Her Major Cost Her the Grant: A Virginia Student at the Supreme Court

A Liberty University student lost her state grant when she changed her major. The judge who ruled against her said the law forcing that result is wrong.

In February 2023, Liberty University told Bethany Hall she qualified for $5,000 a year from the Virginia Tuition Assistance Grant. She enrolled that fall as a Music Education major. Then, in the words of the federal appeals court that later heard her case, she “heard God’s call to ministry and changed her major to ‘Youth Ministries.’”

The grant disappeared. She tried switching to Music & Worship instead. That did not qualify either. Hall went without the grant for two academic years, a loss of $10,000, and she sued.

Here is the short version. Hall lost, twice. Virginia’s rule still stands today. But one of the judges who voted against her wrote separately to say the Supreme Court precedent binding his hands was wrongly decided and should be overruled. Her case is now at the Supreme Court, and Virginia has to answer it by September 14.

What the rule actually says

The grant helps Virginia residents attend private, nonprofit colleges in the Commonwealth. Students at religious schools are welcome. Liberty, Regent, and Eastern Mennonite students all qualify. The disqualifier is not the school. It is the major.

Virginia law limits the grant to institutions that do not provide “religious training or theological education,” and the state’s regulation names the excluded majors by federal code number. Anything in CIP Code 39, the federal classification for programs that prepare people for religious vocations, is out. Youth Ministries is in that code. So is Music & Worship. Music Education is not.

There is one accommodation. A student carrying a double major may keep the grant, so long as she does not take more credits in the ministry major than in the other one. Hall could have kept her money by studying something else alongside her calling, or by abandoning it.

Why she lost

A federal judge in Richmond dismissed her case, and on May 13 the Fourth Circuit affirmed. The reason is a 2004 Supreme Court decision called Locke v. Davey, which upheld a nearly identical Washington State scholarship rule. Hall conceded her facts were essentially the same as Davey’s. Her argument was that three more recent decisions had quietly killed Locke.

The court disagreed, and its reasoning is worth stating fairly. In each of those later cases the state had excluded someone for being religious: a church denied a playground grant, religious schools cut out of tuition programs. Each time, the Supreme Court distinguished Locke rather than discarding it, because Washington had not barred religious students. It had declined to fund one category of study. As the Fourth Circuit put it, the Supreme Court has not questioned or rejected Locke’s holding, so it is still the law and lower courts must apply it faithfully.

There is a Virginia irony buried in this. The state interest Locke relied on, the objection to taxpayer funds supporting clergy, was drawn partly from James Madison’s Memorial and Remonstrance, written against a Virginia bill to pay teachers of the Christian religion. Virginia’s founding argument about religious liberty is now the argument used to deny a Virginia student her grant.

The judge who ruled against her, and then said this

Judge Julius Richardson joined the decision. Then he wrote his own opinion. Because Supreme Court and appellate opinions belong to the public, we can quote him at length, and he deserves it.

He opened by saying he concurred only because Locke controls, and that he wrote separately because Locke was wrongly decided, betrays the founding generation’s commitment to religious liberty, and should be formally overruled. Until then, he wrote, it binds lower courts, “even as a moth-eaten shell of its former self.”

He worked through the history and concluded it does not hold up, borrowing Justice Scalia’s line that no one would seriously contend the Framers would have barred ministers from using public roads on their way to church. In a footnote about Chief Justice Rehnquist’s majority in Locke, Richardson wrote five words: “Even a great Chief Justice can err.”

Then the sentence that matters most for Hall. Absent Locke, he wrote, the Supreme Court’s recent decisions would require holding that Virginia’s program violates the Free Exercise Clause. But lower courts are not free to ignore a precedent the Supreme Court has not buried. He closed by calling Locke a stain on our Free Exercise jurisprudence, one the Supreme Court has all but confined to its facts, which lower-court judges must nevertheless keep applying.

That is a federal appellate judge explaining, in a published opinion, that he believes the Constitution is on Bethany Hall’s side and that his office does not permit him to say so as a matter of judgment. Whatever one thinks of the outcome, that is judicial restraint of a kind worth noticing.

Now at the Supreme Court, with a Virginia deadline

On August 11, Hall’s lawyers filed a petition asking the Supreme Court to overrule Locke outright. It is docketed as No. 26-193, and Virginia’s response is due September 14.

One name on that petition is worth pausing over. Joshua Davey, the student who lost Locke v. Davey in 2004, is now a practicing attorney and appears as counsel for Bethany Hall. Twenty-two years later he is back, arguing that students should not be singled out because their course of study reflects a religious calling.

Steven Fitschen of the National Legal Foundation, who argued Hall’s appeal, said it is odious to the Constitution for a state to fund a degree in music but refuse to fund a degree in music and worship. That is advocacy language, and readers should weigh it as such. The measured version is Richardson’s, and it says much the same thing from the bench.

A word of caution against false hope. Filing a petition is not the same as the Court agreeing to hear the case. The Supreme Court turns away the overwhelming majority of petitions without comment. Nothing about Virginia’s rule has changed, and nothing changes unless the Court both takes the case and reverses.

Why this matters to Virginians

Because the Commonwealth is telling its own students that a call to ministry costs $5,000 a year. Not that they may not study it, and not that they may not attend a Christian college. Only that when a young woman decides to prepare for the service of the church, Virginia withdraws help it extends to everyone else.

There is a serious argument on the other side, and Christians should be able to state it. Keeping the state out of the business of training clergy has protected the church as often as it has burdened it, and a government that funds pastors can eventually expect to shape them. That concern is real. The question is whether declining to fund ministry students inside a program open to everyone else is the same thing as refusing to establish a church. Richardson thinks it plainly is not. The Supreme Court has not yet said.

And here is the part that does not depend on nine justices. This exclusion is written in Virginia’s own code and Virginia’s own regulation. The General Assembly could change it in a single session, whatever the Supreme Court does or does not do with Bethany Hall’s petition.