Similarly to the Trinity Lutheran Church case in Missouri and the Espinoza case in Montana, the court held that allowing students to take their public dollars to a religious school of their choice does not establish an official state religion any more than using a Pell grant at a religious university does. The ruling does not require states to fund school choice. But, if they have a school choice program, they may not exclude religious schools from participating.

Beginning this fall, qualified Missouri families can apply for an Empowerment Scholarship Account (ESA) to be used to pay for, among other things, tuition at a private school. Five of the six approved Education Assistance Organizations (EAOs) that will be disbursing the scholarships are religious. The latest Supreme Court ruling should put to bed any questions as to whether anyone should take issue with that.

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To read the essay, click on the link below. For a brief video on the topic, click here.

The post Bryce’s Law Revisited: Serving Missouri’s Neediest Students through Targeted Scholarships appeared first on Show-Me Institute.

Parents of children with special needs face especially daunting challenges. Upon finding out that they will be raising a child with a disability, they must immediately learn as much as they can about their child’s condition. As the child approaches school age, the parents have to think about so much more than just a classroom and a teacher. It’s not surprising, therefore, that parents of students with disabilities have a particular need for more options regarding their child’s education.

Fortunately, four years ago the Missouri legislature recognized this need and passed Bryce’s Law, named for Rep. Dwight Scharnhorst’s grandson, who was born with severe autism. Bryce’s Law allows parents of children with autism, Down Syndrome, and several other disabilities to seek scholarships through certain scholarship-granting organizations to attend private schools.

Unfortunately, the legislative process resulted in a final bill that was materially different than the one Scharnhorst proposed. The final version of the law was structured in such a way that not a single child has received a scholarship. In fact, not even one of the contemplated scholarship-granting organizations has even materialized. Imagine the hundreds or thousands of children who have missed out on scholarships because elected officials in Jefferson City failed to draft an effective means for providing those scholarships.

The law will be up for renewal in 2019. Isn’t it time for the state of Missouri to put real funding behind Bryce’s Law and ensure it is a functioning program that can help Missouri students with special needs?

There were concerns in the past with “public” funding going to “private” (often religious) schools, but the recent Supreme Court decision in Trinity Lutheran v. Comer, from right in our back yard in Columbia, would seem to permit such funding so long as it was generally available to religious and nonreligious schools alike and that religious schools were neither favored nor disfavored in the application process.

If directly funding Bryce’s Law is a bridge too far, allowing the contributions to scholarship-granting organizations to be tax credits instead of tax deductions (as Rep. Scharnhorst had originally intended) is also a possibility. In that case, it would be the contributions of private citizens rather than money from the public treasury that would fund the scholarships. The state of Missouri already offers a raft of pro-social tax credits for everything from child advocacy and crisis pregnancy centers to food pantries to youth development and crime prevention programs. Scholarships for students with special needs are an equally worthy cause.

Note that families don’t have to attend private schools. If they are being well served by their assigned public school, they can stay there. If, however, that public school is not meeting their child’s needs, they would have a chance to give another school a try.

There is a bitter irony to having a law on the books that could do so much for children with special needs, but cannot deliver the promised benefits because it fails to provide a viable funding mechanism. The time is ripe for the Missouri Legislature to fix its past mistakes and put Bryce’s Law to work for the families it was intended to help.

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Judge Brett Kavanaugh has not had the opportunity to rule on many education cases, as there is only one school district in the DC Circuit Court’s jurisdiction. However, he has written essays and amicus briefs on school choice cases. He clearly supports the notion that religious schools and institutions should be able to receive state funding provided that “the funding was pursuant to a neutral program that, among other things, included religious and nonreligious institutions alike.”

Like many states, Missouri has a Blaine amendment in its Constitution. These amendments, originally intended to discriminate against the waves of Catholic immigrants coming from Europe, are used as cover to prevent parents from spending their children’s state education dollars anywhere other than their assigned public school. (For more on Blaine amendments and some additional thoughts on the Kavanaugh nomination, see my colleague Mike McShane’s recent Forbes piece here.) Ironically, the U.S. Supreme Court took up a case in 2017 that focused on a Missouri church-affiliated preschool’s access to public grant money for playground resurfacing. While the court found in favor of Trinity Lutheran Church, the finding was narrow and Missouri’s Blaine Amendment still stands.

Judge Kavanaugh has spoken approvingly of Justice William Rehnquist and the impact that his writings on the Establishment Clause had on Trinity Lutheran and other cases. He was also part of the defense team when Governor Jeb Bush was sued over the Florida voucher program. It will be interesting to see how this son of a public school teacher contributes to court decisions on education, particularly those that involve private school choice.

School choice will likely take a back seat to other issues in this confirmation process. As Missourians consider a Constitutional Convention in 2022, however, we may be faced with either ditching our Blaine Amendment ourselves or having it done for us.

