How a Playground Dispute in the Supreme Court Could Weaken Public Schools

This morning the Supreme Court will hear a case about playground surfaces that could pave the way for public funding of religious schools. Trinity Lutheran Church of Columbia, Inc. v. Comer asks whether Missouri’s Department of Natural Resources must allow religious entities to participate in a state program providing grants for resurfacing playgrounds with tire scraps. The State denied Trinity Lutheran’s grant application, citing a provision in the Missouri Constitution providing that public funds cannot be used “in aid of any church, section or denomination of religion.”

Thirty-eight states have similar provisions in their state constitutions. In many of these states, “no-aid” provisions have been interpreted to provide for a more robust separation of church and state than what is mandated by the federal Establishment Clause. And the Supreme Court has respected this independent interpretation by state courts of state constitutional provisions, finding in Locke v. Davy, 540 U.S. 712 (2004), that there is “play in the joints” between the federal religion clauses, such that states may adopt stronger prohibitions against governmental aid to religious entities without trampling on federal Free Exercise rights.

Trinity Lutheran aims to overthrow this longstanding rule. The church claims that Missouri’s decision to bar it from participating in the tire scrap grant program was “hostile to religion” and amounted to “religious status discrimination” that ought to be barred by the federal Free Exercise Clause and the Equal Protection Clause. But the history here is to the contrary. Missouri’s no-aid provision, like those of other states, was not grounded in any hostility towards religion, but instead represents an attempt to avoid the corrosive effects of public funding of religion. As several amici in the case have observed, no-aid clauses were in large part motivated by a desire to ensure the public appeal and financial stability of the nation’s nascent public school system. The framers of no-aid clauses also wanted to avoid the public discord that results where the government forces individuals of one religion to support another religion, or is perceived to favor one religion over another. And, they feared the impact of government funding on the independence of religious institutions. The Court should continue to recognize that these concerns outweigh the interest of religious institutions in obtaining public funding.

A ruling in the church’s favor would have serious implications for a range of government aid programs. In particular, depending on the scope of the ruling, the Court could eliminate critical state constitutional safeguards against diverting taxpayer money to private and religious schools. For example, in 2015 the Colorado Supreme Court relied on the Colorado Constitution’s no-aid clause to strike down a voucher program, created by a suburban Denver school district, which used a shell charter school to transfer funds to private schools. The State, the school district, and voucher recipients separately petitioned the Supreme Court to review the case, making arguments similar to those advanced by the petitioners in Trinity Lutheran. Those petitions are currently being held by the Court, and would likely be sent back to the Colorado high court for reconsideration if the church prevails in Trinity Lutheran.

The school voucher connection is especially relevant given the Trump Administration’s stated goal—ardently embraced by Education Secretary Betsy DeVos—of using all available means to push school vouchers nationwide. A decision in the church’s favor in Trinity Lutheran could pave the way for federal voucher initiatives advanced by the Administration. Such programs only weaken our public schools by depriving public schools of the resources needed to ensure that every child in every community has the opportunity for a great education at a neighborhood public school, while often benefitting wealthier families who would send their children to private school with or without vouchers. Furthermore, vouchers by no means guarantee admission; schools that participate in existing state voucher programs typically are not required to serve all students, and may discriminate against applicants based on disability status, religion, sexual orientation, or academic ability.

There were two last minute twists in this litigation. First, Justice Neil Gorsuch was confirmed to the Court last week. Many believe he may be the fifth vote the church needed to win this case. Then last Thursday Missouri’s new governor reversed the state’s policy of denying the scrap tire grants to religious organizations. Not surprisingly, the Court on Friday directed the litigants to submit their views on whether the case is affected by the governor’s decree, and yesterday both sides urged the Court to go forward with the case on the theory that the state could opt to reverse course again in the future. The Court may very well disregard these pleas and dismiss Trinity Lutheran. But even if it does so, the same issues will continue to be litigated in other cases—including the Colorado case discussed above—and could conceivably be taken up by the Court as early as next term.