May School Choice Programs Categorically Exclude Religious Schools (but Include Private Secular Schools)?


Yes, said the First Circuit, upholding Maine's exclusion of religious schools; no, said the Second Circuit, striking down Vermont's. The cases appear to turn on whether the exclusion is based on "religious status" of the schools or "religious use" of the funds—a pretty gossamer distinction, if you ask me (see Justice Gorsuch's concurrence in Trinity Lutheran Church v. Comer (2017)). The Institute for Justice's supplemental brief in the challenge to the Maine case (Carson v. Makin) lays the matter out nicely; it will be interesting to see what the Court does with this.

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  1. Well, money is fungible, but religious schools DO typically teach secular topics, not just religion. While many 'secular' schools teach things that are religion in all but name.

    So you could make an argument for the money not being allowed to cover the full bill. But even that is kind of tenuous, since people on welfare are typically allowed to spend their money on religious purposes, even if it came from the government.

    But the Vermont case is rather clear, in as much as the Vermont constitution specifically authorizes aid to religious schools so long as it isn't used for religious instruction or worship. So the outcome was pretty much constitutionally dictated.

    1. I agree -- and when the *public* schools not only teach things which are religion in all but name but also prosecute Blasphemy, I fail to see how a distinction can be made.

      As to prosecution of Blasphemy, see:

    2. The 1A’s religious clauses were drafted to promote a robust religious market place so it is ridiculous to not include religious schools in school choice programs as long as the vouchers are given to parents and the parents make the decision. So even though I agree somewhat with Thomas in Newdow I could see a state getting involved in promoting a church as a free exercise issue because of the inherent power of the state.

      1. The vouchers are tax dollars which should not fund religion. However, I would have less issue with this provided the religious schools were required to meet the same educational requirements and accept the same diversity of students that public schools do. This largely means evangelical and catholic schools would need to admit, among others, athiests and homosexuals.

        (For the record: Jesuit schools are generally very good at admitting everyone regardless of how they match up to Catholic principles. But not all Catholic schools are Jesuit.)

        1. Tax dollars returned to citizens to allow citizens to use however they please doesn’t violate the FEC and it has nothing to do with the Establishment Clause which is a federalism provision and so it isn’t relevant.

  2. Wasn't this resolved in Espinoza? No matter, I suppose the court will resolve it again.

    My understanding is the government can say. we will give you money if you do this, this, and this, or obtain these scores on a exam or something in these secular areas. A government cannot say, we won't give you money if you teach religion.

    Which seems entirely reasonable to me. I dont wish to fund certain yeshiva in Brooklyn who don't teach English to their kids ... not because they are religious, but because they don't teach English to their kids! (Obligatory not every Jewish school is like this I am talking about a very specific few). If New York wanted to establish a school choice program, it shouldn't have to fund them.

    But it can't deny funding on the basis of religion alone.

    1. Money should just follow the kid - private, public or home school - doesnt matter. Parents make decision for their own kids on what school is best for them. Doesnt matter what you or I think is best for every kid.

      1. As long as the school is accredited by *somebody* -- that's the deal we made 70+ years ago with the GI Bill and subsequent student aid to attend private colleges & universities.

        Now there are problems with the regional accreditors, but that is another issue. I'm not saying that I agree with the Maine Department of Education -- I don't -- but they do have standards for those schools which they accept as meeting truancy attendance requirements.

    2. Remember (a) that these religious schools are accredited by an outside accreditor and (b) in many cases, these are 24/7 residential schools due to liogistics. (What's not mentioned in this suit is that a lot of these children live in unorganized territories where the state itself has to act as the town government and hence provide the school -- in some cases, these are offshore islands.)

      So, at least in Maine, the Yeshiva would be teaching an accredited curriculum even if it hadn't been accredited by the state bureaucrats -- that was the other side of the Bangor Christian settlement.

