Notre Dame Law School faculty and programs filed an amicus brief with the U.S. Supreme Court in Hall v. Fleming and Johnson v. Fleming in support of petitioners Bethany Hall and Cameron Johnson, urging the Court to hear challenges to Virginia higher-education funding restrictions and reconsider Locke v. Davey (U.S. 2004).
The amici include the Notre Dame Education Law Project, Notre Dame Program on Church, State & Society, Lindsay and Matt Moroun Religious Liberty Clinic, and the Orthodox Union. Notre Dame Law Professor Richard Garnett, director of the Program on Church, State & Society; Professor Nicole Stelle Garnett, director of the Education Law Project; Professor John Meiser, director of the Lindsay and Matt Moroun Religious Liberty Clinic; and Meredith Kessler, managing attorney of the Lindsay and Matt Moroun Religious Liberty Clinic, served as counsel, along with Pepperdine Caruso School of Law Professor Michael Helfand.
Hall and Johnson are students at Liberty University who were denied funding through Virginia’s Tuition Assistance Grant Program (VTAG), which provides financial assistance to Virginia residents attending eligible private colleges and universities in the state. Hall initially qualified for the grant while majoring in Music Education but became ineligible after changing her major to Youth Ministries and later Music & Worship. Johnson, who is majoring in Pastoral Leadership, was similarly denied a VTAG award because Virginia classifies his program as religious training or theological education. Both students argue that excluding them from otherwise available tuition assistance because of their religious studies violates the First Amendment’s Free Exercise Clause.
In Locke, the Supreme Court upheld a Washington state scholarship program that excluded students pursuing degrees in devotional theology designed to prepare them for the ministry. The amicus brief argues that Locke is in tension with the Supreme Court’s more recent religious-freedom decisions, which have held that the government generally may not exclude religious institutions or individuals from otherwise available public benefits because of their religious status or exercise. The brief argues that, despite the Court’s efforts to limit Locke to the narrow context of training for the ministry, the decision continues to provide governments with a “permission structure” for excluding religious students and institutions from educational funding programs.
The brief points to dozens of state and federal laws and regulations that the amici argue improperly restrict public benefits for students pursuing higher education on the basis of religion. These include provisions that exclude students because they attend certain categories of institutions (seminaries, divinity schools, or religious colleges and universities); prohibit funding for degrees or courses involving theology, religious studies, or religious instruction; and restrict access to other forms of educational assistance, including work-study and child-care grants, for students studying religious subjects. In Indiana, for example, the brief identifies the EARN Indiana work-study program, which prohibits participating students from performing work involving “sectarian activities.”
The issues raised in the brief also reflect recent developments at the federal level. Last month, the Department of Justice’s Office of Legal Counsel issued an Opinion concluding that religious restrictions on generally available federal funding programs are presumptively unconstitutional. Nicole Garnett, Helfand, and Meiser recently wrote about the Opinion’s broad implications in a City Journal article, “The Department of Justice Strengthens Religious Freedom.”
“The Supreme Court has made clear that when the government creates public programs that enlist private organizations to advance important public policy objectives like education, the Free Exercise Clause prohibits it from discriminating against religious organizations,” Professor Garnett observed. “It also prohibits the government from requiring them to refrain from religious conduct or instruction as a condition of their participation. Locke sits uncomfortably with this rule. It has sown confusion; dozens of state and federal laws discriminate against religious institutions and religious conduct in ways that cannot possibly be justified under Locke. The Court should abandon Locke to ensure the government does not unconstitutionally consign religious believers to second-class citizenship.”
Second-year law students Matthew Krauter and Braden Daniels also assisted with the amicus brief.
“Our brief spotlights how states coast to coast aren't getting the Supreme Court's message that religious discrimination has no place in education funding,” said Krauter. “Overturning Locke v. Davey may be the only way to end that confusion and ensure all students have equal access to the education they deserve.”
Krauter added, “Leaving bad precedent on the books has real costs. The students in these cases aren't alone. Students of all faith traditions are losing out on scholarships and support solely because of where they choose to study or the religious nature of their studies. The Supreme Court should confirm that this unconstitutional discrimination cannot continue any longer.”
“Locke’s effects extend well beyond the narrow circumstances of the case itself. By permitting governments to exclude students pursuing religious studies from scholarship programs that are otherwise available to their peers, confusion around Locke has allowed religious students to bear a financial penalty because of their religious commitments,” said Daniels. “We hope the Court will take this opportunity to clarify that students should not be denied equal access to public educational benefits simply because they choose to pursue a religious course of study.”
The amicus brief asks the Supreme Court to grant the petitions and reconsider Locke, arguing that religious exclusions from higher-education funding remain widespread despite the Court’s more recent Free Exercise decisions. According to the brief, the Court’s efforts to narrow Locke have not prevented governments from continuing to exclude religious students and institutions from otherwise available educational benefits.
Originally published by at law.nd.edu on September 28, 2026.