruling by the U.S. Supreme Court upholding a Washington state scholarship program that denies aid to theology majors, while supporters called it a narrow ruling that left the legal battleground over vouchers virtually unchanged.
Disappointing proponents of tuition aid for students in religious schools, the court held that Washington state was well within its rights to exclude students training for the ministry from its Promise Scholarship Program, which subsidizes college costs for high-achieving students of modest means.
“Training someone to lead a congregation is an essentially religious endeavor,” Chief Justice William H. Rehnquist wrote for the majority in Locke v. Davey (Case No. 02-1315). “That a state would deal differently with religious education for the ministry than with education for other callings is ... not evidence of hostility toward religion.”
Lawyers for former college student Joshua Davey had argued otherwise, and the two dissenting justices in the case, Justices Antonin Scalia and Clarence Thomas, agreed with them. But the majority accepted Washington state’s argument that it was entitled under its own constitution’s ban on financing religious instruction to protect taxpayers’ freedom of conscience by prohibiting students from using scholarships to pursue theology degrees.
Although the case was based on college aid, supporters of vouchers for elementary and secondary schooling had hoped the justices would use it to go beyond their landmark 2002 ruling upholding Ohio’s school voucher program in Cleveland.
That decision, in Zelman v. Simmons-Harris, held that states could include religious schools in voucher programs—as long as parents had a choice among religious and secular schools.
Voucher supporters had hoped that in Locke, the court would establish that such programs must include religious schools.
“I think that they thought they were going to win this case and win it big,” said Michael D. Simpson, a lawyer with the National Education Association, which is fighting voucher programs in Florida and Colorado. “If we had lost Locke, then it would have made it much more difficult to win the Florida and Colorado cases.”
Voucher supporters don’t dispute that point.
“‘Lost opportunity’ is the way to conceive of it,” said Clark Neily, a senior lawyer with the Institute for Justice, a Washington-based legal-advocacy center that is helping to defend the Florida and Colorado programs.
A Look to France
Beyond the voucher issue, some analysts saw the ruling as a potential obstacle to allowing faith-based organizations to provide the tutoring that some students are entitled to under the federal No Child Left Behind Act.
“This case makes it pretty clear that you can’t trump a state constitution,” said Julie Underwood, the general counsel of the National School Boards Association.
“In our march toward privatization, and that’s what I think we’re looking at with No Child Left Behind, this kind of throws up a roadblock,” Ms. Underwood said.
In upholding the Washington state program, Chief Justice Rehnquist stressed the long tradition of states’ refusal to finance the training of clergy.
“Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion,” he wrote.
Justice Scalia disputed that reading of history.
“That history involved not the inclusion of religious ministers in public benefit programs like the one at issue here, but laws that singled them out for financial aid,” he said. He argued that the majority’s view could be expanded in unexpected directions.
"[R]ecall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the court embraces today,” Justice Scalia said.
The chief justice stressed the limitations of the majority ruling. "[T]he only interest at issue here is the state’s interest in not funding the religious training of clergy,” he wrote.
Pointing to that statement, Mr. Neily of the Institute for Justice said that anyone who claimed that the court had resolved the question of whether voucher programs must include religious schools if they offer aid for secular ones was “woefully mistaken.”
“My response to anybody who brings up this case in court will be, ‘Is this voucher program training kids to be ministers? OK, no? All right, Davey doesn’t apply,’” Mr. Neily said.
Besides Florida and Colorado, the case might come up in lawsuits that the Institute for Justice is backing in Maine and Vermont. There, parents have sued to allow students in towns without public schools to attend religious as well as secular private schools at public expense as part of the long-standing practice of “tuitioning.”
The NEA’S Mr. Simpson described last week’s ruling as a major setback to the challenges in those two New England states.
“What was encouraging about Chief Justice Rehnquist’s opinion was that it said it was all right to fund a secular education and to refuse to fund a religious education,” Mr. Simpson said. “I think that blows them out of the water in Maine and Vermont.”
About three dozen states—including Washington state—have constitutional provisions that in some way prohibit public funding of religious education. Referred to by voucher supporters as “Blaine amendments,” they get their name from the 19th-century congressman James G. Blaine, who led an unsuccessful effort to amend the U.S. Constitution to prohibit public funding of “sectarian” schools at a time when Roman Catholics were pressing for funding for parochial schools.
‘Play in the Joints’
In Locke v. Davey, pro-voucher groups argued that Washington state’s aid restriction flowed from a Blaine-style provision in its constitution and thus was tainted by anti-Catholic bigotry.
But Washington state insisted that its college-scholarship policy was occasioned by the religious-freedom clause in its constitution—which bars public money for religious instruction—and not a separate, Blaine-like ban on aid to sectarian schools.
Chief Justice Rehnquist noted that distinction in a footnote.
“Accordingly, the Blaine amendment’s history is simply not before us,” he wrote.
He cited Washington state’s scholarship policy as an example of the “play in the joints” that the court has found to exist between what is permitted under the First Amendment’s prohibition on government- established religion but not required under the amendment’s guarantee of free exercise of religion.
“If any room exists between the two religion clauses, it must be here,” he wrote. “We need not venture further into this difficult area in order to uphold the Promise Scholarship Program.”