Constitutional – Virginia tuition program doesn’t violate First Amendment

Where Virginia tuition grant program limits eligibility to nonprofit private institutions of higher education whose primary purpose is to provide collegiate, graduate, or professional education and not provide religious training or theological education, it does not violate the First Amendment.

Background

Bethany M. Hall, a student at Liberty University, sued A. Scott Fleming, in his official capacity as director of the State Council of Higher Education for Virginia under 42 U.S.C. § 1983 for violating her free exercise rights under the First Amendment of the United States Constitution.

Hall’s suit is based on her denial from participation in the Virginia Tuition Assistance Grant, or VTAG, program, which provides financial assistance to Virginia residents who choose to attend accredited, private, nonprofit colleges and universities in Virginia, but limits eligibility to “nonprofit private institutions of higher education whose primary purpose is to provide collegiate, graduate, or professional education and not provide religious training or theological education.”
The district court granted Fleming’s motion to dismiss with prejudice.

Locke

Locke v. Davey, 540 U.S. 712 (2004), is a seminal Supreme Court case on the relationship between the Free Exercise Clause of the First Amendment and state educational scholarship programs like the VTAG program. There, the state of Washington established a scholarship program to assist academically gifted students with college expenses. Davey was informed that he could not use the scholarship for his theology degree. The Supreme Court held that Washington’s scholarship program did not violate the Free Exercise Clause.

The Supreme Court’s decision in Locke is directly analogous to this case. Hall even concedes that the facts here “are on all fours [or identical]” with Locke. But Hall contends that the Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017), Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), and Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022), abrogated Locke, as Hall says, “into oblivion.” It did not.

The effects of the state laws challenged in Trinity Lutheran, Espinoza and Carson were the same—to disqualify a religious organization or school from a generally available benefit, solely because of their religious character. Like in Trinity Lutheran and Espinoza, the Supreme Court in Carson again emphasized how Locke was different and could “be of no help to Maine.” The funding in Locke was intended to be used “to prepare for the ministry,” but it could still be used for theology courses—“only a ‘vocational religious’ degree was excluded.”

And for the third time, the Supreme Court emphasized “the ‘historic and substantial state interest’ [in Locke] against using ‘taxpayer funds to support church leaders’ ” that was not present in Trinity Lutheran, Espinoza or Carson. Based on the foregoing, this court disagrees with Hall and holds that the Supreme Court has yet to either overrule or abandon its decision in Locke through Trinity Lutheran, Espinoza or Carson.

Lemon

In opposition to the straightforward analysis above, Hall contends that her current position should be analogized to the Supreme Court’s treatment of the Lemon test, which the Supreme Court noted that it “long ago abandoned” in Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022). Unlike the Lemon test, nowhere in Trinity Lutheran, Espinoza or Carson did the Supreme Court make such explicit statements rejecting Locke’s holding. So, in the absence of any statement from the

Supreme Court questioning or rejecting Locke’s holding, it is still the law.

Affirmed.

Concurring opinion

Richardson, J., concurring:

I concur because Locke v. Davey, 540 U.S. 712 (2004), controls here. I write separately because Locke was wrongly decided. It betrays the founding generation’s commitment to religious liberty, and the Supreme Court should formally overrule it. But, until the Court does, Locke binds us—even as a moth-eaten shell of its former self.

Hall v. Fleming, Case No. 25-1574, May 13, 2026. 4th Cir. (Benjamin), from EDNA at Richmond (Novak). Steven W. Fitschen for Appellant. Christopher Praeger Bernhardt for Appellee. VLW 026-2-168. 18 pp.

Full-Text Opinion

VLW 026-2-168