      So the Jewish family wants their child fed Kosher food -- and the secular schools don't provide that. So the Jewish parents want their child sent to the Yeshiva instead. A Yeshiva which complies with the Maine Learning Results (curriculum requirement), has the required number of hours in everything (actually exceeds it), and whose students routinely score way above average on the Maine State Assessment exams.

      So the kids learn Hebrew on their own time (i.e. outside of the minimum mandated curriculum hours) -- so what? It's not going to hurt them to learn more than they are required to -- and it's a world language as well...

    3. The current state of "freedom of religion" in the country includes claims that anti-discrimation laws burden religious faith. Apparently, a Christian cannot practice Christianity if they're prevented from discriminating against atheists and homosexuals in all aspects of their personal and professional lives. So if the school doesn't teach evolution, for example, then refusing the funding would be based on their religious expression. Or, at least, that's my non-lawyer take on the matter.

  3. it will be interesting to see what the Court does with this.

    "interesting", that's one word for it. Personally I would have gone with "utterly predictable", but that's just me.

  4. Calling the distinction gossimer is a bit like calling the distinction between soeech related to government programs (which is government aoeech and government can control) and speech by subsidized speakers (which is private and government can’t control) godsimer.

    It’s a very analogous distinction. Subsidized use permits government control; mere subsidized status does not. It makes all the difference in the world. Since pretty much everyone gets some government subsidy, ignoring the distinction lets government control everything.

    So here. A religious use (e.g. subsidy for chapels or prayer books in religious schools) arguably involves actual government subsidy of religion. Religious status (e.g. a subsidy for mathematics teaching or playgrounds in religious schools) arguably doesn’t. And as these examples illustrate, while there are shades of gray at the borders, the argument is often a pretty clear one.

    It’s not just a useful distinction, it’s a critically important one if you accept that government both can’t subsidize religion directly, and also can’t withhold subsidies from secular activities just because done by religious people or institutions.

    1. Your "critically important distinction" seems to me to be just a legal device allowing public funds to flow to religious institutions. We could argue about whether this is a good or bad thing, or whether it's constitutional, but given money's fluidity I'm not sure there's any real life difference in the distinction.

      1. "Your “critically important distinction” seems to me to be just a legal device allowing public funds to flow to religious institutions. We could argue about whether this is a good or bad thing, or whether it’s constitutional,"

        OK. I'd argue that it's a good thing, and constitutional, if the religious institutions are doing things that the government subsidizes equally in a secular context.

        1. TIP and that's fine, but I don't really see a meaningful distinction between giving religious institutions public money to do secular stuff and giving them public money to do with as they wish. I think that distinction is just a legal fiction.

          1. Well, the former subsidizes secular activity that the state wants to subsidize, and the latter doesn’t. That’s not a legal fiction.

            1. Ha ha that's true. But if it's a secular activity the church would've otherwise used its own money for, then you are basically just giving the church money. Saying the money must be used for x secular activity and that makes it constitutional is the part I think is a meaningless legal fiction.

      2. Well, the problem in Maine is that the local town doesn't want to pay to build & support its own school.

        Because of the logistics of transportation there are only two choices -- either a parent quits her job and pays (out of her own money) for an apartment in the distant city so the child can attend that city's school, or the child has to attend a residential school. (The state won't approve a child living unsupervised, although will approve of a child living with a grandparent or other adult family member*if* that person has an established presence in the distant city.)

        So it's not just school but living environment (i.e. the dorms) and there are a lot of problems with the dorms of non-religious schools.

        Hence the child winds up with an 8th Grade education...

      3. And food stamps are just a legal device allowing people to buy more cigarettes and lottery tickets

        1. Get real -- in Maine it's also heroin and fentanyl...

        2. I suppose that's true. The only difference may be that there isn't a constitutional amendment (arguably) prohibiting public money to go to poor people.

  5. "To compel a man to subsidize with his taxes the propagation of ideas which he disbelieves and abhors is sinful and tyrannical."
    -- Thomas Jefferson

    1. Now apply that to critical race theory.

      1. CRT has no place in compulsory education either.

    2. Then overrule government speech doctrine. There isn't a single opinion for which Jeffersons viewpoint here has any merit.

