Commentary

Court Won’t Deliver Goods in Scholarship Case

By Marie Gryphon
January 16, 2004

As families clean up and move on from the 2003 holidays, the Supreme Court wonders whether it should give a very large present to those families that need educational choice this year. With hopes raised by the Court’s beneficent decision in 2002 upholding vouchers under federal law, choice advocates and the children they represent wait eagerly for more legal goodies.

A Supreme Court challenge to Washington State’s Higher Education Coordinating Board’s refusal to fund a Promise Scholarship for a college student majoring in ministry, Davey v. Locke, is primarily a case about religious discrimination. The federal court of appeals agreed with student Joshua Davey that, when the State of Washington rescinded his scholarship because of his religious major, it violated his federal constitutional right to neutral treatment of his religion.

Washington now argues before the Supreme Court that the Court should excuse its unequal treatment of Davey because it had a compelling reason to discriminate. That reason, it suggests, is compliance with the state constitution’s Blaine Amendment, which does not allow the scholarship to go to Davey.

Present in the constitutions of 37 states, the Blaine Amendments are the biggest legal barrier to school choice programs. States adopted these amendments during a wave of anti-Catholic prejudice in the late 1800’s. At the time, public schools were not secular as they are now, but taught Protestant religious doctrine. Large numbers of immigrants from non-Protestant countries such as Ireland and Italy objected to the one-sided subsidy that prevented them from sending their children to schools they had already paid for in good conscience.

State leaders rushed to adopt the restrictive Blaine Amendments to head off the possibility of programs that would subsidize Catholic education. Today, they prohibit any public voucher or scholarship program that includes religious schools, regardless of whether the programs are neutral and inclusive in nature, and regardless of the desire of any parent to choose a religious school.

The federal appeals court that heard Joshua Davey’s case last year was not impressed with Washington’s argument. It decided that a Blaine Amendment is no excuse for discrimination. Critically, it stuck down the part of the scholarship law that excludes religious study, not the Blaine Amendment itself.

This is a critical distinction for those who hope to bring choices to the masses. Choice advocates hope that the Supreme Court will go a step further and strike down Washington’s Blaine Amendment, a move that would clear the way for school choice around the country. But the Supreme Court seldom decides bigger issues than it must, and the smart money is on a narrowly crafted affirmation of the appeals court’s decision.

Choice advocates regard any decision in favor of Davey as a stocking stuffer. But this small present may prove to be a lump of coal for states with strict Blaine Amendments. It would leave Washington’s Promise Scholarship program and similar programs in other Blaine states vulnerable to future lawsuits that could shut them down entirely.

The problem goes like this. Suppose the Supreme Court agrees with the appeals court that scholarship programs violate the federal constitution if they exclude religious schools. Suppose also, as is likely, that Washington courts continue to rule that scholarship programs violate the state constitution if they include religious schools. The result would be that there is no such thing as a legal voucher program in Washington, either for college students or for children. The only way to comply with the federal and state constitutions at the same time is not to have any voucher program at all.

None of the foregoing means that Davey should lose. Discrimination is a serious problem. The state should not be allowed to pick and choose between religious and nonreligious programs when it offers student scholarships. But school choice advocates who hoped this case would end their legal woes will need to seek relief elsewhere.

For example, a case now pending in Florida challenges its Blaine Amendment more directly. When several groups sued to stop Florida’s Opportunity Scholarship program for children in failing public schools, the state defended itself by arguing that the state’s Blaine Amendment itself was an unconstitutional attempt to harm religious minorities, especially Catholics.

When, and if, the Florida case reaches the Supreme Court, choice advocates may receive the big gift for which they are hoping. Until then, they may have to contend with a good decision that results in a bad outcome. A victory for Joshua Davey could turn all Blaine Amendment states into no-fly zones for school scholarships and vouchers.

Marie E. Gryphon is a former practicing attorney and an education policy analyst at the Cato Institute.