Public Financial Support for Private Schools Upheld by Supreme Court

As some states seek a strict separation of Church and State, the U.S. Supreme Court has ruled in two recent cases that Christian and other religious schools must be provided the same eligibility to receive public funds as other private schools. The Court ruled that prohibiting a school from receiving public funds solely because it’s a religious organization, where the same aid is available to secular private schools, violates the Free Exercise Clause. This constitutional clause protects those who participate in religious activities from unequal treatment and against laws that pose special limitations based on religious status.

While the Free Exercise Clause doesn’t protect individuals using state funds for a purely religious course of study, see Locke v. Davey, it does uphold an individual’s right to use government funds, a scholarship in the case of Espinoza v. Montana Department of Revenue (2020) and tuition assistance in the case of Carson v. Makin (2022), to attend a private Christian school.

Espinoza v. Montana Department of Revenue – June 30, 2020

The U.S. Supreme Court ruled in a 5-4 opinion that a state may not deny financial support to families who have chosen private religious school education for their children where that same aid is available to families with children in secular private schools. 

In Espinoza, parents of students from private religious schools brought an action against the Montana Department of Revenue, challenging a rule that specifically excluded religious private schools from a state-sponsored scholarship program for students choosing to attend private schools. 

The State of Montana had a “no aid” provision in Montana’s Constitution that prohibited aid to religious schools.  This provision included language similar to a proposed U.S. constitutional amendment, known as the Blaine Amendment, that failed back in the 1870s.  The Blaine Amendment, named after former House Speaker James G. Blaine, attempted to prohibit the use of government funds to aid religious schools.  When the amendment failed, thirty-seven states, including Montana, subsequently inserted similar provisions to the Blaine Amendment into their state constitutions.  

In Espinoza, the Court held that the state, through its application of the no-aid provision, discriminated against religious schools and the families who desired to send their children to religious schools in violation of the First Amendment’s Free Exercise Clause.  The Court relied on the case of Trinity Lutheran Church of Columbia, Inc. v. Comer that it decided in 2017 and held that the Free Exercise Clause protects religious observers against laws that impose “special disabilities on the basis of religious status.”  In Trinity Lutheran, the Court held that disqualifying recipients who were religious from receiving a public benefit just because of their religious character imposed “a penalty on the free exercise of religion that triggers the most exacting scrutiny.”

Carson v. Makin – June 21, 2022

Almost two years later, the Supreme Court reached a very similar decision, ruling in a 6-3 opinion that states cannot prohibit families from using public tuition assistance to send their children to religious schools when the public funds are otherwise available to similarly-situated “nonsectarian” private schools.

In Carson, the parents of students at two different Christian schools sued the commissioner of the Maine Department of Education, challenging Maine’s law that requires schools to be “nonsectarian” to receive tuition assistance funds from the state. According to state law, a school is “sectarian” and ineligible if it is associated with a particular faith or belief system and also promotes or teaches academic material through the lens of the faith or belief system with which it is associated.

The state of Maine sought to distinguish its law from the one at issue in Espinoza, arguing that private religious schools were not ineligible based solely on their religious status but on the basis that the schools would use the for religious ends. However, the Court did not see any meaningful distinction. Based on the same reasoning in Trinity Lutheran and Espinoza, the Court ruled that Maine’s law violates the Free Exercise Clause of the First Amendment.

While the Court’s opinions in Espinoza and Carson do not require states to fund religious education programs, they also do not allow programs allocating state aid to private school education to differentiate between religious and secular private schools. The Court’s rulings in Espinoza and Carson set a powerful precedent against any similar no-aid provisions in the future.

Posted July 2020. Updated June 2022.

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