3 Unsettled Questions Regarding the Constitutionality of Public Funding of Religious Schools

The charter school movement has seen many recent Supreme Court victories widening their scope to faith-based education, but some ambiguities remain.

In 1875, Republican Rep. James G. Blaine (R–Maine), then speaker of the U.S. House of Representatives, proposed a constitutional amendment to outlaw government aid to educational institutions with a religious affiliation. This idea was largely motivated by anti-immigrant bigotry and targeted Catholic schools serving large immigrant populations.

That amendment never came to pass, but Blaine's crusade led many states to add similar provisions to their constitutions. Today, 37 state constitutions have "Blaine amendments." Under the guise of defending the "separation of church and state," these policies have been a roadblock to school choice programs that include religious schools.

Between 2017 and 2022, the U.S. Supreme Court issued three rulings that rang the death bell for state-level Blaine amendments: Trinity Lutheran Church of Columbia v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin. Education law expert Charles J. Russo wrote in an April 2023 article in America: The Jesuit Review that these rulings open up "more ways for public dollars to support faith-based education." But federal constitutional questions remain unresolved on three important school-choice funding issues.

One such issue involves the public/private Blaine amendments still active in some states. These ban aid to all private schools, religious or nonreligious. For example, the Alaska constitution's Article VII, Section 1 on "Public Education" states that "No money shall be paid from public funds for the direct benefit of any religious or other private educational institutions."

Most state courts have interpreted these laws as barring aid to private schools, not to students who attend them. But a few state courts—like those in Alaska, Hawaii, and Massachusetts—have been more restrictive and do not allow programs that aid even students of private schools. In light of these recent Supreme Court decisions, those laws are now open to potential challenges.

A second unresolved issue involves anti-discrimination laws, and springs from a 2022 case arising out of Maine, Carson v. Makin. The state of Maine had long offered a tuition payment program allowing families in towns without a public high school to use public tax dollars to send their children to public and private schools, including religious schools. This program was changed in 1981 to exclude religious schools, leading to a legal challenge by two Maine families.

The U.S. Court of Appeals for the First Circuit ruled in 2020 that such barring of taxpayer funds for religious schools was constitutional. However, the U.S. Supreme Court eventually ruled 6-3 that this exclusion was unconstitutional because it was equivalent to religious discrimination.

Immediately following the Supreme Court decision, Maine Attorney General Aaron Frey criticized it in a public statement, saying "The education provided by the schools at issue…is inimical to a public education. They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff." Public money, Frey insists, should not "promote discrimination, intolerance, and bigotry."

Frey further declared that any schools "that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices."

The Supreme Court's Carson v. Makin decision does not make it clear whether any school receiving public funds must comply with all state-level anti-discrimination laws, even if their supposedly discriminatory policies are rooted in their religious beliefs. This issue will undoubtedly make its way to the U.S. Supreme Court.

A third unresolved question is whether states with secular public charter schools—public schools that are privately operated but publicly funded—can also allow religious private charter schools. The answer depends on the state action doctrine, a legal concept that limits the Constitution's "equal protection of the laws" to state action, not private action. If for federal constitutional purposes charter schools "are private then…prohibitions on charter schools being religious are unconstitutional. But if they are public—that is, 'state actors'—then the First Amendment's Establishment Clause likely requires that they be secular," writes Notre Dame Law Professor Nicolle Stelle Garnett in a December 2022 City Journal article.

This issue divides school choice proponents. For example, Garnett argues that charter schools are not state actors for federal constitutional purposes. But the National Alliance for Public Charter Schools disagrees and argues that "Charter schools are public schools and are state actors for the purposes of protecting students' federal constitutional rights."

The U.S. Supreme Court had an opportunity to accept a North Carolina case that raised questions about charter school students' constitutional rights under the federal equal protection clause, Charter Day School v. Peltier. The Biden administration urged the justices to pass on the case, and the Court did decline to take it up in June 2023. Supreme Court clarity on this state actor question will await another day, which could be coming the Court's way by way of Oklahoma.

Oklahoma authorities had approved plans for an online or virtual religious charter school that would be paid for using taxpayer dollars—like all charter schools—and run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa.

But Oklahoma's current Republican Attorney General Gentner Drummond in January 2023 formally withdrew an opinion letter which his predecessor had issued saying a religious charter school was permissible.* He even in October filed a lawsuit against the Statewide Virtual Charter School Board that had approved the school, arguing that charter schools are state actors and therefore must be secular. This raises the same state action doctrine discussed above that has yet to come before the U.S. Supreme Court.

A religious charter school model raises some prudential questions for Catholic schools. As Kathleen Porter-Magee, the superintendent of Partnership Schools, a private network of urban Catholic elementary schools, wrote in August 2023 in America: The Jesuit Review, "The most obvious reason for caution is the threat to religious liberty…blurring the line between public and private schools…could invite far more government control over what it means to teach the faith than the church wants."

Recent Supreme Court precedent has chipped away at the wall between public education money and faith-based schools, but further clarity is needed on the questions detailed above, and the Court will likely be called on to provide it in the near future.

*CORRECTION: The original version of this article misstated the nature of the opinion letter that Drummond withdrew, due to an editorial error.