Professor Michael Helfand Files Amicus Brief in Supreme Court Case Hall v. Fleming and Johnson v. Fleming

Professor Michael A. Helfand has filed an amicus brief in the Supreme Court case Hall v. Fleming and Johnson v. Fleming in support of petitioners Bethany Hall and Cameron Johnson. The amicus brief asks the Court to hear challenges to Virginia higher-education funding restrictions and to reconsider Locke v. Davey (U.S. 2004). Professor Helfand served as counsel for amici curiae along with faculty members from Notre Dame Law School. 

Summary of Argument:

This Court should grant certiorari to put an end to the damaging effects of Locke v. Davey, 540 U.S. 712 (2004). To begin, as Judge Richardson ably demonstrated in his concurring opinion below, “Locke was wrongly decided.” Hall Pet. App. 14a-18a.³ What’s more, Locke sits in tension with—and imposes a significant impediment to—this Court’s many recent decisions that aim to end unconstitutional religious discrimination in public funding programs. Indeed, despite this Court’s efforts to limit Locke, it continues to entrench an array of religious discrimination, providing government actors with a permission structure to justify religious discrimination in educational funding programs that cannot otherwise survive First Amendment scrutiny.

This Court has repeatedly held that the First Amendment prohibits the government from barring religious institutions, and the individuals that they serve and educate, from public funding solely because they are religious or engage in religious activity or instruction. From private school funding to playground resurfacing, the Court has underscored a simple rule for excluding religious institutions from funding: don’t do it. In this Court’s words, “[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 487 (2020).

Locke sits uneasily with these recent decisions. And, in these decisions, this Court has consistently aimed to ease the tension by narrowly characterizing Locke as permitting the government to decline to support religious education in one exceedingly specific context: when the excluded students are pursuing “‘vocational religious’ degree[s]” to “prepare for the ministry.” Carson v. Makin, 596 U.S. 767, 788 (2022) (quoting Locke, 540 U.S. at 725); Espinoza, 591 U.S. at 479 (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 464 (2017)). Even that narrow view raises difficult interpretive questions that threaten to allow unconstitutional discrimination to go unchecked. Indeed, in the view of the courts below, even the Court’s narrow understanding of Locke allows students like Bethany Hall and Cameron Johnson to miss out on the tens of thousands of dollars of funding that their peers receive, solely based on their calling to pursue religious ministry as a vocation.

The Court’s effort to cabin Locke to its facts has failed even more dramatically on the ground. Rather than staying within its narrow confines, Locke sows confusion and casts a long shadow in public programs supporting higher education. Across the country, dozens of state and federal laws and regulations reflect a capacious reading of Locke that sanctions unconstitutional religious discrimination in public benefit programs, particularly those that fund students pursuing higher education. Indeed, dozens of laws deny higher education funding that cannot possibly be justified by Locke, including: prohibitions on studying at certain kinds of schools, prohibitions on studying religion or religious instruction in general, and a variety of prohibitions affecting auxiliary student grants.

These laws flout this Court’s recent fundingdiscrimination cases, and they cannot be justified on any fair reading of the First Amendment. Unfortunately, confusion over this basic point continues to persist. Abandoning the failed project of Locke is the best, perhaps only, way to eliminate this confusion and ensure the equal treatment of all students, even those pursuing religiously related courses of study

The complete amicus brief may be found at Hall v. Fleming and Johnson v. Fleming