School Choice & Charters Q&A

Why We Should Expect More Lawsuits Over Private School Vouchers

By Arianna Prothero — June 30, 2017 4 min read
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A Supreme Court ruling this week dealing with the seemingly innocuous question of whether it was OK for the state of Missouri to deny a grant to a church to improve its playground, has raised major questions about religious rights, separation of church and state, and, last but not least, school vouchers.

How, exactly, the Supreme Court’s Monday ruling in the closely watched Trinity Lutherancase could affect school vouchers and their ability to expand into new states was the source of much debate this week.

I called Steven Green, a law professor at Willamette University in Oregon and an expert on church-state and school voucher legal issues, to ask whether some voucher advocates were too optimistic in calling the Trinity Lutheran ruling a win for school choice. Below is our conversation edited for length and clarity.

But first, a little background:

On Monday, the Court released its decision in the case, finding that it was unconstitutional for the state of Missouri to deny grant funds to a church to resurface its playground with recycled tires purely on the grounds that it’s a religious institution.

Missouri’s constitution explicitly bars any state money from going to a religious group. Such no-aid provisions, which are often called Blaine Amendments and exist in dozens of other state constitutions, are a significant hurdle to voucher expansion. They’re why traditional school vouchers are not legal in many states.

On Tuesday, the Supreme Court sent two sets of cases—one from Colorado and one from New Mexico—challenging state Blaine Amendments back to the lower courts for reconsideration in light of their ruling in Trinity Lutheran.

Ed Week: A lot of school choice advocates are calling the Trinity Lutheran case a win. Are they being too optimistic?

Green: Yes and no. They’re being optimistic in the sense that this [ruling] doesn’t necessarily give a green light to reversing the state Blaine Amendments that are prohibiting school choice in many states, 38 to 39 states.

But they certainly have breathed life into an argument that these state no-aid provisions, as the court majority seems to suggest, are merely policy preferences, is the way that the Chief Justice phrased it.

And without a doubt, this is going to encourage more challenges to prohibitions against school choice.

Ed Week: What are the prospects for the Colorado and New Mexico cases that the Supreme Court sent back to the states to review?

Green: That’s what’s interesting. The court remanded those cases the following day. What’s been going on, on the blogs that I read and participate in, everybody has been commenting on this footnote number 3 in the Court’s opinion.

Where the court, at least the majority, and this is to get Justice [Elena] Kagan on board, where the court basically says all we’re dealing with here are recycled tires, right? Playground resurfacing. We do not address the religious uses of funding or other forms of discrimination. So, it sounds like it’s really trying to narrow this opinion so it only applies in this case.

But then they turn around the next day and they remand [these] cases back to state courts and say, ‘oh, by the way, reconsider your vouchers,’ which is clearly different from recycling tires—I mean there’s no religious use in recycled tires, but there clearly is a religious use for a voucher. [School vouchers are not limited to private religous schools, but most private schools that accept voucher students are religious.]

And so it sets up a tension because the footnote 3 seems to suggest that this won’t apply to voucher situations, so why would they remand these cases back?

It’s without a doubt going to incentivize litigants to argue that any of these state bars to choice programs are now forms of religious discrimination. That’s a significant shift in the Court’s jurisprudence. And so, we will see a host of additional challenges—not just these four cases—claiming that there is a public benefit that’s being denied solely on the basis of religion.

...I think what is the more compelling part of the opinion is that it just basically seems to brush aside, that’s the term that [Sonia] Sotomayor says, that the court has brushed aside all of the establishment considerations [the Court did not consider in its ruling whether providing money to Trintiy Lutheran Church violated the Constitution’s First Amendment which prohibits the government from establishing a state religion] as being inconsequential.

If that’s the case, I think it will invite some lower court judges to say, we’re getting signals from the [Supreme] Court that these state bars to funding are just insufficient when compared to a free exercise claim.

And if that’s the message from this opinion, then this is actually quite a consequential opinion.

I would not be surprised if you see some state court judges then saying we cannot enforce the state’s no-aid provisions. We’re talking 38 or 39 states that have these constitutional provisions.

Ed Week: But it’s not the death stroke for Blaine Amendments?

Green: It’s not. The chief justice is very coy [...] he just mentioned that Missouri has its own constitutional provision, but didn’t go into any detail about the history of it, it just basically says, again, brushing aside any federalism concerns that states should be able to make some kind of independent distinctions, it just basically says, anything more than what the Supreme Court has said is constitutional, at the state level now just becomes a policy preference. It does not have equal merit as a constitutional choice, and that definitely is troubling for Blaine Amendments.

It will undermine Blaine Amendments.

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Photo: The U.S. Supreme Court. —J. Scott Applewhite/AP-File

Photo: Steven Green, courtesy of Steven Green

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A version of this news article first appeared in the Charters & Choice blog.