Neil Gorsuch could help religious schools get public funding

By: Lance Izumi
February 10, 2017 Updated: February 10, 2017 at 6:35 pm
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photo - A school bus arrives at Trinity Lutheran Church in Columbia, Mo., on the morning of Oct. 18, 2016. RNS photo by Sally Morrow
A school bus arrives at Trinity Lutheran Church in Columbia, Mo., on the morning of Oct. 18, 2016. RNS photo by Sally Morrow 
(RNS) Neil Gorsuch, President Trump’s Supreme Court nominee, is known for his commitment to religious freedom and preventing government from discriminating against religious organizations and individuals.


If confirmed, the new justice could help sway a case that could be a landmark in American education, paving the way for public funds to go to private schools.

Trinity Lutheran Church of Columbia v. Pauley involves a Missouri state program that provides playground safety grants to schools and other organizations. The church’s preschool, applied for a grant and ranked fifth out of 44 applicants based on the overall quality of its proposed plan.

Despite the ranking, the Missouri denied Trinity a grant because it is a religiously affiliated institution. The state cited, among other things, Article IX, Section 8 of the Missouri Constitution, commonly referred to as a Blaine Amendment, which prohibits public funding of any “school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination.” Around three dozen states have Blaine Amendments in their state constitutions, including large states such as California.

Trinity Lutheran sued Missouri saying that the state’s actions, based on the Missouri Blaine Amendment, violate the free exercise, equal protection, free speech and establishment clauses of the First and Fourteenth Amendments to the U.S. Constitution.

Opponents of school choice programs that allow public funding to follow a child to private schools, including those run by religious organizations, have used state Blaine Amendments to block their implementation.

For example, seizing on Nevada’s Blaine Amendment, opponents of that state’s recently enacted Education Savings Account program, which creates government funded individual accounts for parents to pay for private schooling for their children, sued to stop the program.

Adam Laxalt, Nevada’s attorney general, argued, “Nevada’s constitution does not require religious discrimination,” but also cited Trinity Lutheran saying, “we are hopeful that our nation’s highest court will confirm that the U.S. Constitution does not allow that either.”

While the Supreme Court could decide the Trinity Lutheran case on narrow grounds, it could also decide to take on the constitutionality of state Blaine Amendments, as Laxalt would like it to do. It appears that the high court might indeed decide to do so.

Many observers had expected a decision in the Trinity Lutheran case by late 2016, but arguments have not even been scheduled yet, which leads legal experts to underscore the potential landmark importance of the case.

So how would the addition of Neil Gorsuch to the high court impact Trinity Lutheran? While it is impossible to say for sure, a clue can be gleaned by examining his opinion in Yellowbear v. Lampert. In that case, prison officials in Wyoming denied a member of the Northern Arapaho Tribe access to a sweat lodge that he said he needed to practice his religion.

In a ruling written by Gorsuch, the U.S. Court of Appeals ruled that the prison discriminated against the prisoner on religious grounds.

In Trinity Lutheran, like in Yellowbear, the issue is government discrimination based on religion. Gorsuch, therefore, could be the crucial vote needed to strike down the discriminatory Blaine Amendments. The consequences would be enormous.

As the Institute for Justice, which has litigated many school-choice cases, says of Trinity Lutheran: “if this court holds that religious-based exclusions in public-benefit programs violate the federal Constitution, it will put the argument of school-choice opponents to rest, and school-choice families will be able to continue accessing the educational options, religious or not, that are best for their children.”

Thus, following the confirmation of Education Secretary Betsy DeVos, who has campaigned in favor of school choice, Gorsuch’s confirmation to the Supreme Court could determine the future direction of American education.

(Lance Izumi is Koret senior fellow in education studies and senior director of the Center for Education at the Pacific Research Institute. He previously served as speechwriter to U.S. Attorney General Edwin Meese in the Reagan administration)



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