A decision issued by the US Supreme Court today makes it easier for religious schools to participate in state-financed programs, even when the public funds might directly benefit the mission of the church that operates the school. The Court held that the state of Missouri could not deny public funds to a church simply because it is a religious organization.
The Supreme Court’s Decision
In Trinity Lutheran Church of Columbia, Mo. v. Comer (No. 15-577) the state of Missouri operated a competitive grant program which provides money to install playground surfaces made with recycled tires. The church applied for a grant to resurface its preschool playground. The state of Missouri denied the application because it was made by a church. Missouri has a state constitutional provision that bars direct or indirect government financial aid to churches.
Trinity Lutheran sued the state claiming that the denial of the grant constituted religious discrimination under the First Amendment. The lower courts ruled in favor of the state, agreeing that it would be an impermissible establishment of religion if the state made a direct payment to a religious institution.
The US Supreme Court reversed and ruled in favor of the church. “There is no question that Trinity Lutheran was denied a grant simply because of what it is,” wrote Chief Justice John Roberts in his decision for the majority. “A church.” The Court held that it is unconstitutional to put churches “to the choice between being a church and receiving a government benefit.” As the majority described it: “The rule is simple: No churches need apply.” The Court held that this rule constituted an unconstitutional burden on the free exercise of religion in violation of the First Amendment.
Application to Nebraska
Nebraska has its own version of the constitutional provision Missouri used to deny money to Trinity Lutheran. In 1875, Congressman James G. Blaine proposed an amendment to the U.S. Constitution. The "Blaine Amendment" sought to amend the Constitution to prohibit state governments from, among other things, funding religious schools with public money. Although the amendment eventually failed, many states, including Nebraska, added provisions to their state constitutions that accomplish what Congressman Blaine could not.
Nebraska’s Blaine amendment provides:
1. Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; Provided, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature.
2. All public schools shall be free of sectarian instruction.
3. The state shall not accept money or property to be used for sectarian purposes; Provided, that the Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the state, any political subdivision, or any public corporation may be added thereto.
4. A religious test or qualification shall not be required of any teacher or student for admission or continuance in any school or institution supported in whole or in part by public funds or taxation.
Nebraska Const. Art. VII, § 11.1
In two cases, the Nebraska Supreme Court has interpreted our state’s Blaine Amendment to allow much more state involvement with private schools than Missouri had allowed. In Father Flanagan’s Boys Home v. Department of Social Services, 583 N.W.2d 774 (Neb. 1998), the state of Nebraska argued that the Amendment prevented it from paying Boys Town for special education services. The court held that payments under a contract for educational services were not the type of appropriations prohibited by Nebraska’s Blaine Amendment. Similarly, in Bouc v. School District, 320 N.W.2d 472 (Neb. 1982), the court held that private school students could ride the public school bus. The court reasoned that the benefit accruing to a private school was incidental and therefore not a violation of Nebraska’s Blaine Amendment.
Relevance of Trinity for School Choice
Many national commentators are predicting that this case will have significant implications in the political battle over school choice. The Supreme Court ruled in 2002 that the federal Constitution's Establishment Clause did not prohibit the inclusion of religious schools in a government voucher program when parents are making the decision where to direct the state aid. However, some states have used their Blaine Amendments arguing against the inclusion of religious schools in voucher programs and some other forms of state aid. This Trinity Lutheran case decided today is the first time the Supreme Court has ruled that governments must provide money directly to a house of worship.
The Supreme Court is considering two other school cases which involve state Blaine Amendments. One involves a decision by the New Mexico Supreme Court prohibiting religious schools from participating in a textbook-lending program. The other is a case from Colorado in which a public school district attempted to create a tuition-scholarship program for students to attend private schools, including religious schools. The Colorado Supreme Court has blocked the program based on a Blaine-like "no aid" provision in the state constitution.
We will continue to monitor these issues as they develop, both in the courts and through possible state or federal legislation. In the meantime, if you have any questions about your interactions with private schools or what these cases may mean for your school, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.