States must stop discriminating against religious schools


The past 18 months have reminded us that when it comes to educating young people, one size certainly doesn’t fit all. Pluralism and diversity, not uniformity or monopoly, is a successful school enterprise. And, today as yesterday, religious schools play an essential role in the project of preparing the citizens and the leaders of tomorrow.

Unfortunately, Maine state school funding policies ignore these truths. In addition, they violate the First Amendment and recent Supreme Court rulings prohibiting discrimination against religion.

Maine provides tuition assistance for students who live in districts without a public school, unless they wish to attend certain religious schools. Even if a school meets the state’s accreditation and curriculum requirements, if it promotes religious belief or incorporates aspects of religious practice, it is prohibited. This discriminatory rule imposes an unfair choice on parents and children: to give up the wealth of a religious education-school or to forgo financial support otherwise available.

In December, the United States Supreme Court will consider, in a case called Carson vs. Makin, whether Maine’s discriminatory policy violates the First Amendment guarantee of religious freedom.

The state relies on a distinction between religious “status” and religious “use”, arguing that the Constitution allows governments to exclude religious “uses” from public benefits. This alleged distinction appeared in two recent Supreme Court decisions, Columbia Trinity Lutheran Church, Inc. v. Comer (2017), and Espinoza v. Montana Department of Revenue (2020). In Lutheran Trinity, the Supreme Court found that Missouri had violated the First Amendment by refusing to allow a Lutheran preschool to participate in a program that provides waste recycled tires for playgrounds. And in Espinoza, judges rejected Montana’s policy prohibiting religious schools from participating in a scholarship program funded by tax credits. Now in Carson, the Court has the opportunity to clarify and confirm these decisions, and to defend religious freedom and the opportunity for education.

A clear distinction between religious “status” and religious “use” does not make sense, especially in the context of schooling. After all, in many religious traditions faith is embedded in training, learning, education, and development. For many schools, “religious” is not just what they are; that’s also what they do.

The United States Supreme Court is seen in Washington, DC on November 5, 2021.
Daniel SLIM / AFP / Getty Images

This was the argument of three groups representing Catholic, Islamic and Jewish religious traditions – the City Education Partnership, the Council of Islamic Schools in North America (CISNA) and the National Council of Young Israel –made to judges in the Carson Case. These groups operate schools that participate or wish to participate in equitable and non-discriminatory school choice programs. The integration of faith in all aspects of education is at the heart of the religious and educational missions of these schools.

The Partnership for Inner-City Education is a nonprofit organization that operates nine urban Catholic schools in Harlem, the South Bronx and Cleveland. The mission of Partnership Schools is to revive struggling Catholic schools serving financially, spiritually and academically disadvantaged children so that they can provide the academic preparation, values ​​and skills that underserved students need to break cycles of poverty and lead a fulfilling and productive life.

CISNA is a non-profit organization dedicated to its vision of a world in which all students have access to the highest quality Islamic education. It partners with Islamic schools to provide a rigorous accreditation process that guarantees excellence in the academic and Islamic aspects of schools and continued support through resources and professional development.

And the National Council of Young Israel is an organization of Jewish synagogues that provides resources and services to more than 100 synagogues and their 25,000 member families across the United States. The organization was founded to be a bulwark against the declining trend in Jewish educational opportunities in America at the turn of the 20th century. A large majority of Young Israel families send their children to Jewish schools.

The Maine program excludes groups like these from a publicly available benefit because of their religious beliefs. There is no separation between their religious school identities and their educational programs; integrating faith into all aspects of the school is an indispensable part of what it means to be a religious school. As Justice Neil Gorsuch noted in Espinoza v. Montana Department of Revenue, to be religious is to “act on these beliefs externally and publicly”. Excluding religious schools from Maine’s tuition assistance program fundamentally undermines parents’ ability to freely exercise their religious beliefs by limiting their educational options.

Across the country, parents and communities are demanding choices, opportunities and responsibility in education. Any meaningful response to these demands will include genuinely religious schools and support those who choose them. In Carson, judges should reaffirm that the Constitution does not allow governments to discriminate against vital partners in the crucial and common task of educating children.

Richard W. Garnett is Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. Olivia Rodgers is a 2L law student at the Notre Dame Religious Freedom Initiative.

The opinions expressed in this article are those of the authors.


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