The Supreme Court closed out its Spring 2017 term this morning by announcing its opinion in Trinity Lutheran v. Missouri, a case that had caught education reformers’ attention due to its potential implications for private school choice. A 7-2 majority ruled in favor of Trinity Lutheran, whose preschool had been excluded from a state grant program that helps nonprofits buy scrap tires to resurface their playgrounds.
The majority was broad, including all five conservatives and Justices Breyer and Kagan from the court’s liberal bloc, but their ruling was not. Penned by Chief Justice Roberts, the majority opinion simply bars states from denying public benefits to religious organizations based solely on the organization’s religious identity. It cites a long line of cases striking down laws that force individuals to “choose between their religious beliefs and receiving a government benefit.” But it does not extend that logic to policies like school vouchers under which public funds might be used not just to prevent scraped knees, or even to teach kids to read and write, but also for religious purposes. A crucial footnote limits the decision’s scope: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
For school choice advocates, the key question the case broached was whether the so-called “Blaine Amendments” found in some 37 state constitutions can be used to exclude religious schools from private school choice programs. The Supreme Court’s 2002 Zelman decision makes clear that private school choice programs may include religious schools; a broader decision in Trinity Lutheran could have implied that they must. As important, it would have meant that Blaine Amendments could no longer be used to challenge the constitutionality of school choice programs.
Justices Thomas and Gorsuch wrote separate concurring opinions in today’s case that signal their eagerness to issue such a ruling. Thomas restated his disagreement with the court’s 2004 Locke v. Davey decision, which allowed Washington State to deny a merit scholarship to a student training for the clergy. Gorsuch expressed “doubts about the stability” of any line distinguishing laws that discriminate on the basis of religious identity and religious use. In the most quotable line of his short tenure on the court, he asked “Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner?”
The majority’s approach was to be expected, however. The chief justice rightly prefers to handle cases as narrowly as possible, addressing only those issues essential to reach a decision. Eager to protect the court’s reputation, he likes to issue opinions that command as large a majority as possible. Especially once it became clear at oral argument that Kagan and Breyer were sympathetic to Trinity Lutheran, this result was all but assured. Footnote 3 was the price of their support.
What does it all mean? One implication is that, at least for now, states with Blaine Amendments that enact voucher programs that include religious schools should expect those programs to be challenged in the courts. Such challenges, however, could then provide an opportunity for the Supreme Court to take the next step.
Indeed, a petition to hear such a case out of Colorado is currently before the court. In 2015, the Colorado Supreme Court struck down a voucher program created by the Douglas County School District on the grounds that it ran afoul of Blaine Amendment language prohibiting aid to schools “controlled by any church or sectarian denomination.” The district contends that such provisions, if used to exclude religious organizations from aid programs, violate the federal Constitution’s guarantee of free religious exercise. With support from only four justices needed for the court to hear a case, I would expect Douglas County School District v. Taxpayers for Public Education to be on the docket soon.
What would be the likely outcome? It seems doubtful that Kagan and Breyer would side with the conservatives (though Breyer did note in his concurrence that he “would leave the application of the Free Exercise Clause to other kinds of public benefits for another day”). Gorsuch and Thomas, meanwhile, have already shown their hands. All eyes would be on the remaining three justices—in particular, Justice Kennedy. It is never easy to say where he will land, but a broader victory for school choice could well be on the horizon.
— Martin R. West
Martin West is an associate professor of education at the Harvard Graduate School of Education, deputy director of Harvard’s Program on Education Policy and Governance, and editor-in-chief of Education Next.