National Catholic Register


Supreme Court Set to Take on School Choice Once Again

BY Kathryn Jean Lopez

June 1-7, 2003 Issue | Posted 6/1/03 at 1:00 PM


WASHINGTON — A case to be heard by the U.S. Supreme Court could be a great boon — or a great blow — to religious freedom in the United States, school-choice proponents say.

Last year, the Supreme Court ruled that using public money in Cleveland voucher programs didn't violate the constitutional rights of taxpayers, even if some of it went to religious schools. Now the court will decide whether a program that bars money from religious schools violates the constitutional rights of students.

In the short term, theology majors are particularly interested in the fate of Gov. Gary Locke, et al. v. Joshua Davey, a case that originated in Washington state.

The high court announced May 19 it would hear arguments in the case, which challenges Washington state law restricting public funding of education in the state. The case is on the court's docket for the 2003-2004 term, which begins in October.

Both sides of the school-choice debate expect the decision to be politically significant.

Joshua Davey, the plaintiff in the case, was a student at Northwest College, a Christian school founded by the Assemblies of God in Kirkland, Wash. He graduated May 10 with highest honors from the college and plans to attend Harvard Law School in the fall. As a student at Northwest, Davey was awarded a $1,125 state-funded “Promise Scholarship.”

The state award was reneged, however, because Davey wanted to use the money to major in pastoral studies at Northwest. He was double-majoring in business management.

Davey's scholarship was taken away under a 1969 Washington state law that denies state funds to students who choose degrees in theology as well as a provision in the state constitution that blocks aid to religious schools. The Washington Constitution says: “[N]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.”

As the Register reported last year, the 9th Circuit Court of Appeals struck down a lower court's ruling, citing the student's constitutionally guaranteed right to free exercise of religion. The 9th Circuit Court found that Davey had been discriminated against when the decision was made to deny him the scholarship money.

Gary Locke, the Democratic governor of Washington, is appealing the 9th Circuit Court's ruling. He argues that the 9th Circuit Court's decision would invalidate similar restrictions of state financing of religious entities or studies in 19 other states.

Even at the libertarian Cato Institute, Casey Lartigue, an education-policy analyst, said, “This case won't stand up to constitutional scrutiny. There is not a particular religion being advanced. The 9th Circuit should [blind carbon copy] their opinions to the Supreme Court, telling them, ‘Here's a head start on our latest case that should be coming your way.’”

Both sides of the school-choice divide say the implications of Locke v. Davey could reach beyond theology majors' scholarships.

“The importance of this case cannot be overstated,” said Mark Levin, president of the Landmark Legal Foundation. He said it gives the high court an opportunity to go a step beyond last year's landmark school choice decision in correctly applying the U.S. Constitution.

The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

When the Supreme Court gave a green light in a case sparked by Cleveland's voucher program, Levin said, “the Supreme Court said that the use of vouchers at religious institutions does not violate the Establishment Clause. In the Washington case, the court will determine if states violate the Establishment Clause … the court will determine if states violate the Free Exercise Clause by excluding religious institutions from their choice programs.”

In a June 2002 ruling in the Zelman v. Simmons-Harris case involving the Cleveland vouchers program, the Supreme Court decided that while the Constitution prohibits the establishment of religion, it does not require discrimination against religious schools and the parents and students who choose them.

The Supreme Court, in its Zelman ruling, reversed an appeals-court decision that struck down the Cleveland voucher program because most of the scholarship money wound up with students attending Catholic schools in Cleveland.

Opponents of public funding of religious education hope for victory from the court.

“The Davey case is extraordinarily important,” said the Rev. Barry Lynn, an ordained minister in the United Church of Christ and executive director of Americans United for Separation of Church and State. “I rarely make predictions about Supreme Court outcomes — and I never bet on them — but as an optimistic soul I'm hopeful that Washington state will prevail. States will thus retain their right to prevent taxpayers from being forced to pay for religious schools or ministries.”

School choice supporters expect the opposite, however.

Clint Bolick, author of Voucher Wars: Lessons From the Legal Battle Over School Choice, argued before the Supreme Court in the Zelman case. He is hopeful about Davey's prospects.

“We're optimistic that the Supreme Court will remove the major remaining legal obstacle to school choice by ruling that states may not discriminate against religious educational options,” Bolick said.

Davey is a good test case because the state has not acted even-handedly but has blatantly discriminated against religious options, thereby violating the First Amendment's principle of neutrality,” he said. “If the court disagrees, we will have to fight these battles state by state, as we are presently doing in defending school-choice programs in Florida and Colorado.”

Kathryn Jean Lopez is the editor of National Review Online.