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What Justice Kavanaugh Could Mean for the Future of School Choice

When the news of Supreme Court Associate Justice Anthony Kennedy’s retirement broke in June, conservatives immediately began their preparations to fight for the nomination of a judge who would push for conservative ideas and an originalist interpretation of the Constitution. With the nomination of Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals by President Donald Trump, conservatives can now rally around Kavanaugh’s mostly consistent legal opinions and originalist track record.

If confirmed, Judge Kavanaugh will be the deciding vote on many hot-button policy issues, one of which is K-12 education.

In recent years, more and more cases pertaining to school choice have come before the Supreme Court. However, these cases have addressed questions that supersede education policy, specifically the role of the Establishment Clause and the Free Exercise Clause within school choice.

These two First Amendment clauses form the backbone of a fundamental right: freedom of religion. The Constitution uses the Establishment Clause and the Free Exercise Clause to severely limit the federal government’s involvement in religion.

The Establishment Clause prohibits the government from, at the most basic level, involvement in religion. The debate remains how much governmental involvement in religion is permitted before a violation of the Establishment Clause occurs. The Free Exercise Clause extends protection for religious individuals from interference by the government. The government cannot prohibit the “exercise of religion”—which includes both action and internal beliefs.

But how do these two important clauses affect school choice? Does the Establishment Clause imply that the government cannot use public funding for private (and often religious) schools? And does the Free Exercise Clause protect religious schools from government discrimination?

These are questions that, if answered in a way that rejects the principles of originalism, could undermine religious liberty and the First Amendment writ large. Justice Kennedy was often a swing vote on the Supreme Court, so his replacement’s approach to First Amendment religious accommodation/expression could determine the fate of school choice in America.

Because education policy is typically set at the state level, school choice opponents have a legislative tool on which to anchor their opposition to funding charter schools and issuing school vouchers. In a number of states, so-called Blaine Amendments effectively block the kind of school reform many parents are routinely seeking—so much so that they trigger major constitutional questions

The Institute for Justice defines Blaine Amendments as “any provision that specifically prohibits state legislatures (and often other governmental entities) from appropriating funds to religious sects or institutions, including religious schools.” The original Blaine Amendment was proposed in 1875 by James Blaine as a formal change to the U.S. Constitution. It was rooted in anti-Catholic bias and designed to block public funding for Catholic schools.  While the amendment failed to be ratified, similar provisions were later adopted by 37 states.

Now, these 37 states are using Blaine Amendments to counter school choice through claims that funding for religious schools violates the Establishment Clause—even though the federal Constitution does not specify a strict wall of separation between church and state. Thus, while trying to defend the Establishment Clause, states could be violating the Free Exercise Clause by withholding funds from religious institutions and effectively discriminating against them.

This is exactly what happened in Trinity Lutheran v. Comer. In this case, the state of Missouri attempted to use its Blaine Amendment to prohibit a church-run preschool from using state funds to resurface its playground, arguing that using public funding for something that benefitted a church-run school would constitute support of religion and accordingly run afoul of the Establishment Clause.

In a 7-2 decision, the Supreme Court allowed Trinity Lutheran Church to use state funds for its playground and the decision was lauded as a victory for religious freedom. The decision, however, was far from simple. Ultimately, the Court’s narrow ruling did not address many of the intricacies of the religious-freedom debate, including the constitutionality of Blaine Amendments. In the opinion of the Court, Chief Justice Roberts wrote, “This case involved express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination” (emphasis added).

With these words, Justice Roberts implied that conservatives still face a fight on Blaine Amendments, despite the positive outcome in Trinity Lutheran. A Justice like Judge Kavanaugh, who uses an originalist approach to many constitutional questions, would be more likely to support religious expression. While the Supreme Court rarely reviews cases that deal with state constitutional rights, it will address a case if it appears that a state constitution has violated rights explicitly protected by the U.S. Constitution. Blaine Amendments could be struck down by a court that views religious freedom as worthy of protection.

Would Judge Kavanaugh champion an originalist’s interpretation of the Constitution? More specifically, how would he interpret the Establishment Clause and the Free Exercise Clause in cases concerning education, school choice, and religion?

Judge Kavanaugh offers a hint at the answer to these questions in his first major dissent on the D.C. Circuit Court of Appeals. In Free Enterprise Fund v. PCAOB, he dissented, “It is always important in a case of this sort to begin with the constitutional text and the original understanding, which are essential to proper interpretation of our enduring Constitution.”

Judge Kavanaugh’s record, along with these words emphasizing the importance of the Constitution, suggests that he would prove to be a staunch defender of religious liberties in cases dealing with school choice. Judge Kavanaugh represented former Governor Jeb Bush when he sought to establish a school-voucher program in Florida that would have allowed funding for private schools, including religious institutions. Kavanaugh also ruled in favor of religious interests during his time on the bench of the D.C. Circuit Court of Appeals, and he defended religious liberty while in private practice.

While there are currently no cases on the Supreme Court’s docket for next year that concern school choice or religious freedom, this is certainly an issue likely to come before the Court in the future, and the new appointee will play an integral role in deciding the future of school choice and religious freedom.

In fact, a case argued before the Montana Supreme Court in April could be what leads the Court to confront this question again. In 2015, Montana established a school choice program that offered tax deductions to individuals or organizations that donate to private, non-profit scholarship programs who in turn grant scholarships to low-income parents so they can send their children to a school of their choosing.

However, according to Montana’s Department of Revenue, parents are not permitted to use these scholarships to send their children to a religious private school. This has been challenged as an infringement of the Free Exercise Clause. This case could make it all the way to the United States Supreme Court if the Montana Supreme Court upholds the rule of Montana’s Department of Revenue.

If confirmed, Judge Kavanaugh could be the justice who overturns Blaine Amendments once and for all, which would be a decisive victory for religious freedom. Even more significantly, he could be a deciding voice in the discussion concerning the interpretation of the Establishment Clause and the Free Exercise Clause in regard to public funding for private, religious institutions.