This week is a big week in the world of education law. Today, the U.S. Supreme Court will take up its first case related to state constitutional Blaine clauses. We talked about these ugly little pieces of constitutional language in some detail last week when I highlighted the Independence Institute’s new paper, Blaine’s Shadow: Politics, Discrimination, and School Choice. Check out that paper if you need some historical background on Blaine clauses and what they mean for education today.

Before you ask, the court isn’t considering the Dougco voucher case tomorrow. We’re still waiting to find out whether SCOTUS will hear that one. Instead, the high court will hear oral arguments in Trinity Lutheran v. Pauley, which deals with a Blaine-related case out of Missouri. We’ve talked about that case in passing over the year or so since I wrote about it in detail, but a refresher is probably in order. From my previous post:

Here’s the skinny: Missouri runs a program under which organizations can apply to the state for grants. That’s not unusual. But here’s the trick: these “grants” do not come in the form of money. They come in the form of scrap rubber. That rubber is used by organizations to replace hard playground surfaces with soft, bouncy pads—a significant improvement over the concrete my dad used to play on. If you’ve met my dad, you know what kind of impact (heh) repeatedly hitting one’s head against concrete playground surfaces can have.

Trinity Lutheran Church runs a preschool in Missouri. That preschool has a playground, and that playground is surfaced with gravel. Gravel is admittedly better to fall on than concrete, but it’s still not great. It is, after all, made of rocks. With this safety concern in mind, the church’s preschool applied to the Missouri Department of Natural Resources for scrap rubber that it could use to resurface the playground.

The department’s response? “No can do. You’re religious.” It then fervently pointed to the state’s Blaine Amendment and walked away.

The problem here is a nuanced one. The Playground Scrap Tire Surface Material Grant Program is supposed to operate on the basis of neutrality. But Trinity Lutheran asserts that the department actively discriminated against its preschool simply because it is a religious organization, thereby violating its First Amendment rights.

Trinity Lutheran provides an opportunity for SCOTUS to consider whether this kind of application of state constitutional Blaine clauses violates the government’s First Amendment responsibility to maintain neutrality with respect to different religions. The big-ticket ruling, the one everyone is watching for, will deal with this question. We won’t get that ruling tomorrow, though; in fact, we likely won’t have a ruling until the current session ends this summer. That said, the justices’ comments and questions during oral arguments can be an important indication of where they stand on an issue, so today could be still very informative.

Then again, it’s possible that the justices will spend much of their time arguing over whether or not SCOTUS should even bother deciding the case. Missouri Governor Eric Greitens announced last week that the state was eliminating religious discrimination in the grant program at issue in Trinity Lutheran. That’s great news for Missouri, but it complicates the SCOTUS case because it potentially removes the reason for the case’s existence. Both sides of the case—Missouri and Trinity Lutheran—have argued that the case should go forward, but the usual suspects disagree. How exactly all that plays out remains to be seen. Should the court choose not to decide Trinity Lutheran after all, Dougco becomes our last hope of tackling Blaine clauses head on.

Should the court agree to decide the case and issue a broad favorable ruling, the immediate effect likely would not be to completely excise Blaine clauses from state constitutions. Instead, the ruling would restrict states’ application of Blaine clauses in similar situations. Obviously, such a ruling could have important ramifications for school choice in the United States.

The most likely result of a broad favorable ruling from a Colorado perspective would be a “GVR,” or grant, vacate, and remand decision. Essentially, the court would accept the Douglas County voucher case, vacate the underlying Colorado Supreme Court decision, and remand it to the state supreme court for further consideration under the newly set precedent. If that were to happen, the legal fight over Douglas County would shift from the national stage back to the state stage.

However, a broad favorable ruling is only one of a number of different possibilities in Trinity Lutheran. With Justice Gorsuch now on the court, it seems tentatively likely that Trinity Lutheran will prevail if the case moves forward—particularly given the fact that the court has deliberately stalled hearing it until Justice Scalia’s seat was filled, presumably because they were trying to avoid a 4-4 split. But it is well within the realm of possibilities that even a favorable ruling could be too narrow or nuanced to affect the wider conversation over Blaine clauses.

The legal questions at the heart of Trinity Lutheran are different than those in the Dougco case in a couple of important ways. First, Trinity Lutheran case deals with direct government “aid” to a religiously affiliated institution. There is no parent in the middle receiving the aid and making choices about how to direct it—an important facet of previous precedent on school choice-related issues. And second, the nature of “aid” is also up for debate in this particular instance. As a joint amicus brief filed in the case by the attorneys general of 10 states (including Colorado) put it:

[The 8^th Circuit Court] split over whether…the Free Exercise Clause lets Missouri deny a church access to a generally available, neutral program that, even if the church participated, would have nothing to do with religion. Unlike refusing to fund clergy, refusing to protect children equally from injury because they play at a church has neither the sanction of history nor Mr. [James] Madison…

…Trinity Lutheran Church did not ask for new pews. It asked for ground-up tires to protect kids playing from injury. And in this respect it is similarly situated to every other preschool-daycare. The Missouri tire-recycling program, which aims at once to reduce landfills and injury to children, cannot serve any religious purpose…When the benefits sought have no tie to religion, withholding those benefits from churches alone seems arbitrary and unfair.

The questions raised here are very interesting. To what extent does literal garbage constitute “aid” to a sectarian institution? More importantly, does the state constitutional calculus change when more fungible monetary resources are involved? Are those concerns adequately mitigated when a parent stands in the middle to direct them?  Any answers provided to these questions by the court will have big impacts on the legal landscape in education—and they may be the deciding factor in whether SCOTUS also agrees to take the Douglas County case.

A final note: SCOTUS does not live stream its oral arguments. An official recording of the arguments will be posted on this page of the SCOTUS website this Friday, and a full, official transcript should be posted on this page by the end of the day today. In the meantime, we’ll have to rely on reports from those who are physically in the courtroom.

Hold on to your hats, friends. It’s going to be an interesting week.