Monday, July 10, 2017

The Supreme Court, religion and the future of school choice

The Supreme Court, religion and the future of school choice:

The Supreme Court, religion and the future of school choice

The Supreme Court recently decided that Trinity Lutheran Church should be eligible for a Missouri state grant covering the cost of recycled playground surfaces. Though the state originally rejected the church’s application on grounds of separation of church and state, the Supreme Court ruled that this rejection was, in fact, religious discrimination.
The case’s impact will probably reach well beyond playgrounds.
As a scholar of education law, I’ve been following the Trinity Lutheran case and what it could mean for the hottest issue in education: school choice. Where in the past states have decided for themselves whether religious schools are eligible for school vouchers and scholarship tax credits, the Trinity Lutheran decision likely signals that the Supreme Court will soon require states to include religious private schools in their programs.
This would be a huge win for school choice advocates and would complete a revolution in the Supreme Court’s understanding of the law on government funding of religious institutions.

Of church playgrounds and discrimination

In 1995, Missouri established a program offering reimbursement grants to qualifying nonprofits that installed playground surfaces made from recycled tires. Trinity Lutheran Church, which runs a preschool and daycare center, applied for a grant in 2012, but the state rejected the church’s application. Why? The Missouri Constitution states that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”
Trinity Lutheran challenged the state’s decision as a violation of the Free Exercise Clause, and in June the U.S. Supreme Court agreed.

The Scrap Tire Surface Material Grant was awarded to two applicants in the 2017 fiscal year. ssedroCC BY-NC-ND

This result will strike many as intuitively correct. A playground is a playground whether or not it’s run by a church, so the threat to separation of church and state seems slim, and the cry of religious discrimination seems plausible.
The case’s reasoning, however, may signal a significant shift in how the law views the separation of church and state. To understand why, we need to review some history.

1784: Three pence to religious education

In 1785, James Madison wrote his ‘Memorial and Remonstrance Against Religious Assessments,’ asserting that religion should be kept separate from government. Library of Congress

In 1784, Patrick Henry proposed a bill in the Virginia legislature that would have levied a tax to support “teachers of the Christian religion” (i.e., ministers). James Madison, however, successfully opposed the bill.
On the question of funding religion with tax money, Madison asked: “Who does not see that the same authority which can force a citizen to contribute three pence only of The Supreme Court, religion and the future of school choice:

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