School Choice and Funding for Students at Non-Public Schools Lose In 3 States

School choice and state funding for students at non-public schools was unpopular among voters on Tuesday.

Colorado voters defeated a proposed constitutional amendment that would have guaranteed every K-12 child the right to school choice and have guaranteed parents the right to direct the education of their children. The vote was 48.03% in favor and 51.97% opposed.

Kentucky voters defeated a proposal that would have allowed the state legislature to provide state funding for private and parochial schools. The vote was 35.24% in favor and 64.76% opposed.

In Nebraska, voters voted to repeal a statute that provided for funding of scholarships for students at private and parochial elementary and secondary schools. The vote was 57.06% in favor of repeal; 42.94% opposed to repeal.

Ballotpedia has additional information and links to final ballot results.

Ballot Measures to Watch in Tuesday's Elections

Tuesday's elections around the country will feature an unusually large number of ballot measures of particular interest to Religion Clause readers. According to Ballotpedia, there will be eleven proposals on abortion rights:

• Arizona Proposition 139
• Colorado Amendment 79
• Florida Amendment 4
• Maryland Question 1
• Missouri Amendment 3
• Montana CI-128
• Nebraska Initiative 434 and Initiative 439 (competing proposals)
• Nevada Question 6
• New York Proposal 1 (also includes sexual orientation, gender identity and other issues)
• South Dakota Constitutional Amendment G

Voters in three states will cast ballots on repeal of now unenforceable bans on same-sex marriage: California, Colorado, Hawaii. The California proposal would also affirmatively guarantee the right to marry.

Colorado proposal would guarantee the right to school choice and parental control of their children's education. A Kentucky proposal would allow state funding for students in non-public schools. A Nebraska referendum asks voters whether to repeal a state law providing for an educational scholarship program for students in non-public schools.

American United's magazine Church & State discusses Tuesday ballot measures relating to church-state separation that will be presented to voters in eleven states.

Religious College Sues Georgia Seeking Inclusion in State Grant and Scholarship Programs

Yesterday suit was filed in a Georgia federal district court challenging the constitutionality of excluding Luther Rice College and Seminary from state scholarship and grant programs for students attending private colleges. Georgia law excludes schools or colleges of theology or divinity. The complaint (full text) in Luther Rice College and Seminary v. Riley, (ND GA, filed 10/15/2024), alleges in part:

9. Georgia allows other religious schools—including schools with religious missions that offer religious undergraduate degree programs like Luther Rice—to participate in Georgia student aid programs....

11. If Luther Rice did not have a religious mission, offer religious degree programs, and teach all courses from a Christian worldview, its undergraduate students could receive Georgia student aid.

12. So Luther Rice faces a choice between (a) maintaining its religious mission and degree programs and teaching all courses from a Christian worldview, or (b) giving up that religious character and exercise to participate equally with other schools in the State.

13. Putting the school to that choice is unconstitutional....

Plaintiffs allege that the exclusion violates the free exercise and Establishment Clauses, the equal protection clause and plaintiff's free expression rights. ADF issued a press release announcing the filing of the lawsuit.

U.S. Supreme Court Opens New Term with Cert. Denials; Red Mass Yesterday

The U.S. Supreme Court's new term began today. Yesterday in Washington the annual Red Mass marking the opening of the Supreme Court's new term-- hosted by the D.C. Archdiocese and the John Carroll Society-- was held at the Cathedral of St. Matthew the Apostle. (Video of full Red Mass). According to the Washington Post, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett were in attendance.

Today, the Supreme Court issued its typical very lengthy first Order List of the Term, denying review in several hundred cases.  Among them were:

Becerra v. State of Texas, (Docket No. 23-1076, certiorari denied 10/7/2024). In the case, the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas federal district court barring enforcement of a Guidance document on emergency abortion care issued by the Department of Health and Human Services. (See prior posting.) The HHS Guidance to hospitals (and accompanying Letter) stated that the federal Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform certain abortions, even when they violate Texas law, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. AP reports on the denial of review.

Young Israel of Tampa v. Hillsborough Regional Transit, (Docket No. 23-1276, certiorari denied 10/7/2024). In the case, the U.S. 11th Circuit Court of Appeals held unconstitutional a public transit agency's policy on the sale of advertising space on its vehicles and property.  (See prior posting.) The agency prohibited ads that "primarily promote a religious faith or religious organization." Applying this policy, the transit agency rejected an ad from plaintiff promoting a "Chanukah on Ice" event.

Hile v. State of Michigan, (Docket No. 23-1084, certiorari denied 10/7/2024). In the case, the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. (See prior posting.) The Hill reports on the Supreme Court's action.

