Let’s assume that a few years from now the Texas legislature enacts a voucher scheme whereby parents can take public money and use it at a private school. Let’s assume that the scheme allows that public money to be spent at any private school—including a religious one. Let’s further assume that someone challenges the constitutionality of that scheme and takes it to the U.S. Supreme Court. Based on its latest ruling on a similar issue, I’m predicting SCOTUS rules that religious schools cannot be blocked from the program.
The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was about recycled tires used to pave the playground at the church, which operates a school and daycare. Missouri made grant funding available for these new and improved playgrounds, and Trinity Lutheran applied. Its application was a good one. SCOTUS noted that it “would have received one, but for the fact that Trinity Lutheran is a church.” Missouri—like Texas—has a state constitutional provision that prohibits the use of any public money for the benefit of a religious institution. Based on that provision, Missouri rejected the church’s application. Kids continued to scrape their little Lutheran knees on a pea gravel surface, rather than harmlessly bouncing off the recycled tires.
SCOTUS held that Missouri violated the Free Exercise Clause of the First Amendment. Chief Justice Roberts cites an earlier SCOTUS case that holds that the U.S. Constitution takes precedence over the state version:
“the state interest asserted here—in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.” [Taken from Widmar v. Vincent, 454 U.S. 263 (1981).
The Chief’s opinion concludes strongly:
But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.
Suppose the “public benefit” is participation in a voucher program. If a private school is prohibited from participating in that program because it is religious, and only because it is religious, how do you think Justice Roberts would rule? I predict he rules in favor of the religious school. You can count on Alito, Thomas and Gorsuch ruling the same way. And Justices Kennedy and Kagan sided with Roberts on this one. So there are at least four SCOTUS votes in favor of vouchers for religious schools, and possibly as many as six.
We shall see.
The case of Trinity Lutheran Church of Columbia, Inc. v. Comer was decided by the Supreme Court on June 26, 2017. Seven justices ruled for Trinity Lutheran with two dissenting.
DAWG BONE: WE KINDA LIKE THE OLD DAYS, WHEN PLAYGROUNDS WERE DANGEROUS
File this one under: RELIGION
Tomorrow: the 5th Circuit gets its first opportunity to interpret the “new” FAPE standard.