Institute for Justice Urges U.S. Supreme Court To Strike Down State Barriers to School Choice

John Kramer
John Kramer · September 8, 2003

Washington, D.C. –The Washington, D.C.-based Institute for Justice today urged the U.S. Supreme Court to strike down state-based barriers to school choice when it takes up Locke v. Davey, in which the State of Washington denied scholarship funds to a college student on the basis of his religion. IJ filed an amicus brief supporting theology student Joshua Davey on behalf of the Center for Education Reform, the Cato Institute, Citizens for Educational Freedom, and the Goldwater Institute.

The State of Washington denied a college scholarship to Davey, a theology student at Northwest College, 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. The 9th U.S. Circuit Court of Appeals sided with Davey; if the U.S. Supreme Court agrees, it would affirm the argument of school choice advocates that barring families from selecting religious schools through an educational choice program violates important federal rights.

As IJ argues in its brief, “The U.S. Constitution does not permit states to control or channel the free and independent choices of individuals in matters of religion or speech. Yet, that is precisely what the State of Washington has sought to do under the aegis of the state constitution’s Blaine Amendment.” The State of Washington, the brief continues, is “denying equal benefits to those who would choose an education with a religious purpose. This constitutes discrimination on the basis of religion, violating no less than four provisions of the federal Constitution.”

“Washington and states like it take an absurd approach to their state constitutions—actually requiring discrimination against religious students,” said IJ Vice President Clint Bolick. “The U.S. Constitution clearly does not permit discrimination either in favor of or against religion.”

The Institute is currently defending Florida’s groundbreaking Opportunity Scholarships program from a legal attack under that state’s constitution and a Blaine Amendment similar to the one at issue in Locke. IJ is also defending in court Colorado’s new school choice program, Opportunity Contracts, from a similar lawsuit on state constitutional grounds. In Maine and Vermont, IJ is challenging the exclusion of religious options from longstanding school choice programs.

“State constitutions’ religion clauses are the last legal refuge for school choice opponents—and the High Court is poised to take that away,” said IJ attorney Richard Komer, who authored IJ’s brief. “For too long, choice opponents have hidden behind discriminatory state policies that deny Constitutional rights to free speech, freedom of religion and equal protection to certain families, just because they select religious schools.”

The State of Washington relies on its Blaine Amendment, a remnant of 19th century anti-Catholic and anti-immigrant bigotry, found in 37 state constitutions. School choice opponents have used Blaine Amendments—as well as a similar provision, the “compelled support” clause, found in 29 state constitutions—to try to stop school choice programs in Wisconsin, Ohio, Arizona and Illinois. Each state’s supreme court rejected the arguments of choice opponents. The Arizona Supreme Court went further, calling that state’s Blaine Amendment “a clear manifestation of religious bigotry” against Catholics. The U.S. Supreme Court has also recognized the Blaine Amendment’s “shameful pedigree” as a legacy of long-past anti-Catholic and anti-immigrant discrimination.