Locke v. Davey - Education Law
In Locke v. Davey (2004), the U.S. Supreme Court upheld the constitutionality of “no-funding provisions” in Washington State’s constitution, as applied to a student who attended a religiously affiliated institution of higher learning. Such no-funding provisions are often referred to as “Blaine Amendments,” after Senator James K. Blaine of Maine, who unsuccessfully introduced a constitutional amendment to limit governmental aid to “sectarian” or religious schools in 1876. In Davey, however, the Court specifically asserted that the constitutional provision underlying the dispute was not a Blaine Amendment, but rejected the claim that state officials violated the student’s First Amendment rights in denying him a scholarship because he wished to study devotional theology.
Facts of the Case
The state of Washington created a scholarship program for low- and middle-income students who had excellent academic credentials. The Promise Scholarship Program provided funds for education-related expenses, including room and board, for eligible students. However, state officials refused to award the scholarship to students who were studying for degrees in theology. Davey, who was pursuing a degree in devotional theology as part of a joint major, challenged the prohibition of the scholarship for theology majors on the basis that it singled out religion for unfavorable treatment in violation of the First Amendment.
A federal trial court in Washington rejected the student’s claim, but the Ninth Circuit reversed in his favor. In so doing, the court cited McDaniel v. Paty (1978) for the proposition that the scholarship policy lacked neutrality. In McDaniel, the Supreme Court struck down a state constitutional provision from Tennessee that barred ministers or priests from seeking public office. As a result, the Ninth Circuit concluded that the Promise Scholarship Program impermissibly singled out religion for unfavorable treatment.
The Court’s Ruling
Reversing in favor of the state, the Supreme Court, in a 7-to-1 opinion authored by Chief Justice Rehnquist, rejected Davey’s argument. Instead, the Court held that the state’s refusal to grant Davey an award as part of the Promise Scholarship Program did not violate the Establishment, Free Exercise, or Free Speech Clauses of the First Amendment. In reviewing the facts, the Court pointed out that the Promise Scholarship could have been used at any accredited public or private institution of higher education in Washington. However, the Court also pointed out that in an attempt to avoid a conflict with its own constitutional constraints, the state legislature stipulated that student recipients may not be pursuing degrees in theology while receiving the scholarship.
At the heart of its analysis, the Supreme Court declared that nothing in the history or the text of the Washington State Constitution suggested animus toward religion. The Court was of the opinion that since there is “play in the joints” between the Establishment and Free Exercise Clauses, the Establishment Clause permits some state actions that are not required by the Free Exercise Clause. In addition, the Court determined that the nontheology degree provision in the Promise Scholarship Program was an example of just such an instance. The court maintained that unlike McDaniel, the scholarship program was constitutionally permissible because it did not require students to choose between governmental service and their religious beliefs.
On the other hand, Justice Scalia’s dissent, which Justice Thomas joined, thought that the program should have been vitiated as unconstitutional because it discriminated against religion. In a two-paragraph dissent, Justice Thomas added that he objected to the program’s having been applied only to students who wished to study theology.
The upshot of Davey is that since it was set in the context of higher education, it is likely to be of limited applicability in elementary and secondary schools, should it be used to challenge choice programs. Of course, the outcome of such challenges may well depend on the wording of state statues and constitutions. At the same time, in states such as Washington with Blaine-type provisions, it remains to be seen whether Davey will impact the bounds of permissible aid for students who wish to seek similar scholarships while attending religiously affiliated institutions of higher learning.
See also First Amendment; State Aid and the Establishment Clause
- Goldenziel, J. (2005). Blaine’s name in vain? State constitutions, school choice, and charitable choice. Denver University Law Review, 83, 57–99.
- Locke v. Davey, 540 U.S. 712 (2004).
- McDaniel v. Paty, 435 U.S. 618 (1978).