Catholic Preschools Must Be Able to Conditionally Participate in Colorado Universal Preschool Program

In St. Mary Catholic Parish in Littleton v. Roy, (D CO, June 4, 2024), a Colorado federal district court in a 101-page opinion, held that Colorado cannot exclude from its Universal Preschool Program two Catholic schools that will not enroll LGBTQ children or children from LGBTQ families so long as the state continues to improperly grant an exemption from religious anti-discrimination requirements to faith-based pre-schools that limit their enrollment to members of their own congregations. The court said in part:

Defendants have established a compelling interest in denying an exemption from the sexual-orientation and gender-identity aspects of the equal-opportunity requirement for Plaintiff Preschools specifically....

In sharp contrast to the evidence Defendants presented to establish a compelling interest with respect to the sexual-orientation and gender-identity aspects of the equal-opportunity requirement, Defendants did not offer any evidence relating to discrimination on the basis of religious affiliation....

Defendants enable faith-based providers to effectively discriminate on the basis of religious affiliation in their admission of preschoolers but, at the same time, deny Plaintiff Preschools an explicit exemption from the related aspect of the equal-opportunity requirement. Defendants have provided no compelling interest for their course of conduct....

The application by Defendants ... acting in their official capacities on behalf of the Colorado Department of Early Childhood, of the religious affiliation aspect of the equal-opportunity requirement...violates Plaintiffs’ rights secured by the Free Exercise Clause of the First Amendment to the U.S. Constitution....

The Court immediately and permanently enjoins Defendants ... from requiring, as a condition for participation in the Colorado Universal Preschool Program, that the preschools operated by Plaintiffs St. Mary Catholic Parish ... and St. Bernadette Catholic Parish... agree to provide or provide eligible children an equal opportunity to enroll and receive preschool services regardless of religious affiliation for as long as Defendants allow exceptions from the religious affiliation aspect of the equal-opportunity requirement set out in Colorado Revised Statute § 26.5-4-205(2)(b) and in the Colorado Universal Preschool Program Service Agreement.

Becket Fund issued a press release announcing the decision. 

6th Circuit Rejects Equal Protection Challenge To Michigan Ban On Public Funds for Private and Religious Schools

In Hile v. State of Michigan, (6th Cir., Nov. 6, 2023), the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. Plaintiffs contended that the state constitutional provision was motivated by anti-Catholic bias and based their equal protection claim on the political process doctrine. As articulated by the court:

They claim that because of the amendment, religious persons and schools cannot lobby their state representatives for governmental aid or tuition help without first amending the state constitution, which they argue disadvantages them in the political process.

The court first expressed doubt about the continued viability of the political process doctrine, and particularly whether a political process claim can be based on religious discrimination.  The court went on to hold that regardless of that, a 2000 election in which voters reauthorized the 1970 Amendment purged the provision of any religious bias that was present in the 1970 vote.

Justice Murphy dissented, contending that plaintiffs' clam should be dismissed without prejudice for lack of plaintiffs' standing.

Christian Pre-School May Get State Aid Without Complying With Non-Discrimination Rules Which Violate Its Beliefs

In Darren Patterson Christian Academy v. Roy, (D CO, Oct. 20, 2023), a Colorado federal district court issued a preliminary injunction barring Colorado from excluding a private Christian pre-school from its Univeral Pre-School Program. The state requires participating schools to agree that they will not discriminate on the basis of gender, race, ethnicity, religion, national origin, age, sexual orientation, gender identity, citizenship status, education, disability, socio-economic status, or any other identity.” The court said in part:

... [T]he Department’s non-discrimination policy likely violates Plaintiff’s rights by interfering with the school’s selection of key employees in accordance with its religious convictions under the “ministerial exception.” ...

Second, Plaintiff has the right to expressive association which the State’s hiring rules likely violate.... The freedom to associate with others also includes the freedom not to associate with others if doing so would compromise the associating group’s expression of beliefs....

Third, the Department’s rules also force Plaintiff to choose between adhering to religious beliefs and risking exclusion from the program or complying with the Department’s rules. In the specific context of excluding religious schools from participation in educational benefits programs, the Supreme Court has thrice held that a state may not exclude religious observers from receiving otherwise available educational funding because of a school’s religious status or practice....

Plaintiff seeks to hire only coreligionists, and to continue internal policies related to gender distinctions rooted in religious beliefs. These polices violate the Department’s non-discrimination standards for participating preschools.... The First Amendment forbids imposing such a choice.

