Will the Supreme Court boost the Trump-DeVos “school choice” agenda?
It just may.
The court on Wednesday heard a case called Trinity Lutheran Church of Columbia v. Pauley. It involves a Lutheran church in Missouri and its preschool, which had sought a grant from a state program to use scrap tires for a playground. The request was denied because of an 1875 provision in the state constitution — known as a Blaine Amendment — that forbids using public money “directly or indirectly, in aid of any church, sect, or denomination or religion.” The church and preschool sued the state, citing the First Amendment, but lost in a federal district court. A federal appellate court upheld the decision by the state, and it was appealed to the U.S. Supreme Court.
My Post colleague Robert Barnes wrote in this story that at the Wednesday hearing, justices seemed sympathetic to the church. He wrote:
Even some of the court’s liberal justices expressed concern that the state had drawn too hard of a line in saying the fact that a day-care and preschool site is controlled by a church, Trinity Lutheran in Columbia, is reason enough to bar it from the program.
“You’re depriving one set of actors from being able to compete in the same way everybody else can compete, because of their religious identification,” Justice Elena Kagan told a lawyer for the state. In such a case, she said, the state’s interests “have to rise to an extremely high level.”
The current Missouri governor has reversed the policy, but lawyers for both sides said the case is not moot because the policy could be changed again by another governor.
So what does this have to do with President Trump and Education Secretary Betsy DeVos’s big push to expand school choice?
DeVos is a longtime advocate of charter schools, which are publicly funded but privately run, as well as voucher and other programs that use public money for private and religious school tuition and expenses. She has made clear that expanding school choice is her top priority, and has referred to traditional public schools as a “dead end” for students. Trump has said he wants to spend $20 billion to help states expand voucher programs and other school alternatives.
The Supreme Court has several options with the Trinity case. It could decide not to rule, or issue a narrow ruling that doesn’t directly affect the current interpretations of the Blaine Amendments, or hand down a broader ruling that declares them unconstitutional.
The Blaine Amendments — which are worded differently in various state constitutions — are part of the constitutions of a majority of states. They have prevented some legislatures from adopting and implementing school voucher programs. Lower courts have offered different interpretations of Blaine Amendments; for example, the supreme courts in Wisconsin and Arizona upheld voucher programs in their states, while the high court in Colorado declared one unconstitutional.
If the court were to declare these amendments unconstitutional, voucher programs could proliferate. According to the National Conference of State Legislatures, 14 states provide state-funded school vouchers to qualifying students. There is one federally funded voucher program, which is in the District of Columbia.
Voucher supporters argue that the Blaine Amendments discriminate against religious institutions. Voucher opponents say that they protect the doctrine of “separation of church and state” that has been interpreted as the meaning of the Establishment Clause and Free Exercise Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In the 1947 Everson v. Board of Education of the Township of Ewing case, the Supreme Court wrote that the Establishment Clause does create a “wall of separation” between church and state and that this means that, at the very least, no “tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
If the high court justices decide not to rule in the Trinity case, or issue a narrow ruling that does not address the Blaine Amendments, they could get another chance to more directly address the issue with an upcoming Colorado case. The court has agreed to hear arguments in the case Taxpayers for Public Education v. Douglas County School District. In 2015, the Colorado Supreme Court struck down a school voucher program, saying it violated the Blaine Amendment in the state constitution.
The Supreme Court has already declared scholarship tax-credit programs constitutional. They have the same goal of using public money for private education, but they work differently. They allow individuals and corporations to receive full or partial tax credits when they donate to nonprofit organizations that provide private school scholarships. In some states, donors get a dollar-for-dollar state tax deduction and are then allowed to take a deduction on their federal income tax, too. The National Conference of State Legislatures says that as of January, 17 states have scholarship tax-credit programs, with some of the states having more than one such program.
Republican governors have led the charge at the state level to pass voucher and tax-credit programs, but there are Democrats who support them, too, though there is no evidence that voucher schools get better academic outcomes than public schools. A new study reports that there is no evidence that school vouchers offer students real academic advantages and are a proven education reform strategy.
The newest member of the Supreme Court, the conservative Justice Neil M. Gorsuch, could be the deciding vote in favor of a ruling that could lead to the expansion of voucher programs.
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