WASHINGTON ― Two Supreme Court cases decided this week could have major implications for school choice across the United States, as they could make it possible for some states to put funding toward scholarships at private, religious schools.
One ruling vacated a lower court decision that struck down a so-called school voucher program in Colorado, which gave students state-funded scholarships that could be used at such schools. The other determined that the Missouri Department of Natural Resources did not have the right to exclude a church from participating in a state-funded grant program for playground resurfacing.
Both advocates for and opponents of school choice have declared the Missouri decision a victory. The narrow ruling prevented a decision in favor of using state funds for religious organizations in general, opponents say. And the other side argues that the ruling means the government can’t exclude religious organizations from public benefit programs.
Some state constitutions, including Missouri’s, include an amendment that prohibits using public funds to support any religious organization. These passages, called Blaine Amendments, have proved to be an obstacle for school voucher programs in many states.
Some advocates of school choice claim that Blaine Amendments discriminate against religious schools. The Institute of Justice, a libertarian public interest law firm, filed an amicus brief in the Missouri case over whether the preschool associated with Trinity Lutheran Church had the right to compete for the grant.
“The Blaine Amendments are vestiges of 19th-century bigotry, not some high-minded statement about church-state relations. The Court was right to prohibit these engines of animus against Catholics from being transmuted into engines of discrimination against all religion,” IJ senior attorney Dick Komer said in a statement.
But opponents of school choice argue that Blaine Amendments protect the separation of church and state. The National Education Association also filed an amicus brief in the playground case, arguing that the Supreme Court should respect states’ independent interpretations of their constitutional provisions on the issue of separating church and state.
Yet both groups celebrated Monday’s Supreme Court ruling.
The decision reaffirms the importance of the government staying neutral with respect to religion, said Michael Bindas, a senior attorney with the IJ.
“This principle of religious neutrality — that government may neither favor nor disfavor religion — applies whether the government is enabling schools to resurface their playgrounds or empowering parents to direct their children’s education,” he said in a statement.
NEA President Lily Eskelsen Garcia also voiced her support.
“We applaud the Supreme Court’s refusal to accept the invitation of voucher proponents to issue a broad ruling that could place in jeopardy the ability of states to protect their public education system by refusing to divert public school funding to private religious schools,” she said in a statement.
[The court's] decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both. Supreme Court Justice Sonia Sotomayor
Education Secretary Betsy DeVos, a vocal proponent of school choice, praised the ruling. “This decision marks a great day for the Constitution,” she said in a statement.
Supreme Court justices deliberately did not address “religious uses of funding,” choosing to specifically consider whether public funds could be used to improve a church playground. Justices Clarence Thomas and Neil Gorsuch, who agreed with the rest of the opinion, took issue with the exclusion of “religious usage of funding” and argued that there is no clear distinction between religious use of funds and use of funds by a religious institution.
Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented with the majority opinion, expressing concerns about the implications of the ruling.
“The Court today profoundly changes that relationship [between church and state] by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church,” Sotomayor wrote. “Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”
IJ’s Komer emphasized that different states interpret their Blaine Amendments in different ways: States with narrow interpretations make a distinction between aid that goes directly to religious institutions and aid that goes to students who may choose to spend the money at a religious school.
This week’s rulings could change things for states with broader interpretations, he said.
“To get a sort of feel for the potential breadth of the decision, read the dissent, which is Justice Sotomayor joined by Justice Ginsburg,” Komer told HuffPost. “They have sort of a Chicken Little belief that this is the end of the wall of separation of church and state, which is of course somewhat nonsensical. But it does affect any interpretation of Blaine Amendments going forward, and there’s 37 states that have Blaine Amendments in their state constitution.”
On Tuesday, the court took another action that could affect the availability of school vouchers: It moved to vacate the judgment in Doyle v. Taxpayers for Public Education, in which the Colorado Supreme Court had struck down a voucher program in Douglas County that was found to violate Colorado’s Blaine Amendment.
IJ, which defended the county’s Choice Scholarship Program on behalf of three families whose children lost scholarships when the program ended, heralded the decision as a “major win.” The order indicated that the Supreme Court would not tolerate the use of Blaine Amendments to exclude religious options from school choice programs, Bindas said.
CORRECTION: A previous version of this story misattributed Dick Komer’s comments to HuffPost to IJ’s vice president of communications, John Kramer. We regret the error.