The Beginning of the End for Blaine?

June 27, 2017

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(Guest Post by Jason Bedrick)

Yesterday, the U.S. Supreme Court ruled in Trinity Lutheran that the U.S. Constitution prohibits the government from excluding otherwise eligible religious organizations from benefitting from publicly funded programs merely because they are a religious organization. (I discussed the implications here.) However, Footnote 3 said:

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.

So, does the case have broader implications beyond playgrounds? Interestingly, Chief Justice Roberts “delivered the opinion of the Court, except as to footnote 3,” and two additional justices, Gorsuch and Thomas, concurred in the opinion but not in the footnote, explaining:

Of course the footnote is entirely correct, but I worry that some might mistakenly read it to suggest that only “playground resurfacing” cases, or only those with some association with children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal rules recounted in and faithfully applied by the Court’s opinion. Such a reading would be unreasonable for our cases are “governed by general principles, rather than ad hoc improvisations.” […] And the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else.

Today, SCOTUS has indicated that its ruling in Trinity indeed does have implications beyond the playground. The Court has vacated the Colorado Supreme Court’s decision that struck down the Douglas County voucher program based on the state’s Blaine Amendment, and ordered the Colorado Supreme Court to reconsider the case “in light of [the] Trinity Lutheran” decision.

If Trinity Lutheran indeed does apply to school vouchers (Footnote 3 notwithstanding), then it could spell the beginning of the end for the odious Blaine Amendments.

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Two Court Cases Plus Two Voucher Studies Equals Four School Choice Wins

June 26, 2017

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(Guest Post by Jason Bedrick)

There’s so much good news for school choice today, it’s hard to know where to begin.

A Legal Victory in the Peach State

I woke up this morning to the news that the Georgia Supreme Court had unanimously ruled that private donations to private nonprofit scholarship organizations that help children attend private schools are (shocker!) private funds, even if the donors receive a tax credit:

We also reject the assertion that plaintiffs have standing because these tax credits actually amount to unconstitutional expenditures of tax revenues or public funds. The statutes that govern the Program demonstrate that only private funds, and not public revenue, are used.

I discuss the case and its implications in greater detail here.

SCOTUS Strikes Down Discrimination Against Religion — But Saves Blaine for Another Day

A couple hours later, the U.S. Supreme Court ruled 7-2 in Trinity Lutheran v. Missouri that it is unconstitutional to exclude religious organizations from benefiting from secular aid programs that are otherwise neutral with respect to religion. As Neal McCluskey explains, the court didn’t go as far as many school choice advocates would have liked, but it is unambiguously a step in the right direction. Writing for the majority, Justice Roberts wrote:

It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, as the Department itself acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” […] As the Court put it more than 50 years ago, “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.” […]

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character. The “imposition of such a condition upon even a gratuitous benefit inevitably deter[s] or discourage[s] the exercise of First Amendment rights.” […] The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant. [citations removed]

The Court made sure to note that it was not overturning Locke v. Davey, in which the Court held that it did not violate the Free Exercise Clause for the state of Washington to deny funding to a student who was attending a post-secondary religious school to pursue a “devotional theology degree.” Although the “selective funding program” generally allowed students to attend both religious or secular colleges, the funds couldn’t be used to pursue a purely religious education for the purposes of becoming a religious minister. In Trinity, SCOTUS clarified that “Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry.”

Left open is the question of whether the state can prohibit families from using school vouchers at religious schools. If the voucher program is intended to give parents more choices among schools that teach reading, math, science, etc., then seemingly it shouldn’t matter whether school that teach those subjects have a religious affiliation. Indeed, Justices Gorsuch and Thomas clearly indicated they wished the majority had gone further (“the general principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else”), while Justice Breyer likened the playground resurfacing program at issue in the case to churches benefiting from police or fire protection, but saw no need to address the question of private school tuition. Tomorrow SCOTUS will announce whether it will consider the Douglas County, Colorado voucher case, which would give it the opportunity to answer that question.

Louisiana and Indiana Voucher Studies: Neutral to Positive Outcomes After a Few Years

I’ve already run long and I know that others will be writing about them soon, so I won’t dive deep into the Louisiana and Indiana voucher studies today. In short, they each find that the negative impacts on test scores that voucher students experience in the first couple years of participating in a voucher program disappear by the third year. Indeed, Indiana finds some positive effects in years three and four.

Given that states spend significantly less per pupil on voucher students than at district schools, performing as well or better after just a few years in the program should be exciting news for choice supporters. However, I confess that I am uneasy. Both Indiana and Louisiana mandate that private schools administer the state test to voucher students and I am concerned about how that mandate might warp how schools educate children — a concern I have about both district and private schools. Test scores measure only a small slice of the value that parents want schools to provide their children, and as Jay pointed out yet again yesterday, there’s a disconnect between educational measures and life outcomes. It’s great if school choice improves test scores, but the ability to choose shouldn’t be predicated on raising test scores — especially if doing so creates perverse incentives that distort education.

In summary: Three cheers for the court victories and one cheer for the voucher studies.