The Supreme Court Can Deliver a Pivotal Win for School Choice


Today the Supreme Court hears oral arguments in an important case involving school choice and religious liberty. At issue: a state program in Missouri which provides grants to renovate school playgrounds, but excludes religious schools from receiving the money.  The Court examines if this exclusion is unconstitutional.

When the Court hears oral arguments in Trinity Lutheran Church v. Pauley tomorrow, it will be positioned to issue a decisive bookend to Zelman. In Trinity Lutheran, the Court will decide whether explicitly excluding religious options from public-aid programs violates the First Amendment’s free-exercise clause and the Fourteenth Amendment’s equal-protection clause. In other words, having determined in Zelman that states are constitutionally permitted to include religious schools in school-choice programs, the Court will now decide whether states are prohibited from discriminating against religious schools when providing public services.

As summarized by SCOTUSblog, Trinity Lutheran Church v. Pauley began in 2012. Trinity Lutheran Church of Columbia, Mo., which operates a daycare and pre-school, applied to a state grant program that helps non-profits pay to install rubber playground surfaces. The Missouri Department of Natural Resources denied Trinity Lutheran’s application, despite having ranked it fifth out of 44 submissions in a competition that resulted in 14 grants. The department said it was obliged to reject Trinity Lutheran’s bid because a provision in the Missouri state constitution bars the state from providing funds to religious entities. Trinity Lutheran sued in federal district court, arguing that its exclusion was a violation of free-exercise and equal-protection rights.

The district court rejected Trinity Lutheran’s claims, ruling that to do otherwise would raise “antiestablishment concerns.” As justification, the court cited the Supreme Court’s ruling in Locke v. Davey (2004), which allowed Washington State to deny public scholarship funding for devotional-theology degrees. On appeal, in a divided decision, the Eighth Circuit also cited Locke in upholding the district court’s ruling. Now, Trinity Lutheran hopes for a different outcome at the Supreme Court.

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