Religious schools see champion in Kavanaugh
Legal case involving use of public support for religion-affiliated entities has come up in N.M.
WASHINGTON — Judge Brett Kavanaugh, in a speech last year, gave a strong hint at his views on taxpayer support for religious schools when he praised his “first judicial hero,” Justice William Rehnquist, for determining that the strict wall between church and state “was wrong as a matter of law and history.”
Rehnquist’s legacy on religious issues was most profound in “ensuring that religious schools and religious institutions could participate as equals in society and in state benefits programs,” Kavanaugh, President Donald Trump’s nominee to succeed Justice Anthony Kennedy on the Supreme Court, declared at the American Enterprise Institute, a conservative research organization.
Words like that from a Supreme Court nominee are breathing new life into the debate over public funding for sectarian education. Educators see him as crucial to answering a question left by Kennedy after the Supreme Court ruled it unconstitutional for the state of Missouri to exclude a church-based preschool from competing for public funding to upgrade its playground: Can a church school playground pave the way for taxpayer funding to flow to private and parochial schools for almost any purpose?
Over his decadeslong legal career, Kavanaugh has argued in favor of breaking down barriers between church and state. He has filed friend-of-the-court briefs in support of school prayer and the right of religious groups to gain access to public school facilities. He was part of the legal team that represented former Gov. Jeb Bush of Florida in 2000 when he defended a school voucher program that was later ruled unconstitutional. The program had used public funds to help pay the tuition of students leaving some of the state’s lowest-performing schools for private or religious schools.
School voucher champions see Kavanaugh as a critical vote in overturning long-standing constitutional prohibitions, often called Blaine Amendments, that outlaw government funding of religious institutions in more than three dozen states. The amendments have been used to challenge programs that allow taxpayer funding to follow children to private and parochial schools, and are seen as the last line of defense against widespread acceptance of school voucher programs.
Last June, private and parochial school advocates expressed cautious optimism that the Supreme Court decision on allowing public funding to resurface a churchschool playground, Trinity Lutheran Church v. Comer, would begin to weaken the prohibitions against using taxpayer funds to cover tuition at parochial schools.
With Kennedy joining the majority opinion, the justices included a footnote to the Trinity case clarifying, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
Kavanaugh’s nomination has rallied both sides of the voucher debate.
Scott Sargrad, the managing director of primary and secondary education policy at the liberal Center for American Progress, wrote that while Education Secretary Betsy DeVos’ school voucher agenda has not gained traction, “if confirmed, Kavanaugh may be the solution to her problems.”
DeVos has stalled in her efforts to create a $1 billion school voucher program, but after the Trinity decision, she has moved to loosen regulations that exclude religious colleges from participating in federal aid programs.
There are no voucher cases pending before the Supreme Court, but relevant cases are moving through lower courts: a case in New Mexico, which the Supreme Court kicked back for reconsideration after Trinity, involves the exclusion of religious and private schools from a state textbook-lending program.