Two petitions in ten days ask the Supreme Court to overrule Locke v. Davey, the case a state would lean on to keep religion out of a scholarship program

Two petitions for certiorari were docketed at the Supreme Court ten days apart in August, and they ask for the same thing: that the Court reconsider Locke v. Davey, 540 U.S. 712 (2004). Neither case is about §25F. Both are about the rule a state would have to rely on if it wanted to open a scholarship program and keep religious schools or religious study out of it, which makes the question they raise a live one for every state now deciding how to write its SGO rules.

Locke is the reason that question is not already settled. Washington State ran a Promise Scholarship for high-achieving students and refused to let one recipient use it to pursue a devotional theology degree. The Court upheld the exclusion, describing a space it called the “play in the joints” between what the Establishment Clause forbids and what the Free Exercise Clause requires, and holding that a state's interest in not funding the training of clergy could sit inside that space. Two decades of later decisions have narrowed it. Trinity Lutheran in 2017, Espinoza in 2020, and Carson v. Makin in 2022 each held that a state may not exclude a school from a generally available benefit because it is religious. What survives of Locke after those cases, and whether anything should, is what these petitions put in front of the Court.

The first is Hall v. Fleming, No. 26-193, filed August 11 and docketed August 14. Bethany Hall, an undergraduate at Liberty University, qualified for Virginia's Tuition Assistance Grant, worth $5,000 a year at a private in-state college. Virginia's program disqualifies students whose primary major falls under religious training or theological education, and when Hall moved from music education to youth ministries and then to music and worship, the grant went away unless she changed majors back. The Fourth Circuit, in No. 25-1574 decided May 13, 2026, affirmed the dismissal of her free-exercise claim on the ground that Locke remains binding precedent and controls. The petition asks the Court to reverse Locke outright. The respondent is A. Scott Fleming, who directs the State Council of Higher Education for Virginia, and his response is due October 14 after an extension granted August 25.

The second is Woolard v. Thurmond, No. 26-237, filed August 20 and docketed August 24. California families enrolled children in independent-study programs at charter schools and asked the schools to purchase religious curricula. The schools refused, citing California's constitutional and statutory requirement that public schools, charters included, be nonsectarian. The Ninth Circuit affirmed dismissal in No. 24-4291, in an amended opinion the Supreme Court's docket dates to March 23, 2026, holding that even assuming the materials are a generally available public benefit, independent-study programs are public enough that California may require secular curricula, and that a public school's curriculum decisions are government speech. The respondent is Tony Thurmond, California's Superintendent of Public Instruction, and his response is due September 23.

On September 1 the same organization, the NC Values Institute, filed an amicus brief in support of the petitioners in both cases. That is a small signal rather than a large one, but it is the kind of coordination that usually means a group of litigants is trying to give the Court more than one vehicle for the same question in the same term.

They are not the only vehicles. St. Mary Catholic Parish v. Roy, No. 25-581, is already calendared for argument on November 3 and asks how far Colorado may condition participation in its universal preschool program on a religious provider's compliance with state nondiscrimination rules. We wrote in August about how closely the state attorneys general who filed briefs in that case track the §25F roster. And in the First Circuit, St. Dominic Academy v. Makin, No. 24-1739, was decided on July 2, 2026, three years after Carson v. Makin opened Maine's town tuitioning program to religious schools. Maine responded to Carson by applying its Human Rights Act to schools that accept tuition money, and a Catholic school challenged the resulting requirements. The First Circuit affirmed in part and reversed in part, finding the school lacked standing on the employment rule and that its challenges to the religious and sexual-orientation and gender-identity nondiscrimination rules were unlikely to succeed. The window to seek certiorari in that case runs into the fall.

The connection to the federal credit is a conditional one, and it is worth stating precisely rather than dramatically. §25F does not require a state to include or exclude any category of school. A covered state's job under §25F(g) is to submit a list of scholarship granting organizations, and the statute's conditions on those organizations are about exempt status, the 90% test, non-comingled accounts, and serving at least ten students across more than one school. Nothing in the statute tells a state whether it may attach further conditions of its own, and several states have already shown they intend to try, whether through gating the decision itself or through the eligibility rules attached to it. When a state does write such a condition and it touches religion, Locke is the strongest authority in its favor. That is why the fate of Locke is an SGO-rules question and not only a doctrinal one.

The honest caveat is the size of the step being asked for. A cert petition is not a grant, and the Court denies the overwhelming majority of them. It has also spent twenty years narrowing Locke without overruling it, which is a pattern that can continue indefinitely. The realistic near-term reading is that St. Mary v. Roy gets argued on November 3 and decided by the end of the term, and that the two petitions sit on the docket while that happens. Whether either is granted, held, or denied will likely turn on what the Court says in Roy.

For an organization forming now, none of this changes what you build. The requirements that will determine whether you land on a state's list are in the statute and will not move: 501(c)(3) status, no private foundation classification, a separate account for qualified contributions, 90% of income to scholarships, and at least ten students across more than one school. Start with the free SGO builder, read how to start an SGO, and follow the state decisions on the Virginia, California, and Maine pages.