On Thursday, a federal district judge in Austin will hear oral argument on whether to make permanent a preliminary injunction issued in February against a Texas rule excluding a category of religious schools from the state's $1 billion school choice voucher program. Regardless of how the ruling comes down, it will set a national precedent — because the constitutional questions the case presents have not been squarely decided by any federal appellate court, and they sit at the intersection of three Supreme Court lines of authority that do not fit comfortably together.
Six specific questions are likely to be on the judge's mind Thursday morning. Each of them is answerable. Each of them is also consequential. This is what the hearing is actually about.
Question One: Does Trinity Lutheran Require the Voucher Program to Include These Schools?
The first line of authority is the Religious Status doctrine, most clearly stated in Trinity Lutheran Church of Columbia v. Comer (2017), which held that a state cannot exclude a church from a generally available public benefit program solely because of its religious status. The doctrine was extended in Espinoza v. Montana Department of Revenue (2020) and applied to a voucher program specifically in Carson v. Makin (2022). The doctrine's current form prohibits states from operating neutral benefit programs that exclude religious institutions because of their religious character.
Texas's rule does not exclude all religious schools. It excludes a specific category — schools whose curricular framework is found, by the Texas Comptroller, to be "incompatible with constitutional order." The state's argument, as outlined in its brief in opposition to the preliminary injunction, is that the rule is not a religious-status exclusion at all but a viewpoint-neutral educational-quality standard applied to all schools.
The plaintiff schools — 14 institutions in North and Central Texas — argue in response that the Comptroller's criteria, as applied, have functioned as a religious status test. Their reply brief catalogs the criteria and shows that no school has been excluded under them except on grounds related to religious curricular content.
The question for the court on Thursday is whether Trinity Lutheran and its line reach a rule that is facially neutral but has operated, in practice, as a religious status filter. The Fifth Circuit has not decided this question. The Sixth Circuit has decided it once, in a different context, in favor of the plaintiffs. The Tenth Circuit has decided it once, in the state's favor. No Supreme Court ruling has resolved the split.
Question Two: What Standard of Review Applies?
The second question is about the standard of review. Religious status exclusions get strict scrutiny. Viewpoint-neutral educational regulations get rational basis review. Most regulatory exclusions sit somewhere in between.
At the preliminary injunction stage, Judge Ezra applied strict scrutiny and found that the state's interest in preventing "foreign legal traditions" from influencing American education, while legitimate, was not narrowly tailored to the specific exclusion the Comptroller had applied. That holding was preliminary. At Thursday's hearing, the state will argue that strict scrutiny was the wrong standard, and that the court should apply intermediate or rational basis review.
The judge's decision on standard of review will effectively decide the case. Under strict scrutiny, the state faces a high burden and is likely to lose. Under rational basis, the state faces a low burden and is likely to win. The intermediate cases — applying a heightened-but-not-strict standard — are the ones that appellate courts have most frequently taken up on direct appeal.
Question Three: Is the Rule Actually Neutral?
The third question is the one the plaintiffs are most focused on. Even if the Comptroller's rule is framed in religion-neutral language, is it operating neutrally?
The plaintiffs will present at Thursday's hearing, per court filings, exhibits showing that the 14 excluded schools share a single religious affiliation, that the Comptroller's exclusion criteria were drafted after consultation with a small number of outside organizations with documented positions on that specific religious tradition, and that no school outside that religious affiliation has been excluded under the same criteria. Their argument, grounded in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), is that a regulation that is facially neutral but operates discriminatorily against a religious group fails neutrality scrutiny as a matter of constitutional law.
The state's response, outlined in its trial brief, is that the exclusion criteria were drafted without reference to any specific religion and have simply captured the only schools whose curricula raise the concerns the criteria were designed to address. The state will argue that the Comptroller's office did not intend religious targeting and that the operational effect reflects the actual underlying curricular facts, not discriminatory design.
The judge has to decide whether the Lukumi framework applies, and if so, whether the evidentiary record supports a finding of operational non-neutrality. That is a fact-intensive decision. It is also the decision most likely to shape the appellate record.
Question Four: What Happens to the $1 Billion Program?
The fourth question is remedial. If the court holds the exclusion unconstitutional, what is the remedy?
Three options are on the table. The court could enjoin the exclusion, leaving the broader voucher program operational and requiring the state to process applications from the 14 schools. The court could enjoin the exclusion and require the state to modify the Comptroller's review criteria, specifying constitutionally permissible and impermissible factors. The court could enjoin the entire program until the state revises the criteria, halting voucher disbursements statewide until compliance.