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You may never have heard of James G. Blaine. He didn’t win. Yet, for more than a century we have been living with one of Blaine’s legacies—Blaine amendments. While he was a senator, Blaine offered an amendment to the U.S. Constitution that would prevent the federal government from funding sectarian institutions. It was widely known that the amendment stemmed from anti-Catholic sentiment. In 2000, Justices Thomas, Rehnquist, Scalia, and Kennedy stated in Mitchell v. Helms that “it was an open secret that ‘sectarian was code for ‘Catholic.’” The federal amendment failed, but similar versions would be installed later in 37 state constitutions.

Many state officials have cited their Blaine amendments as a reason that private school choice programs would be unconstitutional. These amendments have also prevented religious institutions from receiving funds for non-religious activities. For instance, the amendment was used to bar Trinty Lutheran Church in Columbia, Missouri, from participating in the state’s scrap tire program, which helps nonprofits resurface playground surfaces. Trinity Lutheran appealed this decision all the way to the United States Supreme Court and won.

There is still some debate, as my colleague Mike McShane has noted, as to what impact the Trinity ruling will have on school choice legislation. Our first indication, however, is that the court’s repudiaiton of anti-religious sentiment may bode well for private school choice programs. On June 27, the day after the Trinity Lutheran ruling, the nation’s high court vacated the Supreme Court of Colorodo’s ruling in the Douglas County, Colorado, voucher program, which had been found unconstitutional. The case has been remanded to the state supreme court in light of the Trinity Lutheran ruling.

The Institute for Justice, a group that supports school choice, has long stated that Missouri’s Blaine Amendment was relatively strong and has suggested vouchers may not be feasible in the state. It will be interesting to see if the decisions of the U.S. Supreme Court in the Trinity case will further impact Blaine amendments in Missouri and other states. We may never get rid of rancor in politics, but this may be the case that helps us say goodbye to Blaine, Blaine, Amendment Blaine, the school choice barrier from the state of Maine.

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The Court reaffirmed the position that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.” In order to justify that penalty, the state has to clear a very high bar in proving that imposing that penalty serves a compelling state interest.

Missouri did not clear that bar. As Chief Justice Roberts argues in the opinion of the court, “the Department offers nothing more than Missouri’s policy preference for skating as far as possible from religious establishment concerns.” That is not enough, the court ruled, with Chief Justice Roberts punctuating his opinion by stating, “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.”

This is an important victory for civil society and for religious institutions that feed the hungry, house the homeless, educate the young, and provide healthcare to the sick. However, this case does not settle the issue once and for all.

The Chief Justice’s opinion contains a footnote around which we can imagine the next round of lawsuits will hinge. In footnote 3, the Chief Justice writes “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

So what does this mean for school vouchers, for example? We don’t know. In concurring opinions, Justices Thomas and Gorsuch argue that this ruling should extend to cases beyond identity into how funds are used, but that appears to be left for another day. This is not the last we will hear about religious organizations participating in public programs, but it is a shot in the arm for the argument that they have a right to do so.

The post Breaking News: Trinity Lutheran Wins! appeared first on Show-Me Institute.

It is usually ill-advised to try to divine the ultimate outcome from oral arguments, but it was hard not to see a majority of the justices making arguments and asking questions favorable to Trinity.

Justice Kagan, in particular, seemed to articulate a position in favor of Trinity multiple times. First, she remarked:

But here’s the thing. There’s a constitutional principle. It’s as strong as any constitutional principle that there is, that when we have a program of funding—and here we’re funding playground surfaces—that everybody is entitled to—to that particular funding, whether or not they exercise a constitutional right; in other words, here, whether or not they are a religious institution doing religious things. As long as you’re using the money for playground services, you’re not disentitled from that program because you’re a religious institution doing religious things. And I would have thought that that’s a pretty strong principle in our constitutional law.

Later, she even went further, responding to the state’s attorney’s argument that reimbursing Trinity would amount to an endorsement of or entanglement with the school:

I don’t mean to say that those are not valid interests. But it does seem as though this is a clear burden—looked at that way, this is a clear burden on a constitutional right. And then your interests have to rise to an extremely high level.

She continued,

It’s a burden on a constitutional right, in other words, because people of a certain religious status are being prevented from competing in the same way everybody else is for a neutral benefit.

These statements, along with tough lines of questioning to the attorney representing the state from Justices Alito, Breyer, Gorsuch, Kennedy, and Chief Justice Roberts, showed just how difficult it might be for the state to show that reimbursing a religious preschool for scrap tires for their playground would excessively entangle it with a religion. If that is excessive entanglement, several justices pointed out, just about anything that the state would do, from providing police and fire protection to administering public health programs to students, would be illegal in Missouri.