Fourth, the State’s rules are likely not neutral and generally applicable..... They allow both categorical and individualized exemptions that would undermine the government asserted interests, and thereby trigger strict scrutiny.... See Fulton v. City ...

Plaintiff is also likely to succeed on the merits of its Free Speech claim, at least to the extent that the state would require Plaintiff and its staff to use a student’s or employee’s preferred pronouns as a condition of participating in the program.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Catholic Schools Sue Over Rules for Inclusion in Colorado's Universal Preschool Funding

Suit was filed this week in a Colorado federal district court by the Catholic Archdiocese of Denver and two Catholic schools challenging the restrictions imposed on participation in Colorado's universal preschool funding program. The complaint (full text) in St. Mary Catholic Parish in Littleton v. Roy, (D CO, filed 8/16/2023) alleges that plaintiffs' free exercise and free speech rights were infringed by conditions that did not allow giving preference to Catholic families. Rules did allow preference for members of the church's congregation, but not for a broader religious preference. The complaint also alleged that the program's non-discrimination requirements prevent Catholic schools from requiring teachers. administrators and staff to abide by Catholic teachings on marriage, gender and sexuality; from considering whether a student or family has identified as LGBTQ; and from assigning dress requirements, pronoun usage and restroom use on the basis of biological sex. Becket issued a press release announcing the filing of the lawsuit.

7th Circuit: Parties Cannot Force A Constitutional Ruling On School Aid By Rejecting Statutory Alternative

In St. Augustine School v. Underly, (7th Cir., Aug. 14, 2023), is the latest installment in a case that arose in 2015 and has been litigated up and down the federal and Wisconsin state court system ever since. A Wisconsin statute provides transportation benefits for private religious schools, but only for one school from a single organizational entity in each attendance district.  At issue in this case is whether two Catholic schools in the same attendance district (one billing itself as a "Traditional Catholic School") were sufficiently linked that only one of them could receive the transportation assistance. 

The state Superintendent had concluded that St. Augustine School could not receive benefits because another Catholic school in its attendance district was already getting them. After receiving guidance from the Wisconsin Supreme Court, in December 2021 the U.S. 7th Circuit held that the Superintendent violated Wisconsin statutory law in denying transportation benefits to St. Augustine School, and so remanded the case to the district court for it to impose a remedy. (See prior posting.) Plaintiffs, however, were unhappy because they wished to obtain a ruling on the federal constitutional issues involved, so they made no argument for damages under state law.  The district court thus only issued a declaratory judgment in favor of St. Augustine, denying an injunction and damages. Now on appeal of that decision, the 7th Circuit said in part:

The remaining question is what to do in light of the fact that the Forros unambiguously waived their right to relief under their state-law theories. If by so doing they hoped to force us to reach the federal theories, they were mistaken. We will not allow ourselves to be manipulated into constitutional adjudication in this manner; parties do not have the right to compel a court to write what would essentially be an advisory opinion on a theory that it did not need to reach. St. Augustine IV provided plaintiffs with a clear path to recovery that they chose to forego. Litigants are held to their choices, even when the consequences are harsh. We accordingly see no error in the district court’s decision to treat their requests for damages and injunctive relief under state law as waived and to issue only a declaratory judgment....

Judge Ripple dissented, arguing that the court should reach the federal constitutional issues, saying in part:

As this case has traveled its circuitous path, a regrettable analytical fog has progressively obscured the good faith and thoughtful attempts of all actors, judges and lawyers, to resolve this case. Today, in my view, despite its best efforts, the majority, impeded by this fog, further obscures the matter by drawing the wrong conclusions from this muddied procedural history and, in the process, by departing from the mandate of the Supreme Court of the United States dated July 2, 2020. I respectfully dissent.

Christian Pre-School Challenges Exclusion from Colorado State Aid Program

Suit was filed this week in a Colorado federal district court challenging requirements that Colorado has imposed on pre-schools in order for them to participate and receive funding in the state's universal pre-school program. The complaint (full text) in Darren Patterson Christian Academy v. Roy, (D CO, filed 6/20/2023), alleges in part:

9.... [T]he Colorado Department of Early Childhood ... is requiring religious preschools like Darren Patterson Christian Academy to forgo their religious character, beliefs, and exercise to participate in UPK.

10. The Department does so through two provisions that prohibit discrimination against any person based on religion, sexual orientation, or gender identity.

11. So even though the school welcomes all families and children, these provisions would force it to hire employees who do not share its faith and to alter internal rules and policies that are based on the school’s religious beliefs about sexuality and gender, including those that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips....

Plaintiff contends that the requirements violate its rights under the federal Constitiuion's Free Exercise, Free Speech and Equal Protection Clauses. ADF issued a press release announcing the filing of the lawsuit.

