Liberty Student Asks Supreme Court to Overturn Locke

A Liberty University student is asking the U.S. Supreme Court to overturn a 22-year-old precedent that allows States to deny some forms of tuition aid to students studying for religious ministry.

Attorneys for Bethany Hall filed a petition for a writ of certiorari this week in Hall v. Fleming. The petition directly challenges the Supreme Court's 2004 ruling in Locke v. Davey and asks the justices to rule that Virginia cannot deny Hall a tuition grant solely because she chose a religious major. (First Liberty)

The National Legal Foundation, Claybrook LLC, Troutman Pepper Locke, First Liberty Institute and Alliance Defending Freedom are representing Hall in the case.

Hall is a full-time undergraduate student at Liberty University in Lynchburg, Virginia. She qualified for a $5,000-per-year grant through the Virginia Tuition Assistance Grant program (VTAG) while studying Music Education.

That changed after Hall switched her major to Youth Ministries and later to Music & Worship. Virginia determined those programs fell within its exclusion for religious training or theological education and declared her ineligible for the grant.

The State program helps Virginia residents attend accredited private, nonprofit colleges and universities. Students attending religious schools, including Liberty University, may receive VTAG funds. The dispute centers instead on what students choose to study. Virginia regulations exclude certain programs classified as religious training or theological education.

Hall's attorneys argue that distinction violates the Free Exercise Clause of the First Amendment.

“It is odious to our Constitution for a State to fund a degree in music but refuse to fund a degree in music & worship,” said Steven Fitschen of National Legal Foundation. “The Free Exercise clause is meant to encourage and even prefer religion. But Virginia’s decision to deny funding based upon religious use is the type of hostility toward religion rejected by the First Amendment.”

At the center of the dispute is Locke v. Davey. In that 2004 case, the Supreme Court upheld Washington State's decision to exclude students pursuing a devotional theology degree from a State scholarship program. The Court found that States had some room under the First Amendment to decline to fund training for the ministry.

Josh Davey, the student at the center of that case, is now an attorney with Troutman Pepper Locke and is serving as co-counsel for Hall.

“Twenty-two years ago, the Supreme Court’s decision allowed States to single out students like me because our course of study related to our religious calling. I am hopeful that the Court will correct that decision and treat students like Bethany equally,” Davey said.

Since Locke, however, the Supreme Court has issued several major rulings limiting the power of States to exclude religious people and institutions from public benefit programs.

Most recently, the Court ruled 6-3 in Carson v. Makin in 2022 that Maine violated the Free Exercise Clause by excluding religious schools from an otherwise available tuition assistance program. Chief Justice John Roberts wrote that Locke had a narrow reach tied to the historical concern over using taxpayer money to train clergy.

Hall's case now asks the Court to revisit that remaining exception.

“Excluding students from a State scholarship or grant simply because their choice of major is religious is discriminatory,” said Jeremy Dys, Senior Counsel for First Liberty Institute. “Locke betrayed the Founder’s commitment to religious liberty. The Supreme Court should formally overrule it.”

“The government can’t deny publicly available benefits because a student’s major is too religious. That’s religious discrimination. It’s wrong, and it’s unconstitutional,” said John Bursch, Senior Counsel and Vice President of Appellate Advocacy at Alliance Defending Freedom.

Hall previously challenged Virginia's policy in federal court. After a district court dismissed her lawsuit, she appealed to the U.S. Court of Appeals for the 4th Circuit.

A three-judge panel unanimously upheld the dismissal on May 13. The appeals court concluded that Hall's case was directly controlled by Locke and that lower courts remained bound by the Supreme Court's 2004 ruling. (Fourth Circuit Court)

Judge Julius Richardson agreed with that result because of Supreme Court precedent, but wrote separately to sharply criticize the precedent itself.

Richardson wrote that Locke “is a stain on our Free Exercise jurisprudence.” He added that “until the [Supreme] Court buries Locke, we lower-court judges must keep applying it.”

Hall's attorneys are now asking the Supreme Court to do just that.

“Only the Supreme Court can overrule Locke, and there is every reason for the Court to overturn that erroneous decision now. Locke was wrong when it was decided, and this Court’s subsequent case law has further eviscerated its fatally flawed foundation,” attorneys wrote in the petition.

The Supreme Court is not required to hear Hall's appeal. At least four justices must vote to grant review before the case can proceed to briefing and oral arguments.