Understanding Locke v. Davey and School Choice

John Kramer
John Kramer · March 1, 2004

Washington, D.C. –Commentators predicting the possible “death knell” for school choice as a result of last week’s U.S. Supreme Court decision in Locke v. Davey are overplaying their hand, the Institute for Justice said today. The Court’s opinion was narrowly tailored to the facts of the case and not broadly applicable to school choice or other programs. The Washington, D.C.-based Institute for Justice filed an amicus brief in the case and is the nation’s leading legal advocate for school choice.

“This decision should be a blip on the school choice radar screen,” said Clint Bolick, vice president of the Institute for Justice. “The Court clearly went out of its way to issue a narrow decision that should leave the school choice landscape much as it was before: IJ will continue to defend school choice from the state-by-state legal antics of the opponents of education reform.”

In contrast, Barry W. Lynn, executive director of Americans United for Separation of Church and State, told theWashington Post: “This will put a gigantic additional boulder in the way of expanding school vouchers and other aid to religion.” Similarly, Bruce Rogow, a law professor at Nova Southeastern University in Fort Lauderdale, told the Associated Press that the ruling could be the “death knell” for school choice in Florida. “I think this lends support to the anti-voucher argument,” he said.

“Both of these claims appear to assume that the Court upheld Blaine Amendments, the state constitutional provisions with a notoriously bigoted history, or that the Court addressed the critical question of whether a state may discriminate against religious options in neutral K-12 school choice programs,” said IJ Senior Litigator Richard Komer. “But the unusual seven-member majority carefully and deliberately sidestepped both of these hot-button issues, leaving them for another day. What they issued was a ruling examining only the state funding of the training of ministers.”

Supreme Court’s Majority on the Limits of Locke

“[T]he only issue here is the State’s interest in not funding the religious training of clergy,” the majority notes on page 8, footnote 5. Similarly, on page 7, “Training someone to lead a congregation is an essentially religious endeavor.” And also on page 8, “We can think of few areas in which a State’s antiestablishment [of religion] interests come more into play [than in forcing people to support church leaders].”

At least 28 times in the majority’s 12-page opinion, the Court notes that Davey’s scholarship was being used to fund training for the ministry, employing limiting phrases such as “training for a lifetime of ministry,” “pastoral ministries degree,” “degree in devotional theology,” and “to pay for the religious education of future ministers.” Indeed, the majority’s conclusion on page 12 is restricted to “[t]he State’s interest in not funding the pursuit of devotional degrees,” and the majority explicitly declines to “venture further into this difficult area.”

“To be sure, we had hoped for a broad ruling applying the facts of Joshua Davey’s case to the issues raised by K-12 school choice—and so did school choice opponents, who sought a definitive ruling approving discriminatory state-level interpretations of Blaine Amendments,” added Komer. “But for those whose primary concern is K-12 voucher programs—not the training of clergy—this decision, by its terms, has little to say.”

“Of course, how the ruling is applied in future cases remains to be seen,” said Komer. “But any cases involving Blaine Amendments and school choice in other states will certainly require specific consideration by the U.S. Supreme Court.”

“Again and again, the Court goes out of its way to explicitly limit this decision to the training of religious clergy,” said IJ Senior Attorney Clark Neily, who is defending the Florida school choice program on behalf of voucher recipients in Pensacola. “While it could have issued a broader decision, it declined to do so.”

On pages 10 and 11, the Court explains, “Far from evincing . . . hostility toward religion . . . we believe that the entirety of the Promise Scholarship Program goes a long way toward including religion in its benefits. The program permits students to attend pervasively sectarian religious schools, so long as they are accredited.”

“Here the Court seems to be reinforcing its neutrality jurisprudence of the past several decades, carving out only a single, narrow exception: public funding for the religious training of clergy,” added Neily. “While we are disappointed with the Court’s digression from neutrality, it is a minor one, involving only the funding of training for a particular vocation. Certainly nothing in the opinion suggests that Washington state could have prevented scholarship recipients from choosing religious schools or even religious studies, as many school choice opponents have tried to suggest. Those questions, which remain unresolved, have far more relevance for school choice.”

Supreme Court’s Majority on the Establishment Clause

Moreover, the majority on page 5—citing Zelman, the decision upholding Cleveland’s voucher program—notes, “[u]nder our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. . . . As such, there is no doubt that the State could, consistent with the Federal Constitution, permit [scholarship recipients] to pursue a degree in devotional theology.”

“There were no separate concurring opinions quibbling with the point that states are free to include religious options in neutral school choice programs without offending the Establishment Clause,” said Bolick. “It is very noteworthy that all justices have now signed off on that proposition. That means Zelman is totally unaffected by this ruling.”

State Constitutions and School Choice

Additionally, examining the patchwork quilt of state constitutions’ religion clauses is critical to understanding the impact of Locke v. Davey for school choice. State constitutions’ religion clauses are not an automatic or absolute barrier to school choice or other programs that fund religious options on equal footing with secular options. In fact, state supreme courts have upheld school choice programs in several states with these clauses.

Thirty-seven state constitutions contain the notorious Blaine Amendments, while 29 state constitutions include what many commentators call “compelled support” clauses; some states have both, and only three states (Maine, Louisiana and North Carolina) have neither. [Visit IJ’s School Choice Information Center at www.ij.org/schoolchoice for a map that illustrates which state constitutions have Blaine Amendments and compelled support clauses, as well as a Frequently Asked State and Federal Legal Questions summary of state constitutions and school choice.]

The Blaine Amendments are a historical outgrowth of anti-Catholic and anti-immigrant bigotry—a “shameful pedigree,” as described by a plurality of the U.S. Supreme Court. By contrast, the compelled support clauses, which date back to some of the earliest state constitutions, were an attempt to prevent the colonial-era practice requiring church attendance and support for the colony’s established church.

Importantly, different state courts have interpreted their states’ Blaine Amendments and compelled support clauses in different ways. Contrary to many news reports, only a minority of the 47 states with one of these religion clauses—or the 37 states with Blaine Amendments—”ban” public funding of religious options. Some states interpret these religion clauses in-line with the federal Constitution, which allows such funding options. Others see them as more restrictive. Still others simply have not decided a case that addresses the question. [Download a map that shows the “Signals from State Courts on School Choice.“]

In fact, state supreme courts in Wisconsin, Ohio and Arizona have all upheld voucher or tax credit programs, despite Blaine Amendments and compelled support clauses, as did two Illinois state appellate courts in decisions the state supreme court declined to review.

Locke v. Davey, by not addressing Washington’s Blaine Amendment, does not significantly alter the legal landscape for school choice.

Additionally, the decision has little to say about ongoing litigation defending Florida’s school choice from an attack under that state’s Blaine Amendment.

“The Blaine Amendments had no bearing on the Locke decision; by contrast, the entire challenge to Florida’s Opportunity Scholarship program is based on the state’s Blaine Amendment,” Neily said. “Moreover, the Florida Supreme Court has consistently interpreted the state’s Blaine Amendment to permit religious organizations to participate in public welfare programs on equal footing with non-religious organizations.”