Again, we don’t want to read too much into yesterday’s arguments, but the questions were encouraging. We will know the ultimate opinion of the court by the time it recesses at the end of June.

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James G. Blaine was the Speaker of the U.S. House of Representatives, a Senator from Maine, and the Republican party’s nominee for president in 1884. While historical accounts differ about his personal attitudes toward Catholics, there is no question that he tried to leverage anti-Catholic sentiment to make his way into the White House. He attempted to amend the U.S. Constitution to bar aid to the burgeoning Catholic school system that was cropping up around the country in response to the public schools’ emphasis on teaching Protestantism. (Many might be unaware that for a long time, students in public schools would read from the King James Bible and sing Christian hymns). 

While Blaine was unsuccessful in amending the U.S. Constitution, 38 states have so called “anti-aid” provisions in their Constitutions, including Missouri.

Lawyers for Trinity, and for numerous faith groups filing amicus briefs, argue that the application of such provisions violates the First and Fourteenth amendment rights of individuals and organizations. As lawyers for the Institute for Justice put it, “the Religion Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment, demand neutrality—not hostility—toward religion.” The State of Missouri singled out Trinity, whose application otherwise would have been approved, solely because it is a religious organization even though the “aid” does not advance its religion.

Understandably, many folks reading this might not care about a school resurfacing its playground. But it is important to note that religious organizations provide important social services to members of our community—and to poor and marginalized communities around the nation—with government support. Soldiers use the GI Bill to attend Saint Louis University, and low-income families use Medicaid dollars at Cardinal Glennon hospital. If providing used tires to Trinity Lutheran is unlawfully providing aid to a religion, wouldn’t these other examples of cooperation between government and religious organizations amount to the same thing? 

A decision in favor of Trinity would reinforce a commitment to treat religious organizations neutrally (neither privileging them nor discriminating against them) and would help close the door on a sad time in American history.

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This case is part of a broader effort around the country to eliminate Blaine Amendments, provisions placed into state constitutions (including Missouri’s) barring public aid to religious schools. Blaine Amendments are named after James G. Blaine, a U.S. Senator from Maine who in 1875 tried to amend the U.S. Constitution to stamp out public dollars flowing to “sectarian” schools.  At the time, there was a virulent strain of anti-Catholicism in America, and because “public” schools were actually nominally Protestant (they required students to read the King James Bible and sing Christian hymns) “sectarian” meant Catholic, and many wanted them stamped out.

Efforts by Catholics to make public schools more inclusive were met with resistance, most notably in events like the Philadelphia Bible Riots, which were sparked over allegations that schools in the City of Brotherly Love would allow Catholics students to read their own version of the Bible. In response, Catholics began to create their own schools, where they could impart their values on their children.  This, not surprisingly, angered the anti-Catholic bigots who did everything they could to shut these schools down.

Blaine was unsuccessful in his attempt to amend the U.S. Constitution, but was successful in getting states all around the country to put language in theirs. We live with the legacy of this bigotry today, as students look to states for support to attend private schools, many of which are religious.

Interestingly, a case out of Missouri has wound its way to the Supreme Court challenging these provisions (I wrote about it here a couple of months ago), but it is not clear how broad or narrow a decision in that case might be. It could strike down (or uphold) Blaine Amendments in total, or it could rule simply on certain practical applications that might not apply to private schools. It is possible that this Douglas County case could similarly make its way to the Supreme Court, so school choice advocates may have more than one bite at the Blaine Amendment apple.

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Here are the details: Several years ago, Trinity Lutheran applied to the State of Missouri for a grant to resurface their playground. They were denied that grant because they were a church, and Missouri’s Constitution explicitly bans public support of religious educational institutions. The church is arguing that by discriminating against religious organizations in awarding grants, the state is violating those organizations’ right to free exercise of their religion.

Historically, the U.S. Supreme Court has held that states can give funds to religious educational organizations without violating the Establishment Clause of the U.S. Constitution—supporting organizations that are doing something to help society isn’t establishing a state religion. In general, these programs were simply required to be neutral toward religion; that is, that any religious denomination or non-religious organizations would be just as likely to get support as any particular religious group would be.

Several state constitutions, Missouri’s included, went a step farther.  Missouri’s constitution includes the following language:

“Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation shall ever make an appropriation or pay any public fund to help to support or sustain any private or public school, academy, seminary, college, university or other institution of learning controlled by any religious creed, church or sectarian denomination.”

This is called a “Blaine Amendment,” named after James G. Blaine, who in 1875, while he was in the US House of Representatives, proposed an amendment to the US Constitution that said: 

“That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion”

Blaine failed, but that language did end up in numerous state constitutions, like Missouri’s. The court now has to decide if it is constitutional. This particular case matters because Blaine Amendments have been a huge impediment to private school choice programs, and bringing down Blaines would be a huge win for children and families desperate for more schooling options.  

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