Worth A Look: Locke v. Davey (2004) - from "It Followed Her To School One Day..."

The following is a first draft of one of the mini-chapters from an upcoming book covering the major "wall of separation" cases related to public education over the past century. The working title is "Have To" History: It Followed Her To School One Day...

We'll see how it actually turns out.

Worth A Look: Locke v. Davey (2004)

The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension… Yet we have long said that “there is room for play in the joints” between them (Walz v. Tax Comm'n of City of New York, 1970). In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.

This case involves that “play in the joints” described above… {T}here is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology… The question before us, however, is whether Washington, pursuant to its own constitution…, can deny them such funding without violating the Free Exercise Clause…

Far from evincing {a} hostility toward religion…, the Promise Scholarship Program goes a long way toward including religion in its benefits. The program permits students to attend pervasively religious schools, so long as they are accredited. As Northwest advertises, its “concept of education is distinctly Christian in the evangelical sense.” It prepares all of its students, “through instruction, through modeling, {and} through {its} classes, to use… the Bible as their guide, as the truth,” no matter their chosen profession. And under the Promise Scholarship Program’s current guidelines, students are still eligible to take devotional theology courses. Davey notes all students at Northwest are required to take at least four devotional courses… and some students may have additional religious requirements as part of their majors…

The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here.

(from the Court’s Majority Opinion, by Chief Justice William Rehnquist)

The state of Washington, like many states, offered a variety of scholarships to promising young people heading to college. Joshua Davey was awarded one of these scholarships and chose to attend an Assembly of God-affiliated school. That was fine, until he indicated he’d be studying theology with his eye on a career in ministry. About three-quarters of state constitutions – including Washington’s – contain provisions banning the use of public money to support “sectarian” institutions or pursuits. These are known informally and collectively as the “Blaine Amendment,” and they’re kind of a big controversial historical political jurisprudential deal.

Fence of Separation

Nearly two decades before, in Witters v. Washington Department of Services for the Blind (1986), the Court had determined that using public funds to support religious education or career training did not violate the Establishment Clause as long as these religious outcomes were a result of parent and student choice, not government decision-making. The Court specifically clarified in Witters that while states were free to use their funds this way without violating the Establishment Clause, they were not required to support religious training – particularly if their state constitutions prohibited such things. Davey and his supporters hoped maybe the Court was ready to overturn that last bit.

It wasn’t.

The majority drew a distinction between the nature of the institution at which the scholarship would be used and the training or goals towards which it would be applied. Northwest College was certainly a religious school. Part of their appeal was that every course, whatever the topic, would be marinated in Christian doctrine and ideology. Many degrees required at least a few theological classes to be completed successfully. The state was fine with all of that – here’s your scholarship, go learn about math and Jesus, business and Jesus, computer science and Jesus. But ministry as a profession had specific significance in the history behind the First Amendment and Washington’s “Blaine Amendment,” and the state had the right to make this one exception to their program. It fell into the realm of what a previous Court had called “room for play in the joints” when balancing “establishment” and “free exercise.”  

Less than two decades later, in Espinoza v. Montana Dept. of Revenue (2020), the Court would again distinguish between the nature of an institution and the purpose of a program when state funds were being applied. The Espinoza Court invalidated the efforts of some Montana officials to restrict the use of education “vouchers” to secular private schools. Because the funds were appropriated as part of a general effort to improve education (a valid state function) and arrived at religious institutions only as the result of parent choice, the program did not violate the Establishment Clause. That part was not new. On the other hand, the Court explicitly declared that excluding private schools from the program based on their religious orientation was a violation of the Free Exercise Clause. That part was.

While at first glance this might seem to have overturned Locke v. Davey, the Court once again distinguished between the nature of the institution and the purpose or goal of the public funds applied there. Any religious school meeting the qualifications and agreeing to the expectations of the state regarding secondary education was – in the Court’s view – fulfilling a valid secular function while maintaining its religious beliefs, not using state dollars to inculcate religion in young people in place of the values otherwise held by a free, democratic society.

The distinction nevertheless remains problematic. The ideological goals of many belief systems are at times largely incompatible with those of a diverse, democratic society. A sectarian school which does a better job of teaching Algebra or promoting college readiness is laudable all ‘round. If that same school produced graduates whose values and worldviews were very much like those of their secular counterparts, however, it would be considered by many to have failed in its primary mission. That’s an uncomfortable discussion too often circumvented in the larger “school choice” debate, but one worth having – especially for those still fighting the use of government funds to support sectarian indoctrination, however indirectly.

RELATED POST: "Have To" History Preview: Good News Club v. Milford Central School (2001)

RELATED POST: Property Rights vs. The Communal Good - Two Early Supreme Court Cases

RELATED POST: "Have To" History: Landmark Supreme Court Cases (Promo & Supplementals)

Add new comment