Maine Sued Over New Limits On Religious Schools In Tuition Payment Program

 On Tuesday, a Catholic school in Maine and parents who would like to send their children to that school under Maine's tuition payment program for students from districts without public high schools filed suit in a Maine federal district court challenging new restrictions which the Maine legislature imposed on schools participating in the tuition payment program. The complaint (full text) in St. Dominic Academy v. Makin, (D ME, filed 6/13/2023), contends that the legislature enacted the new provisions to exclude religious schools after the U.S. Supreme Court in Carson v. Makin invalidated a requirement that participating schools be nonsectarian. The complaint explains: 

Among other things, Maine:

• Imposed a new religious neutrality requirement on schools, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing”;

• Imposed a new religious nondiscrimination requirement on schools; and

• Removed the religious exemption that had previously allowed religious (but “nonsectarian”) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments....

Becket issued a press release announcing the filing of the lawsuit.

Oklahoma Passes School Choice Tax Credit Law

Last Friday the Oklahoma legislature completed passage and sent to the governor for his signature HB1934, the Oklahoma Parental Choice Tax Credit Act (full text). The bill creates a tax credit against Oklahoma state income tax for tuition and fees paid for private school education. The credit varies from $5000 to $7500 depending on the household income.  It also provides a $1000 tax credit for home school expenses. The bill imposes annual caps on the amount of credits the state will recognize, which increases from $150 million to $250 million in 2026. Governor Kevin Stitt issued a press release celebrating the legislature's passage of the law.

Suit Challenges California's Exclusion of Religious Schools from Funding for Students With Disabilities

Suit was filed yesterday in a California federal district court by six Jewish parents and two Orthodox Jewish day schools challenging the exclusion of sectarian schools from receiving funds made available to California under the Individuals with Disabilities Education Act. The complaint (full text) in Loffman v. California Department of Education, (CD CA, filed 3/13/2023), alleges in part:

12. Defendants’ administration and implementation of California law excludes Plaintiffs from the generally available public funding necessary to provide an education to students with disabilities.

13. Plaintiffs merely seek to educate and care for children with disabilities and practice their Jewish faith on an equal basis with other California citizens. 

14. As the Supreme Court recently held, they are entitled to equal treatment because “religious schools and the families whose children attend them . . . ‘are members of the community too.’” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2262 (2020). Excluding Plaintiffs from government programs—for no other reason than the fact that they are  religious—is “odious to our Constitution and cannot stand.”

Becket issued a press release announcing the filing of the lawsuit.

Michigan Ban On Use Of State Funds For Private And Religious Schools Upheld

In Hile v. State of Michigan, (WD MI, Sept. 30, 2022), a Michigan federal district court dismissed free exercise and equal protection challenges to a provision in the Michigan Constitution that prohibits the use of state funds, tax benefits or vouchers to aid "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school" or student attendance at such schools. Plaintiffs contend that the provision reflects an anti-religious and anti-Catholic sentiment. Plaintiffs base their challenge on the unavailability of Michigan's Section 529 savings plan for them to use to send their children to private religious schools. The state, however, argues that its Plan is not available for any private high school tuition. Plaintiffs argue that the state is misinterpreting its own legislation.  The court said in part:

The court is satisfied that principles of comity preclude merits consideration of plaintiffs’ First Amendment Challenges because they would require this court to disregard the State’s own interpretation and consistent application of its own tax law, neither of which raises First Amendment concerns. Plaintiffs can take the issue up with Michigan tax authorities in the ordinary administration of the Michigan income tax collection process. But unless and until Michigan changes the interpretation and application of its own tax law, and replaces it with the version Plaintiffs say it should have, there is no First Amendment issue.

The court also rejected plaintiffs' equal protection challenge, saying that it is unwilling to expand the "political process" doctrine. Plaintiffs had argued that by placing the limits on use of state funds in the state Constitution, the state had burdened their ability to seek changes in the law. Bridge Michigan reports on the decision.

School Gets Declaratory Relief Stating That It Should Have Receive State Bus Transportation

In St. Augustine School v. Underly, (ED WI, Sept. 19, 2022), a Wisconsin federal district court, deciding a case on remand from the 7th Circuit, issued a declaratory judgment that state school officials violated Wisconsin law by failing to furnish bus transportation to students attending St. Augustine. At issue was whether St. Augustine School was affiliated with the same denomination as another nearby Catholic school so that only one of the schools would be entitled to bus transportation. The district court said that under the terms of the remand, it could not grant relief on plaintiff's constitutional claims. However, because another appeal was likely, the court did express its opinion on those claims, saying in part:

because the rule as applied by the defendants did not cut St. Augustine off from benefits “for no other reason” than that it was a religious school,... the defendants’ denial of benefits did not violate the Free Exercise Clause.