      The exception, for the longest time, was religion because of a made up establusent clause theory that the court has since abandoned. Why should religion be the sole thing where the quote applies and nothing else?

      1. It shouldn't be. Government force should never be used to compel people to support ideas they find abhorrent.

      2. Government telling social security workers or DMV workers what to say is a far cry from sliding political viewpoints into the education of children then facetiously saying, "What? What?" when called on it.

        We nmjust got out of decades of these people claiming the evils of indoctrination via saying the Pledge, or whatnot.

        And, as usual, when the sides have flipped, the value judgements on the philosophical arguments flip. Now indoctrination is good, wait, bad. Wait, what?

    3. So are you saying flat-earthers, creationists, and a host of other conspiracy theorists shouldn't have to pay taxes for education?

  6. If I were an advocate for old-timey Christianity in America, I would be careful about establishing rules and standards that I did not wish to have used against me down the road, as organized religion continues to fade in popularity and power in America.

    'Might makes right' and 'heads we win, tails you lose' may work in limited contexts for clingers for another five to ten years, but after that . . .

    1. Everything I see indicates another Great Awakening....

    2. Political parties come and go. But Christianity has survived 2000 years, through wars, famines, depressions, plagues, persecution. We'll do just fine.

    3. Rev I wished you learned that about your own side right now.

      Religion is crap. The religious detente of the First Amendment is not. Stop any side, including my beloved atheism, from using government to enforce its orthodoxy.

      Something unenvisioned was taxing monstrous dollars away from The People, then returning it with strings attached, including no religion. In realms like schools and hospitals and orphanages, that religions maintained for millenia before modern politicians insinuated themselves into it.

      Sorry, in that process, no dragging the "no religion flames of purification" into so much of human life and existence.

      1. You might want to look into how well those schools, hospitals, and orphanages (and asylums) were run before holding them up as an example of the good religion can do. For that matter, why not also include the California Missions. Religions use these things to drive conversion and deny services to those that refuse or fail some other test of purity. How many native americans died or lost their culture due to religions running what are now considered public services?

        Today, we see the religous demanding the right to withhold medical treatment and other services from LGBT and other citizens because providing that service violates their religious freedom. I don't see where the religious have changed much.

  7. The other thing that comes to mind here was that the parents were arguing from the wrong side.

    Instead of saying that they wished to send their children to a religious school, they should have instead refused to send them to the approved private schools and challenged this on a truancy basis.

    Bangor Christian did that during the Reagan Administration and so scared the state that Augusta agreed to settle -- that's why schools accredited by the outside accreditor are accepted for truancy purposes. (This was also before Rev. Buddy Franklin -- head of the larger church -- got caught having an affair with the woman in the choir...)

    What could the state say if these parents simply said "provide me a school" -- and rejected all of the secular schools on religious grounds? Remember that as these are *private* secular schools, they are not bound by the First Amendment the way that a public school is -- and hence the parent's argument would be to either provide a *public* residential school (which doesn't exist*), or pay for the religious one.

    * There is a special STEM school up on the old Loring AFB in Limestone, but not only does it have specific (and high) admissions standards, but it would be easy to make a FAPE argument against it.

  8. I fail to see how the answer could possibly be yes. The law explicitly discriminates against religion. If you are a school, you can get money, UNLESS you are religious. No other argument stands up against the clearly established rule that eligibility for government benefits cannot be conditioned on a religious litmus test of any kind.
    No valid interpretation of "free exercise of religion" can ever allow a law that specifically disfavors religion.

    1. Would a law that pays unemployment benefits, as long as you aren't religious, be constitutional? Of course not. The fact that schools are involved in this case changes nothing.

    2. The schools are acting as agents of the state in its role as provider of public education by taking public education dollars in the form of vouchers. There are also principles of separation of church and state at play. This isn't about the *parents* being discriminated against due to their faith but rather the schools as institutions.

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