What do rubber tire scraps have to do with school-choice options like vouchers? A lot, it turns out, and a case involving those tire scraps that is now before the U.S. Supreme Court could have a wide-ranging impact on whether parents can access those choice options.
The case, Trinity Lutheran Church of Columbia v. Pauley, involves a Missouri state program that provides grants for organizations like schools to use recycled shredded tire materials to make playground surfaces safer. Trinity Lutheran Learning Center, a Christian preschool, applied for a grant and ranked fifth out of 44 applicants based on the overall quality of their proposed plan.
Despite its high ranking, the state of Missouri denied Trinity a grant because it is a religiously affiliated institution. The state cited, among other things, Article IX, Section 8 of the Missouri Constitution, commonly referred to as a Blaine Amendment, which prohibits public funding of any “school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination.” Around three-dozen states have Blaine Amendments, including California.
California’s Blaine Amendment, also found in Article IX, Section 8 of its constitution, is similar to the Missouri provision: “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools.”
Trinity Lutheran sued the state of Missouri saying that the state’s actions, based on the Missouri Blaine Amendment, violates the free exercise, equal protection, free speech and establishment clauses of the First and 14th Amendments to the U.S. Constitution. The Supreme Court is expected to hand down a decision in late 2016 or early 2017.
While Trinity Lutheran’s challenge to the Missouri Blaine Amendment is on an as-applied basis rather than a facial basis, the Supreme Court could decide on the constitutionality of state Blaine Amendments. If the court decides to do so, the ramifications would go well beyond tire scraps on playgrounds.
The Supreme Court in Zelman v. Harris said that the establishment clause allows religious private schools to participate in school-choice programs as long as parents are making the choice of schools. Despite that decision, states have used their Blaine Amendments to invalidate school-choice programs that include religiously affiliated schools.
In 2015, the Colorado Supreme Court used the state’s Blaine Amendment to stop a voucher program enacted by Douglas County. Douglas County filed a petition for certiorari to the Supreme Court last October, so it is no surprise then that county school officials filed an amicus brief in support of Trinity Lutheran.
The Douglas County brief argues that Colorado Supreme Court’s reading of the state Blaine Amendment “impermissibly force governments like Douglas County to take one of two untenable approaches: Discriminate against religion in the administration of generally available aid, or decline to extend such aid to anyone.” “The constitution,” says Douglas County, “does not put governments to this intolerable choice.”
Nevada’s cutting-edge universal education-savings-accounts school-choice program is also facing legal challenge[s] based on that state’s Blaine Amendment, which says, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” The Nevada program creates government-funded accounts for parents of schoolage children, which they can use to pay for a variety of educational services such as tuition at religious or non-religious private schools.
While a state court judge recently dismissed one lawsuit against the Nevada program, the Nevada Supreme Court will be hearing a separate case on the program soon. Nevada Attorney General Adam Paul Laxalt, who is defending the Nevada school-choice program, says that the Trinity Lutheran case could be of critical importance: “My office is encouraged that the Supreme Court’s decision [to hear Trinity Lutheran] will be of crucial significance in our defense of education savings accounts.” “Nevada’s constitution does not require religious discrimination,” he declares, “and we are hopeful that our nation’s highest court will confirm that the U.S. Constitution does not allow that either.”
The Institute for Justice, which has litigated many school-choice cases, says of Trinity Lutheran: “Thus, the relevance of this case to school choice: if this court holds that religious-based exclusions in public-benefit programs violate the federal Constitution, it will put the argument of school-choice opponents to rest, and school-choice families will be able to continue accessing the educational options, religious or not, that are best for their children.”
Opponents of school choice counter with the 2004 Supreme Court decision in Locke v. Davey, which prevented government-funded scholarships from going to students majoring in “devotional theology.” However, while some courts, such as the 8th U.S. Circuit Court of Appeals, have construed the Locke case broadly to support the constitutionality of Blaine Amendments, others have read Locke much more narrowly.
The 10th Circuit, in Colorado Christian University v. Weaver, said that Locke “suggests, even if it does not hold, that the State’s latitude to discriminate against religion … does not extend to the wholesale exclusion of religious institutions and their students from otherwise neutral and generally available government support.”
It is partly this disagreement among the lower federal courts on Locke that likely prompted the Supreme Court to hear Trinity Lutheran and perhaps rule on the question of Blaine Amendments once and for all. As the Institute for Justice notes, “The court’s answer to the question could bear on the federal constitutional rights of the 1.3 million student currently participating in school-choice programs throughout the country.”
In addition, if the court overturns state Blaine Amendments, or even narrowed their application, it would open the door for school-choice efforts in states like California where home-grown Blaine Amendments have acted as disincentives for legislative and ballot-measure activity.
Ultimately, the Blaine Amendments are incompatible with America’s concept of equality. Prior to his recent appointment as a justice of the Arizona Supreme Court, attorney Clint Bolick said it best when he urged the Supreme Court to strike down Blaine Amendments “to vindicate our nation’s sacred promise of equal educational opportunities.”