Locke v. Davey
Institute for Justice Urged U.S. Supreme Court to Strike Down the State of Washington’s Barriers to School Choice (IJ Amicus)

The State of Washington denied a college scholarship to theology student Joshua Davey, arguing that the Washington Constitution bars state funding for religious studies and schools—even though the scholarships support students, not schools, just like school choice programs.  In July 2002, the 9th U.S. Circuit Court of Appeals sided with Davey.  The 9^th Circuit reasoned that the State of Washington may not interpret its state constitution’s religion clauses, including its Blaine Amendment, to inhibit the free exercise of religion guaranteed by the federal Constitution by denying the choice of religious options.

The State of Washington appealed that decision to the U.S. Supreme Court, which accepted the case. In an amicus brief on behalf of organizations dedicated to education reform, the Institute for Justice urged the Court to uphold the 9^th Circuit ruling and once and for all rein in overly broad interpretations of state constitutional religion clauses.  Those very clauses—the Blaine Amendment and the “compelled support clause”—are the favorite legal tool of teachers’ unions to attack K-12 school choice programs that allow parents to select religious schools.

Instead of issuing a broad decision striking down Blaine Amendments, the Court in February 2004 rejected Davey’s claims.  But, importantly, it carefully limited the scope of its decision.  The Court sidestepped the Blaine Amendment question and issued a ruling examining only the state funding of college-level training for the ministry—not religiously neutral K-12 school choice programs.  Those issues remain to be litigated another day.