Trump’s Supreme Court Pick Could Tilt Balance For School Choice

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The U.S. Supreme Court will soon be hearing the case of Trinity Lutheran Church of Columbia Inc., v. Pauley.  Despite being about recycled tires that can be used to resurface playgrounds, it may have a far-reaching impact on movements for school choice and religious liberty.

The Missouri Department of Natural Resources offers grants for playgrounds to turn scrap tires into soft surfaces for playgrounds. The Trinity Lutheran Church of Columbia, which operates a daycare with an attached playground, applied for such a grant. Despite a high ranking in the grant process, the daycare was ultimately denied a grant due to Missouri’s Blaine Amendment.  The Missouri Constitution (Article 1, Section 7) 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, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

Blaine Amendments are named for James G. Blaine, a 19th century congressman from Maine.  He proposed an amendment to the U.S. Constitution that would have prohibited states from funding religious education. Although his proposed amendment failed to pass at the federal level, many states succeeded in passing them at the state level. Currently, Blaine Amendments exist in thirty-seven states, including Massachusetts.

At the time, public schools taught various forms of Protestant religious faith; however, Catholic parents wanted their children to be raised in their own religion. Accordingly, these amendments were passed to prevent funds for being used for “sectarian” purposes. It was not a situation of “separation of church and state,” since public schools taught religious faith and students engaged in prayer; rather, the amendments were targeted at members of a particular, minority faith.

The Trinity Lutheran case rests on the idea that Blaine Amendments violate the First and Fourteenth Amendments to the U.S. Constitution, specifically, the Free Exercise Clause and the Equal Protection Clause. (As a violation of the U.S. Constitution cannot be remedied by a state constitution measure, such a violation would render the amendments unenforceable.)

In the situation of Trinity Lutheran, the school would be eligible to receive the recycled tires if it were public or a non-religious private school. The school is not asking for special treatment; it is only asking to be treated identically to non-religious private schools. (This has been mischaracterized as saying that the argument of petitions would mean that the Constitution would require states to fund religious institutions; however, the issue is that they be funded identically to similarly-situated non-religious private institutions and not discriminated against for having a religious basis or being affiliated with a church. Moreover, the Trinity Lutheran case is about recycled tires — hardly the stuff of establishment of religion.)

The case is supported both by advocates of religious liberty and by advocates of school choice. Religious liberty supporters understand the discriminatory origins of Blaine Amendments — a discriminatory origin and intent that, if shared by other laws or state constitutions, would be in violation of the U.S. Constitution.

For advocates of school choice, the Blaine Amendments are another antiquated roadblock to improving educational outcomes and enabling parents to find the institution to best fit the needs of their children. In 2002, the federal Supreme Court ruled in Zelman v. Simmons-Harris that Ohio’s school voucher program, which allowed parents to receive vouchers to use at a wide variety of public and private schools, did not violate the Establishment Clause when parents were allowed to use the vouchers at religious schools. (Since religious schools comprised 82 percent of the participating private schools, barring the students from using vouchers for religiously-affiliated schools would have radically reduced their options.)

In rejecting the challenge to Ohio’s law, Chief Justice William Rehnquist wrote:

“It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”


“True private choice” is the rallying cry of the school choice movement. The belief is that parents are generally best equipped to determine their child’s own needs, balance the various factors that are important to their families (such as location, commute, size of school), and that private choice will improve outcomes.

The core of the opposition is an assumption that a local, zip-code-determined public school has the first and highest right to the funds used to educate local children, regardless of what is best for that particular child.

If laws as openly discriminatory as Blaine Amendments can be used to bar grants for items as benign and non-secular as rubber tires from going to religiously-affiliated institutions, it will hamper the school choice movement and the movement for religious liberty.

Oral arguments have not yet been scheduled. How might the case go?

Zelman v. Simmons-Harris in 2002 was decided by a narrow 5-4 majority in favor of allowing parents in Ohio to use school vouchers for religious schools. Justices Anthony Kennedy and Clarence Thomas are the only justices who ruled in the majority who are still on the bench. They will likely be joined by Chief Justice John Roberts and Justice Samuel Alito in Trinity Lutheran. The other four (Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elana Kagan) are likely to vote the other way.

The outcome of the case will likely hinge on whether or not President Donald Trump’s choice to replace the late Justice Antonin Scalia is appointed in time to join in the decision. If there is a 4-4 split on the Supreme Court, the decision of the lower court will stand; the Eighth Circuit ruled against Trinity Lutheran Church. However, a Trump appointee could provide the margin of victory for school choice and religious liberty.


Bridget L. Fay is an attorney and a former chemical engineer. She lives in Massachusetts.