The plaintiffs are seeking the first remedy. The state has argued, in its trial brief, that the second remedy — court-supervised revision of the criteria — would be administratively unworkable and would amount to federal judicial management of a state education program. The third remedy has not been publicly requested by any party but has been used in similar cases by courts that found the state's framework fundamentally compromised.
Judge Ezra's February preliminary injunction adopted the first remedy. Thursday's question is whether that remedy remains appropriate for a permanent order.
Question Five: Is the Record Ready for Appeal?
The fifth question is procedural but strategically important. Thursday is a hearing on a permanent injunction — the final form of injunctive relief. Whatever the judge decides, the losing side will appeal.
The Fifth Circuit, where any appeal will go, has not previously addressed the Trinity Lutheran/Espinoza/Carson line in this specific factual context. The record the judge compiles at Thursday's hearing will be the record the Fifth Circuit reviews. Both sides' lawyers are aware of this. Expect testimony designed less to persuade the district judge than to build a record for the appellate panel.
The question for the district court is how thorough a record to build. A fuller record — more expert testimony, more fact witnesses, more exhibits — serves appellate review. A narrower record moves the case to the Fifth Circuit faster. In this particular case, where speed matters because the voucher program is disbursing funds now and a preliminary injunction is already in place, the judge's pacing decisions will affect when the appeal reaches argument.
Question Six: What Does This Mean for Other States?
The sixth question is not, strictly speaking, on the judge's docket. But it is the question that makes Thursday's hearing a national event.
Florida, Missouri, Georgia, and at least two other states have rules analogous to the Texas Comptroller's criteria — either in effect or in advanced legislative stages. The Texas case is the first federal constitutional challenge to reach a permanent injunction hearing. The ruling, whether the judge grants or denies, will be cited in every parallel state lawsuit. It will shape whether state attorneys general expand similar exclusions to other religious groups or pull back to avoid Establishment Clause exposure. It will shape the broader question the Religious Liberty Commission is scheduled to address in its final report around May 1.
The caucus coalition behind the state-level rules — the one that has been driving the state-by-state legislation through model legislation and think-tank coordination — has staked political capital on the Texas precedent. If the plaintiffs win at the district court level and the injunction holds on appeal, that coalition's legislative model is vulnerable. If the state wins, the model is viable in every state with a Zelman-compatible voucher program.
What the Judge Signaled in February
Judge Ezra's preliminary injunction opinion in February used three phrases worth flagging ahead of Thursday's argument. The first was "strict scrutiny applies." The second was "the state's interest, while legitimate, is not narrowly tailored." The third was "the Comptroller's criteria have, in operation, functioned as a religious status test within the meaning of Trinity Lutheran and its successors."
None of those phrases commits the judge to any specific ruling at the permanent injunction stage. Each of them does indicate the analytical framework the judge was operating under two months ago. A judge who found, preliminarily, that strict scrutiny applied, that narrow tailoring was lacking, and that the criteria operated as a religious status test has already identified the framework under which the permanent injunction is most likely to be granted.
What could change that? Two things. First, if the state introduces evidence, unavailable in February, that the Comptroller's criteria have been applied to schools of other religions in the interim. Second, if the state offers a narrower version of the criteria — tailored specifically to the curricular concerns the state has articulated — that would effectively concede the original rule's overbreadth while arguing that a revised rule is constitutional.
Neither appears likely based on the parties' pre-hearing filings. But the record closes Thursday. What gets said in that courtroom becomes the basis for whatever the district court decides, and whatever the Fifth Circuit later reviews.
Why It Matters
Thursday's hearing is not a constitutional ruling on religious liberty in general. It is a specific ruling on one state's exclusion of a specific set of schools from one public benefit program. But the legal questions the case presents — how broadly Trinity Lutheran reaches, what counts as operational non-neutrality, what remedies courts should apply to exclusionary rules — have been percolating in the lower courts for five years without a definitive answer.
Thursday will produce an answer. That answer will be appealed. That appeal will be briefed, argued, and decided by the Fifth Circuit within the next 12 to 18 months. Depending on the outcome, the Supreme Court may take it. The case is on the path that leads from a district courtroom in Austin to the white marble front steps of the Supreme Court, and Thursday is the first day of the record that ends up there.
Six questions. One hearing. A lot depends on what the parties have chosen to put in the record — and what the judge chooses to believe.