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U.S. Supreme Court to Review Case That Could Affect Private School Choice

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By Mark Walsh. This post originally appeared on the School Law blog.

The U.S. Supreme Court has granted review of a church-state case that could hold major implications for government aid to religious schools.

The justices on Friday agreed to hear the appeal of a Lutheran church and preschool in Missouri that was denied a grant from a state program to use recycled tires to build safer playgrounds. 

The denial, by a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis, was based on the Missouri constitution's prohibition against providing any money, "directly or indirectly, in aid of any church, sect, or denomination of religion."

But the case, Trinity Lutheran Church of Columbia v. Pauley (No. 15-577), has significance well beyond scrap tire remnants and preschool playgrounds.

"The rule adopted by the Eighth Circuit—and numerous other courts—threatens to marginalize religious schools, churches, and other faith-based entities from public life in the United States by licensing religious discrimination against them in the administration of public benefits," says a friend-of-the-court brief filed on the Lutheran church's side by the Association of Christian Schools International, a Colorado Springs, Colo.-based group whose membership includes more than 3,000 schools in the United States (and more than 20,000 outside this country).

The potential scope of the Trinity Lutheran case is exemplified by another appeal that is pending at the Supreme Court. In Douglas County School District v. Taxpayers for Public Education (Case No. 15-557), the school district and other parties are appealing a June 2015 decision by the Colorado Supreme Court that struck down a voucher program because it aided religious schools in violation of the state constitution.

The pending appeal in the Douglas County case raises a broad question—whether language in Colorado's constitution barring government aid to religion was born of 19th Century anti-Catholic bigotry and violates the U.S. Constitution. The language against government aid to religion in Colorado's constitution, and those of about three dozen other states, are referred to as "Blaine amendments."

They are named for the 19th-century congressman James G. Blaine, who led an unsuccessful effort to amend the U.S. Constitution to prohibit public funding of "sectarian" schools at a time when Roman Catholics were pressing for government funding for parochial schools. [Click here for an in-depth explainer on Blaine Amendments.]

A More Narrow Scope

The Trinity Lutheran appeal granted by the justices on Jan. 15 was framed somewhat differently. It asks whether the 8th Circuit incorrectly interpreted a 2004 Supreme Court decision about aid to theology majors. 

In Locke v. Davey, the court upheld a Washington state scholarship program that excluded theology majors against a challenge that such an exclusion violated the First Amendment free-exercise-of-religion clause.

The Trinity Lutheran church contends the 8th Circuit court mistakenly interpreted Locke as requiring the exclusion of a church from a neutral state aid program where there was no valid concern that the aid would amount to a government establishment of religion.

"No public benefit could be further removed from the state's antiestablishment concerns than a grant for safe rubber playground surfaces that serve no religious function or purpose," said the church's appeal, which was filed by the Alliance Defending Freedom, a Scottsdale, Ariz.-based legal group. "This court should grant review to establish that, whatever Locke's scope, its holding does not apply to the wholly secular benefit of providing safe play areas for kids."

Although the Trinity Lutheran appeal downplayed the Blaine Amendment backdrop for Missouri's state constitutional language, the Supreme Court could certainly address that question.

The case is likely to be argued in March or April, with a decision due by late June.

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