On February 25, 2004, the United States Supreme Court announced its ruling in Locke v. Davey, holding that Washington State is allowed to deny scholarship funds to students studying devotional theology. Justice Rehnquist wrote for the majority: “The State of Washington established the Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use the scholarship at an institution where they are pursuing a degree in devotional theology. We hold that such an exclusion from an otherwise inclusive aid program does not violate the Free Exercise Clause of the First Amendment.”
Background
In 1999, the Washington Legislature created the Promise Scholarship program, which offers scholarships to students graduating from a public or private high school located in the state. To receive the scholarship, a student must meet certain academic, income and enrollment criteria. When a student enrolls at an eligible educational institution, the school confirms the student’s enrollment requirements.
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Davey sued the state of Washington, arguing that Washington’s refusal to provide him with a Promise Scholarship violated the state and federal constitutions. The trial court rejected Davey’s challenge, finding that the state’s action did not violate the Free Exercise Clause of the First Amendment to the U.S. Constitution. It also rejected Davey’s other constitutional claims. Davey appealed and the U.S. Court of Appeals for the Ninth Circuit reversed the lower court’s ruling, finding that the state’s action violated Davey’s free exercise rights. The Ninth Circuit did not address Davey’s other constitutional claims. The state of Washington asked the Supreme Court to hear the case and, on May 19, 2003, the Court agreed to do so.
In terms of its practical impact, the ruling in this case could affect not only government aid programs for students who attend religious colleges and universities, but also government voucher programs for elementary and secondary education and faith-based initiatives in which government funding flows to religious social service providers.
For example, the Supreme Court ruled in 2002 that the U.S. Constitution allows religious schools to participate in “neutral” voucher programs that offer a “genuine choice among options, public and private, secular and religious.” But a remaining barrier to the implementation of some voucher plans is the fact that a number of state constitutions have or could be interpreted to bar them. This case may determine whether those stricter state limits are themselves constitutional under the federal constitution.
A Pew Forum publication entitled School Vouchers: Settled Questions, Continuing Disputes briefly explored some of these issues, as did a Forum conference, jointly sponsored with the UNC First Amendment Law Review, which focused on the issue of state constitutional restrictions on government aid and religious institutions. The Forum has an issue page on school vouchers that contains these resources and others, as well as an overview of the Supreme Court’s ruling in the Cleveland school voucher case, and the latest news clips on current debates over school voucher programs.
Oral argument before the Court in the Locke v. Davey case was heard on December 2, 2003, and, as noted above, the decision in favor of Locke was handed down on February 25, 2004. On February 27, 2004, the Pew Forum hosted a discussion of the decison. Read the transcript.
Resources from the Courts
Opinion Brief of Petitioner: Governor Gary Locke, Governor of Washington, et al. Brief of Respondent: Joshua Davey Brief of the Solicitor General of the United States Reply Brief Supreme Court Docket Joint Opening Brief Transcript of Oral Argument
Amicus Briefs in support of Petitioner: American Civil Liberties Union American Jewish Congress Anti-Defamation League Historians and Law Scholars National Education Association National School Boards Association State of Vermont
Amicus Briefs in support of Respondent: Black Alliance for Educational Options Becket Fund for Religious Liberty Common Good Legal Defense Fund and Your Catholic Voice Foundation Conference of Catholic Bishops Council for Christian Colleges & Universities, et al. Fairness Foundation Institute for Justice Landmark Legal Foundation Liberty Counsel National Jewish Commission on Law and Public Justice Religious Universities and Colleges, et. al. Solidarity Center for Law and Justice State of Alabama State of Florida States of Texas, Mississippi and Utah Teresa M. Becker
