From the WSJ Opinion Archives
OUTSIDE THE BOX
Blaine Is Slain
School choice passes a second constitutional test.
Joshua Davey finished in the top 10% of his high school graduating class, and his family's income was less than 135% of Washington state's median family income, so he met the eligibility requirements for a state Promise Scholarship to help him attend college. But when Joshua declared his major to be in pastoral ministries, the state withdrew his scholarship.
A Washington statute prohibits the awarding of aid to any "student who is pursuing a degree in theology," and the state constitution says that public money shall not be "applied to any religious worship, exercise or instruction."
But on July 18 the Ninth U.S. Circuit Court of Appeals held that the Evergreen State's policy denying the use of state education scholarships to individuals studying to be pastors was unconstitutional: "A state law may not offer a benefit to all . . . but exclude some on the basis of religion."
Davey v. Locke is an important school-choice decision for two reasons. First, because the Promise Scholarship program is a perfect example of the kind of broad based, nondiscriminatory program that is at the core of the school choice constitutionality debate.
And second, it follows by just three weeks and uses the same reasoning as the U.S. Supreme Court's decision that school vouchers were constitutional even if used at religious schools, because parents, not the government, chose the schools for their children. Where "a broad class of citizens . . . [make their own] genuine and independent private choice," the Supreme Court held in Zelman v. Simmons-Harris, "the program does not offend the Establishment Clause" of the First Amendment.
The school choice tide has turned in favor of parents and students.
Under the First Amendment, a state may neither favor nor disfavor religion. Therefore the Ninth Circuit held in Davey that "the government may limit the scope of a program it will fund, but once it opens a neutral 'forum' . . . the benefits may not be denied on account of religion," exactly what Washington was doing with its statute. "Once the state of Washington decided to provide Promise Scholarships to all students who meet objective criteria," the court ruled, "it had to make the financial benefit available on a viewpoint neutral basis." Further, "the Promise Scholarship is a secular program that rewards superior achievement by high school students . . . It is awarded to students; no state money goes directly to any sectarian school" (my emphasis). Since the funds may be used "for any education-related expense, including food and housing," the court concluded that its "application to religious instruction is remote at best."
School choice supporters have been making exactly this argument for decades: Once a state makes a benefit available to individuals, it cannot exclude people who decide to use it in a program associated with religion. This is the reasoning that makes the endorsement of a Social Security check to a church constitutional, or the use of the GI Bill or a Pell grant to study at college to be a minister or priest.
The court also noted that Gov. Gary Locke's congratulatory letter to Joshua Davey (a form letter that goes to all Promise Scholarship winners) said that "education is the great equalizer in our society," and "regardless of gender, race, ethnicity or income, a quality education places all of us on a more level playing field." The Ninth Circuit pointed out that "the selection criteria are high school grades, income, and staying in Washington for college; the deselection criterion is pursuing a degree in theology," which the court concluded "has nothing to do with the purpose or point of the program."
What makes the Davey case so interesting is both the strength of its conviction and that it was handed down just three weeks after the Supreme Court ruled in Zelman, the landmark Cleveland voucher case. "The powerful logic of Davey coming right after the Zelman decision suggests that every voucher program won't have to be taken all the way to the Supreme Court," says Chip Mellor of the pro-voucher Institute for Justice.
Three important legal challenges have faced school choice programs from the beginning.
One was the language of the First Amendment--an issue settled by the Supreme Court in Zelman. The second is something called "Blaine amendments," which James Blaine, the anti-Catholic Maine Republican congressman and 1884 presidential nominee ("Blaine, Blaine, the continental liar from the state of Maine"), managed to get attached to the constitutions of 36 states. These amendments stipulate that state money cannot be used for religious purposes. Washington now becomes the fourth state--after Wisconsin, Arizona and Ohio--to have its Blaine amendment set aside by the courts on the basis that, at least when it comes to school choice, it discriminates against religion.
Finally, 29 states have constitutional provisions, many dating from colonial times, to stop state collection of money for the support of churches. Education scholarships in no way do that, but opponents of school vouchers will surely grasp at this final straw in an effort to save the public school monopoly and deny better education to low-income families.
With the decisions in Zelman and Davey, the courts have done their job in clearing the field of legal stumps and underbrush. Now it is up to state legislatures to plant the seeds of better education by enacting school choice programs that will allow low-income families access to what Gov. Locke correctly pointed out was essential to a "level playing field" for all Americans. Then it will be up to choice schools to create the quality education that will give everyone the opportunity to achieve and excel.
Mr. du Pont, a former governor of Delaware, is policy chairman of the Dallas-based National Center for Policy Analysis. His column appears Wednesdays.
