Multiple school choice programs have been challenged in court and in almost every case, well-designed and religiously neutral programs that empower parents are upheld as constitutional. Often we see that those who are anti-religion in the public square get the constitutional question confused as they mistake religiously neutral for a prohibition on any religion at all. This simply isn’t how our Constitution was written nor how our nation has operated since its founding. In state after state we are seeing anti-religious roadblocks being torn down both in courts and in legislatures.
Here are just a few summaries of recent court cases that should put this argument to rest once and for all:
Zellman vs. Simmons-Harris – The Institute for Justice summarizes this case: “In 2002, the U.S. Supreme Court declared that educational choice programs are constitutional in an IJ case called Zelman v. Simmons-Harris. This case built on a number of prior decisions that held that the Establishment Clause permits neutral government programs of true private choice where individuals direct public aid to religious institutions. In Zelman, the Court held that a publicly funded scholarship program that allowed parents to choose to send their children to private and religious schools was no different. The Court explained: ‘[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.’”
Trinity Lutheran Church of Columbia Inc. v. Comer – The state of Missouri had a program that provided services to schools (public and private) but excluded religious schools, citing its “Blaine Amendment.” From SCOTUSblog: “The Missouri Department of Natural Resources’ express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.”
Espinoza vs. Montana Department of Revenue – Relying on its “Blaine Amendment,” Montana’s Supreme Court struck down the tax credit scholarship program on the grounds that it funded students attending religious schools. This case was centered on the idea that states could not include organizations in state programs if their “status” was religious. In other words, religious organizations could not receive state funds directly or indirectly. After almost 100 years of anti-Catholic and anti-religious bigotry, this case finally knocked down state Blaine Amendments, at least as it relates to educational choice and similar state programs that utilize private providers of any type.
Carson vs. Makin – After Espinoza, Maine tried to bypass the requirement to include religious schools if any other type of private school was included (“religious status”) by saying that they were excluding religious schools who “use” the money for religious purposes. You can be religious, they argued, as long as you don’t do anything religious. The Supreme Court agreed with the plaintiff that this is an absurd standard. Espinoza canned religious discrimination in state programs based on “religious status.” This case put the final nail in the coffin by prohibiting religious discrimination via “religious use” restrictions. From SCOTUSblog: “Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments to parents who live in school districts that do not operate a secondary school of their own violates the free exercise clause of the First Amendment.”
Our Lady of Guadalupe School v. Morrissey-Berru – This case addressed an additional issue beyond the “Blaine Amendment” discrimination issues. Can government regulate religious organization’s employment or religious standards to prevent “discrimination?” The answers is: No. It can’t. The court defined the “ministerial exception” to include religious schools. This case goes a long way in warning against over-regulation of religious schools in an effort to control them or prevent them from participating in programs.
From general benefit programs, to scholarship and voucher programs, to employment and religious policies of religious schools; the courts have been clear that it is not a violation of Constitutional principals to include religious schools in programming of about any nature and that excluding them is actually a violation of the rights of parents and religious schools.
Older precedent set the stage for these decisions:
Meyer v. State of Nebraska (1923) – “Nebraska passed a law prohibiting teaching grade school children any language other than English. Meyer, who taught German in a Lutheran school, was convicted under this law. The Court declared the Nebraska law unconstitutional, reasoning it violated the liberty protected by Due Process Clause of the Fourteenth Amendment. Liberty, the Court explained, means more than freedom from bodily restraint. It also includes the right of a teacher to teach German to a student, and the right of parents to control the upbringing of their child as they see fit. While the state has a legitimate interest in encouraging the growth of a population that can engage in discussions of civic matters, the means it chose to pursue this objective was excessive.”
“Meyer v. State of Nebraska.” Oyez, www.oyez.org/cases/1900-1940/262us39
Pierce v. Society of Sisters (1925) – “The Compulsory Education Act of 1922 required parents or guardians to send children between the ages of eight and sixteen to public school in the district where the children resided. The Society of Sisters was an Oregon corporation which facilitated care for orphans, educated youths, and established and maintained academies or schools. This case was decided together with Pierce v. Hill Military Academy…Did the Act violate the liberty of parents to direct the education of their children?…Yes. The unanimous Court held that ‘the fundamental liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.’”
“Pierce v. Society of Sisters.” Oyez, www.oyez.org/cases/1900-1940/268us510.
Some of the content of this post (on recent court cases) came from a previous post: School Choice Myths In Iowa