School Choice & Charters

High Court Weighs ‘Vouchers II’ Case

By Caroline Hendrie — December 10, 2003 7 min read

The U.S. Supreme Court once again appeared sharply divided as it heard arguments last week in a church-state dispute that could ultimately yield a ruling that would require—not merely permit—publicly financed school voucher programs to include religious as well as secular schools.

Eighteen months after the high court’s landmark 5-4 ruling upholding Cleveland’s school voucher program, the justices pointedly questioned lawyers on both sides of an appeal concerning a college-scholarship program in Washington state that excludes students who major in theology.

See Also...

Read the accompanying story, “Court Is Flooded With Briefs on Implications for Vouchers.”

Also, see an edited transcript of the oral arguments in the case. (Web only.)


Supporters and opponents of publicly financed tuition aid for students in private schools are closely watching Locke v. Davey (Case No. 02- 1315), and the justices’ questions during the Dec. 2 oral arguments made clear that their interest is not misplaced. The case involves Joshua Davey, a college student who contends that Washington state’s policy of no aid to theology majors violates his First Amendment right to free exercise of religion.

Justice Sandra Day O’Connor, who is often the swing vote in important church-state cases, made especially clear that the case’s implications for the voucher issue were of paramount concern for her. Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, and David H. Souter also expressed keen interest in how the outcome would reverberate in elementary and secondary education.

“What you’re urging here would have a major impact, would it not, on voucher programs?” Justice O’Connor asked Jay A. Sekulow, a Washington lawyer representing Mr. Davey.

“Well, it would,” he replied.

The upshot of a decision siding with Mr. Davey, several justices suggested, would be to say to states: If you choose to offer vouchers for use at secular private schools but not at religious schools, then you violate the U.S. Constitution’s free-exercise-of-religion clause.

But Justice Kennedy— who was in the majority in last year’s Zelman v. Simmons-Harris voucher decision—suggested that the court could rule in Mr. Davey’s favor on grounds that would avoid another sweeping ruling on vouchers.

“As I understand your answer to Justice O’Connor, if we decide in your favor, we necessarily commit ourselves to the proposition that an elementary and secondary school voucher program must include religious schools if it includes any other private schools,” Justice Kennedy told Mr. Sekulow. “It seems to me that your case can be resolved on a much narrower issue than that.”

A Clash of Traditions

Joshua Davey was denied scholarship aid because he majored in technology.

Joshua Davey was denied scholarship aid because he majored in theology.
—Photograph by Allison Shelley/Education Week

Washington state’s law against aid to theology majors stems from a provision in its constitution that bars public money from being “appropriated for or applied to any religious worship, exercise, or instruction.” A separate but related provision in the state’s 114-year-old constitution requires that schools supported “wholly or in part” by public funds “shall be forever free from sectarian control or influence.”

Some 36 other states also have constitutional provisions that block aid to religious schools, and opponents and supporters alike see such clauses as major obstacles to the spread of vouchers.

While voucher opponents view such provisions as valid efforts by states to require strict separation of church and state, supporters portray them as illegitimate relics of 19th-century anti- Catholicism. (“Court Is Flooded With Briefs on Implications for Vouchers,” this issue.)

Washington’s constitutional ban on financing religious instruction was not the product of anti-Catholic sentiment, state Solicitor General Narda Pierce told the high court. Instead, she said, it is part of a long American tradition of protecting taxpayers from effectively being forced to subsidize faiths to which they do not adhere.

“Washington’s interest expressed in 1889 was to protect the freedom of conscience of all its citizens,” Ms. Pierce told the justices.

Justice O’Connor picked up that theme in questioning U.S. Solicitor General Theodore B. Olson, who presented the Bush administration’s view that Washington’s policy violates the First Amendment.

“There’s been a couple of centuries of practice in this country of not funding religious instruction by tax money,” she said. “That’s as old as the country itself, isn’t it?”

Replied Mr. Olson: “Well, yes, it is. But there is the other tradition that is as old as the country itself ... the free-exercise component of the religion clauses, which this court has said repeatedly mandates neutrality.”

Opponents of vouchers cited Justice O’Connor’s questioning as grounds for hope that the court would reverse last year’s 2-1 ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that Washington’s policy infringed on Mr. Davey’s right to the free exercise of his religion.

Among the states with active voucher programs, Florida, Ohio, and Wisconsin allow students to use them at religious schools, while Maine and Vermont do not. A Colorado voucher program approved last spring is also open to religious schools, but the program was blocked last week by a state judge. (“Colo. Judge Puts State’s Vouchers on Hold,” this issue.)

“I think Justice O’Connor is very troubled by the notion that states would have to include religious institutions in these kinds of programs,” said Julie Underwood, the general counsel of the National School Boards Association.

But Mr. Sekulow said he did not necessarily view the justices’ focus on vouchers as boding ill for Mr. Davey.

“The ramifications are very significant, and we don’t run from that,” he said. “That’s one of the reasons the justices decided to take the case.”

‘Religious Conscience’

The four dissenters in the Cleveland voucher ruling—Justices Souter, Ginsburg, John Paul Stevens, and Stephen G. Breyer—voiced varying degrees of sympathy last week for Washington state’s defense of its Promise Scholarship program.

Justice Souter said the state might have done “a bad job of line drawing” when it disqualified theology majors from receiving aid available to other students who could be enrolled in identical faith-oriented courses at the same institutions. The scholarships are available to students at in-state colleges with good high school grades but modest family incomes.

Yet such concerns are beside the point, Justice Souter suggested, in examining whether states can decide not to subsidize instruction they deem to be promoting religious faith, an issue that he said is of fundamental importance in the voucher debate.

Pursuing his point that the case turned on questions that do not necessarily extend to the voucher issue, Justice Kennedy said he saw no justification for a policy that forced a student to choose between accepting a state scholarship and openly declaring a theology major. That situation, he said, creates a “severe violation of religious conscience” and thus could be grounds for a ruling that would not directly implicate vouchers.

But Justice Souter insisted that a ruling for Mr. Davey would hand voucher supporters a potent argument against any program that excluded religious schools: “that the religious student must somehow surrender a conscientious belief” by forgoing a religious school in favor of “a nonreligious private school or a public one to get the voucher.”

One of the court’s staunchest critics of strict church- state separation, Justice Antonin Scalia, avoided direct references to the K- 12 context during the argument.

He suggested that he views the state’s policy as singling out religious people for ill treatment in a manner no different than denying aid to students of only particular faiths, such as Judaism.

Chief Justice Rehnquist, who wrote the majority opinion in the Zelman case, pointed out that states are not required to offer vouchers for private schooling. In Zelman, he concluded that the Cleveland voucher program did not run afoul of the constitutional ban on a government establishment of religion because public funding was given to individuals who had a choice among religious and secular schools.

“It’s only when it starts funding some private schools that you get into the religious question,” he said last week.

A decision in the case is expected by next spring or early summer.

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