Appropriation To Christian School Challenged Under South Carolina Constitution

Suit was filed yesterday in a South Carolina state trial court contending that a state budget appropriation of $1.5 million to  Christian Learning Centers of Greenville County violates the provision in South Carolina's constitution that bars the use of public funds "for the direct benefit of any religious or other private educational institution." The complaint (full text) in Parker v. McMaster, (SC Com. Pl., filed 9/20/2022) asserts that the appropriation also contravenes the state constitution's Establishment Clause. The appropriation is aimed at partially funding a $14 million residential school for disadvantaged and at-risk youth. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Parents' Group Says Infrastructure Appropriations To Private Schools Violate Mississippi Constitution

A parents' organization has filed suit in a Mississippi state trial court challenging two Mississippi laws that together appropriate $10 million for grants to private or nonpublic schools for water, sewer and broadband infrastructure projects.  The appropriated funds come from federal Coronavirus State Fiscal Recovery Funds received under the American Rescue Plan. The complaint (full text) in Parents for Public Schools v. Mississippi Department of Finance and Administration, (MS Chancery Ct., filed 6/15/2022), contends that the Mississippi laws violate Section 208 of the Mississippi Constitution that provides:

No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.

The Mississippi ACLU issued a press release announcing the filing of the lawsuit. 

NY School Districts Not Required To Provide Bussing For Religious Schools On Days Public Schools Are Closed

In In the Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Central School District, (NY App., June 2, 2022), a New York state appellate court held that under New York statutory law, school districts are not required (but are permitted) to provide bus transportation to non-public school students on days when those schools are in session but public schools are closed. The suit was brought seeking to require the school district to provide transportation to students in Jewish schools in Kiryas Joel on all days when those schools were open.

Court Says South Carolina's Ban On Aid To Private And Religious Schools Was Not Discriminatory

In Bishop of Charleston v. Adams, (D SC, Feb. 10, 2022), a South Carolina federal district court rejected federal Constitutional free exercise and equal protection challenges to Art. XI, Sec. 4 of the South Carolina Constitution which bars the use of public funds to directly benefit religious or other private educational institutions. The court held that plaintiffs failed to prove that the provision was motivated by either religious or racial discriminatory intent, saying in part:

[A]ccording to Plaintiffs, the 1895 provision was a so-called “Blaine Amendment” motivated by anti-Catholic animus....

Plaintiffs’ own expert, conceded that the national Blaine Amendment movement was not a significant factor in South Carolina.... The similarity in language between South Carolina’s 1895 provision and Blaine Amendments in other States is not enough to make up for Plaintiffs’ failure to demonstrate the existence of pervasive anti-Catholic animus in South Carolina, much less Plaintiffs’ failure to establish any corresponding discriminatory intent.....

Even assuming the 1895 provision was connected in some way to racial or religious prejudice, Plaintiffs’ claim still cannot succeed. The original 1895 provision no longer governs. Instead, the relevant provision was incorporated into the South Carolina Constitution by a vote of the people in 1972....

Plaintiffs mainly argue that racial and religious prejudice from the 1895 provision tainted Section 4, while also arguing that “[t]he ‘historical backdrop’ of the 1972 Amendment really started in 1619, when the first slaves came to America’s shores.”...

But Plaintiffs’ reliance on these other racist or anti-religious views or policies is unavailing because Plaintiffs do not connect them with Section 4’s adoption.

7th Circuit Now Says Wisconsin Wrongly Denied School Bus Aid To Catholic School Students

In St. Augustine School v. Underly, (7th Cir., Dec. 20, 2021), the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district.  Another Catholic school in the same district was already receiving bussing aid.  In 2018, the 7th Circuit rejected 1st Amendment challenges to the law and upheld the state's decision. (See prior posting.)  

Plaintiffs sought review in the U.S. Supreme Court. In 2020, the Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the 7th Circuit in light of its decision in Espinoza v. Montana Department of Revenue. At that point, the 7th Circuit decided to certify to the Wisconsin Supreme Court the state law question of how to determine if two schools are affiliated with the same denomination.  The Wisconsin Supreme Court responded to the certified question in July of this year. (See prior posting.) Applying that guidance, the 7th Circuit this week held:

We conclude that the Superintendent’s decision in the case before us was not justified by neutral and secular considerations, but instead necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic church—because their religious beliefs, practices, or teachings were similar enough....