Opponents of school vouchers hailed last week鈥檚 7-2 ruling by the U.S. Supreme Court upholding a Washington state scholarship program that denies aid to theology majors, while supporters called it a narrow ruling that left the legal battleground over vouchers virtually unchanged.
Disappointing proponents of tuition aid for students in religious schools, the court held that Washington state was well within its rights to exclude students training for the ministry from its Promise Scholarship Program, which subsidizes college costs for high-achieving students of modest means.
鈥淭raining someone to lead a congregation is an essentially religious endeavor,鈥� Chief Justice William H. Rehnquist wrote for the majority in Locke v. Davey (Case No. 02-1315). 鈥淭hat a state would deal differently with religious education for the ministry than with education for other callings is ... not evidence of hostility toward religion.鈥�
Lawyers for former college student Joshua Davey had argued otherwise, and the two dissenting justices in the case, Justices Antonin Scalia and Clarence Thomas, agreed with them. But the majority accepted Washington state鈥檚 argument that it was entitled under its own constitution鈥檚 ban on financing religious instruction to protect taxpayers鈥� freedom of conscience by prohibiting students from using scholarships to pursue theology degrees.
Although the case was based on college aid, supporters of vouchers for elementary and secondary schooling had hoped the justices would use it to go beyond their landmark 2002 ruling upholding Ohio鈥檚 school voucher program in Cleveland.
That decision, in Zelman v. Simmons-Harris, held that states could include religious schools in voucher programs鈥攁s long as parents had a choice among religious and secular schools.
Voucher supporters had hoped that in Locke, the court would establish that such programs must include religious schools.
鈥淚 think that they thought they were going to win this case and win it big,鈥� said Michael D. Simpson, a lawyer with the National Education Association, which is fighting voucher programs in Florida and Colorado. 鈥淚f we had lost Locke, then it would have made it much more difficult to win the Florida and Colorado cases.鈥�
Voucher supporters don鈥檛 dispute that point.
鈥溾�楲ost opportunity鈥� is the way to conceive of it,鈥� said Clark Neily, a senior lawyer with the Institute for Justice, a Washington-based legal-advocacy center that is helping to defend the Florida and Colorado programs.
A Look to France
Beyond the voucher issue, some analysts saw the ruling as a potential obstacle to allowing faith-based organizations to provide the tutoring that some students are entitled to under the federal No Child Left Behind Act.
鈥淭his case makes it pretty clear that you can鈥檛 trump a state constitution,鈥� said Julie Underwood, the general counsel of the National School Boards Association.
鈥淚n our march toward privatization, and that鈥檚 what I think we鈥檙e looking at with No Child Left Behind, this kind of throws up a roadblock,鈥� Ms. Underwood said.
In upholding the Washington state program, Chief Justice Rehnquist stressed the long tradition of states鈥� refusal to finance the training of clergy.
鈥淪ince the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an 鈥榚stablished鈥� religion,鈥� he wrote.
Justice Scalia disputed that reading of history.
鈥淭hat history involved not the inclusion of religious ministers in public benefit programs like the one at issue here, but laws that singled them out for financial aid,鈥� he said. He argued that the majority鈥檚 view could be expanded in unexpected directions.
"[R]ecall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the court embraces today,鈥� Justice Scalia said.
The chief justice stressed the limitations of the majority ruling. "[T]he only interest at issue here is the state鈥檚 interest in not funding the religious training of clergy,鈥� he wrote.
Pointing to that statement, Mr. Neily of the Institute for Justice said that anyone who claimed that the court had resolved the question of whether voucher programs must include religious schools if they offer aid for secular ones was 鈥渨oefully mistaken.鈥�
鈥淢y response to anybody who brings up this case in court will be, 鈥業s this voucher program training kids to be ministers? OK, no? All right, Davey doesn鈥檛 apply,鈥欌�� Mr. Neily said.
Besides Florida and Colorado, the case might come up in lawsuits that the Institute for Justice is backing in Maine and Vermont. There, parents have sued to allow students in towns without public schools to attend religious as well as secular private schools at public expense as part of the long-standing practice of 鈥渢uitioning.鈥�
The NEA鈥橲 Mr. Simpson described last week鈥檚 ruling as a major setback to the challenges in those two New England states.
鈥淲hat was encouraging about Chief Justice Rehnquist鈥檚 opinion was that it said it was all right to fund a secular education and to refuse to fund a religious education,鈥� Mr. Simpson said. 鈥淚 think that blows them out of the water in Maine and Vermont.鈥�
About three dozen states鈥攊ncluding Washington state鈥攈ave constitutional provisions that in some way prohibit public funding of religious education. Referred to by voucher supporters as 鈥淏laine amendments,鈥� they get their name from the 19th-century congressman James G. Blaine, who led an unsuccessful effort to amend the U.S. Constitution to prohibit public funding of 鈥渟ectarian鈥� schools at a time when Roman Catholics were pressing for funding for parochial schools.
鈥楶lay in the Joints鈥�
In Locke v. Davey, pro-voucher groups argued that Washington state鈥檚 aid restriction flowed from a Blaine-style provision in its constitution and thus was tainted by anti-Catholic bigotry.
But Washington state insisted that its college-scholarship policy was occasioned by the religious-freedom clause in its constitution鈥攚hich bars public money for religious instruction鈥攁nd not a separate, Blaine-like ban on aid to sectarian schools.
Chief Justice Rehnquist noted that distinction in a footnote.
鈥淎ccordingly, the Blaine amendment鈥檚 history is simply not before us,鈥� he wrote.
He cited Washington state鈥檚 scholarship policy as an example of the 鈥減lay in the joints鈥� that the court has found to exist between what is permitted under the First Amendment鈥檚 prohibition on government- established religion but not required under the amendment鈥檚 guarantee of free exercise of religion.
鈥淚f any room exists between the two religion clauses, it must be here,鈥� he wrote. 鈥淲e need not venture further into this difficult area in order to uphold the Promise Scholarship Program.鈥�
