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.

9th Circuit: California IDEA Rules Violate Free Exercise Clause

In Loffman v, California Department of Education, (9th Cir., Oct. 28, 2024), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's dismissal of a suit by the parents of a special needs child that challenges as a violation of the Free Exercise and Equal Protection Clauses a portion of California's rules implementing the federal Individuals With Disabilities Education Act (IDEA). In California, a private school may be certified as a NPS (non-public school offering special education programs) so long as the school is non-sectarian. When a local educational agency refers a child to an NPS, the state pays the child's full tuition there. However, religiously affiliated schools may not be certified as NPS's even if the curriculum offered to special needs children is secular. Here, plaintiffs wanted to send their children to an Orthodox Jewish school but obtain the benefits available from an NPS. The 9th Circuit said in part:

 ... [A]ny religiously affiliated school seeking to enter into an NPS contract in California must choose whether to maintain its religious affiliation or to serve as an NPS eligible for consideration ... in determining whether it may be in the best position to provide an IEP [individualized education program] for an individual child.  

Religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified solely because they are “owned, operated, controlled by, or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility.”...

As we have previously recognized, a statutory scheme that requires a family to “forgo a sectarian education . . . in order to receive” special education benefits otherwise available in a private school setting imposes a “burden on their free exercise rights.”  ...

Parent Plaintiffs have plausibly alleged “that a government entity has burdened [their] sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable,’” so the focus “shifts to the defendant” to show that the challenged action survives strict scrutiny....

[E]ven if the State Appellee could demonstrate a compelling interest in neutrality here, it has failed to demonstrate that the nonsectarian requirement is narrowly tailored to serve that interest.  Thus, we conclude that the State Appellee fails to demonstrate that the nonsectarian requirement satisfies strict scrutiny.

National Catholic Register reports on the decision.

South Carolina Supreme Court: State Scholarship Program for Private School Students Violates State Constitution

 In Edison v. South Carolina Department of Education, (SC Sup. Ct., Sept. 11, 2024), the South Carolina Supreme Court in a 3-2 decision held that the state's Education Scholarship Trust Fund Act violates the state constitution insofar as it authorizes use of ESTF funds to pay tuition and fees to private educational institutions.  Article XI, Sec. 4 of the South Carolina Constitution provides:

No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.

The court said in part:

A parent who chooses to use a scholarship to pay their child's private school tuition is undoubtedly using public funds to provide a direct benefit to the private school....  After we clear away the window dressing, we can see the Act funnels public funds to the direct benefit of private schools.  This is what our constitution forbids.  We conclude Petitioners have carried their burden of proving beyond a reasonable doubt the portion of the Act that allows tuition payments from public funds for the direct benefit of private educational institutions violates Article XI, Section 4.

Chief Justice Kittredge, joined by Justice Few, filed a dissenting opinion, saying in part:

Under the South Carolina Constitution, the use of public funds for the direct benefit of a private school is impermissible; the use of public funds for the indirect benefit of a private school is entirely permissible....

In my view, ... the structure and operation of the ESTF Act provide an indirect benefit to schools of the families' choice—both private and public alike. Nonetheless, the majority opinion today defines the phrase "direct benefit" so broadly that it swallows any possible meaning of "indirect benefit" in the process.

AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

De Facto Exclusion of Catholic Schools From Tuition Grant Program Through Antidiscrimination Law Survives Strict Scrutiny

In St. Dominic Academy v. Makin, (D ME, Aug. 8, 2024), a Maine federal district court, in a 75-page opinion, refused to preliminarily enjoin enforcement of Maine's educational and employment antidiscrimination laws in a suit brought by a Catholic diocese, a Catholic school and a Catholic family. After the U.S. Supreme Court held that Maine could not exclude parochial schools from participating in its program that pays tuition for certain out-of-district students, the legislature amended state law to provide that schools receiving state funds could not discriminate on the basis of religion or gender identity. This had the effect of excluding Catholic schools. Plaintiffs contend that this violates their free exercise rights.

The court concluded that the statute must meet strict scrutiny review because it is not a generally applicable law.  However, the court found that the statute survives struct scrutiny, saying in part:

 As a general matter, Maine’s asserted interest in eliminating discrimination within publicly funded institutions is compelling....

Furthermore, all the challenged provisions are written to prohibit only discriminatory conduct.  Under the provisions, “St. Dominic would still be free to conduct morning prayers however it wants, teach from a Catholic perspective, and promote Catholicism to the exclusion of all other religions.”... While the Plaintiffs put forth a number of policies and practices that arguably violate the challenged provisions, at this early stage—no state court has interpreted Chapter 366—it is not sufficiently clear the Act would reach any conduct that the state does not consider discriminatory.... 

Accordingly, the Court concludes that Chapter 366 survives strict scrutiny.  In reaching this result, the Court is mindful of the Supreme Court’s admonition that a “law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” ...  However, “rare” does not mean “never.”  Based on the record before it at this preliminary stage, the Court determines that the weighty interest advanced by the Defendants and the tailoring of Chapter 366 to fit that interest support a determination that Chapter 366 is likely to survive strict scrutiny....

In reaching its conclusions, the Court has discussed and decided the difficult constitutional questions presented.  At the same time, the Court recognizes that this case poses novel constitutional issues and ... the Court has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling.

Arizona Governor Vetoes Bill That Would Have Required Transgender Individuals to Use Alternate Single Occupancy Showers in Public Schools

On April 23, Arizona Governor Katie Hobbs vetoed Arizona Senate bill 1182. (Full text of veto letter.) The bill, titled the "Arizona Accommodations for All Children Act" (full text) would have required public schools to provide single occupancy showers to transgender individuals who are unwilling to use multi-occupancy showers that correspond to their biological sex as determined at birth. In order to obtain the accommodation of a single occupancy shower, the individual would have been required to make a written request and to furnish satisfactory evidence of the person's sex. If that accommodation is refused, the person would have a cause of action against the public school. Conversely, any person who encounters a person of the opposite sex in a multi-occupancy shower room also has a cause of action against the school if a school employee or administrator gave the person permission to use the shower. In either case, the plaintiff could recover for psychological, emotional and physical harm.

Court Upholds Maine's Law Barring LGBTQ Discrimination by Christian School Receiving State Funds

In Crosspoint Church v. Maikin, (D ME, Feb. 27, 2024), a Maine federal district court refused to enjoin application of the state's educational antidiscrimination laws against a private Christian school. In 2022, the U.S. Supreme Court struck down Maine's exclusion of sectarian schools from its tuition payment program to out-of-district schools when districts do not operate their own public high schools. (See prior posting.) While that litigation was in progress, Maine's legislature amended its civil right laws to now bar schools that receive public funds from discriminating on the basis of sexual orientation or gender identity. In rejecting the school's challenges, the court said in part:

The Court concludes that Crosspoint is not entitled to a preliminary injunction.  With this said, the Court acknowledges that Crosspoint is raising important legal questions.  Despite the plaintiffs’ hard-fought and significant victory at the United States Supreme Court in Carson, the Maine Legislature and the Maine Attorney General have largely deprived Crosspoint and similar religious schools of the fruit of their victory.  Crosspoint essentially argues that the Maine Legislature’s enactment of statutes that prohibit discrimination on the basis of sexual orientation and gender identity is a form of state-enforced, secular religion.  Yet, the Maine Legislature has the authority to define protected classes under its antidiscrimination laws.  The rub comes when the Maine Legislature’s view of the categories of people meriting protected status conflicts with sincerely held beliefs of members of religious communities.  This is a tension as old as the nation itself.  Although it has done its best to set out, analyze, and decide these difficult constitutional issues, the Court also recognizes that this case poses novel constitutional questions and has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling....

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.

South Carolina Legislature Approves School Voucher Bill

 On Tuesday, the South Carolina legislature gave final passage to S0039 (full text) which gives lower income families access to school vouchers of up to $6000 per student through the newly created Education Scholarship Trust Fund. The funds may be used at approved public or private schools for tuition, textbooks, computers and tutoring. In the first year of the program, vouchers will be available to 5,000 students. By the third year this increased to 15,000. The State reports on the legislation.

Christain School Sues Over "Poison Pill" Provisions That Exclude It from Maine's Tuition Payment Program

Suit was filed this week in a Maine federal district court by a Christian school challenging 2021 amendments to Maine's Human Rights Act that operate to exclude the school from participating in Maine's tuition payment program for students from districts without public high schools.  The motion for a preliminary injunction (full text) which was filed along with the complaint in Crosspoint Church v. Makin, (D ME, filed 3/27/2023), focuses on provisions in 5 MRSA §4602 that now require schools that participate in the tuition reimbursement program to comply with the sexual orientation and gender identity non-discrimination provisions. Religious schools that do not receive public funding are exempt from that provision. The law also now provides that "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing." Plaintiff characterizes these provisions as "poison pills" that prevent it from participating in the tuition payment program without violating its religious beliefs after the U.S. Supreme Court in Carson v. Makin upheld the right of sectarian schools to participate. Plaintiff seeks a preliminary injunction based on violations of the Free Exercise, Free Speech and Establishment Clauses. Washington Times reports on the lawsuit.

New Florida Law Expands Eligibility for School Vouchers

Florida Governor Ron DeSantis yesterday signed HB1 (full text) into law. The law expands eligibility for school vouchers which were previously limited to low-income families. Now low-income families have a priority, but others are eligible as well. The House of Representatives Staff Analysis of the Bill says in part:

For decades, Florida has been a national leader in providing high quality education options for its parents and students. In addition to a myriad of public options, Florida offers scholarship programs that allow parents of eligible students to register and attend private schools that may better serve a student’s particular needs or to provide educational options for students with disabilities. These programs primarily consist of the Florida Tax Credit Scholarship (FTC), the Family Empowerment Scholarship for students attending private school (FES-EO), and the Family Empowerment Scholarship for students with disabilities (FES-UA)....

The bill expands eligibility for the FTC and FES-EO scholarships to any student who is a resident of Florida and is eligible to enroll in kindergarten through grade 12 in a public school.... The bill retains the priority for FTC and FES-EO scholarships for those students whose household income does not exceed 185 percent of the federal poverty level (FPL) and creates a second priority for households with income not exceeding 400 percent of the FPL.

Under the bill, each parent of an eligible student will receive an empowerment savings account to choose among a variety of options to customize their child’s K-12 education. The bill expands the scope of authorized uses for scholarships....

News Service of Florida reports on the new law.

Supreme Court Says Maine Cannot Exclude Sectarian Schools From Its Tuition Reimbursement Program

In Carson v. Makin, (Sup. Ct., June 21, 2022), in a 6-3 decision, the U.S. Supreme Court held that Maine's program that pays tuition (up to a statutory limit) to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violates the Free Exercise Clause. The majority opinion by Chief Justice Roberts says in part:

The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise....

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.

Justice Breyer, joined by Justice Kagan and for the most part by Justice Sotomayor, filed a dissenting opinion which says in part:

Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education.... [T]his Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization.... But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put....

Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems.... The Religion Clauses give Maine the ability, and flexibility, to make this choice. 

Justice Sotomayor also filed a dissenting opinion which says in part:

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.... 

If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

CNN reports on the decision.

Suit Challenges Latest Application Of Vermont Town Tuition Program

Suit was filed last week in a Vermont federal district court challenging the manner in which the state administers its Town Tuition Program that provides tuition reimbursement for students from towns that do not have their own public high schools. Reimbursement is available for attendance at private or out-of-district public high schools.  The complaint (full text) in Plaintiff E. W. v. French, (D VT, filed 2/24/2022), alleges that the state's current policy:

requires school districts to collect information on private religious schools' religious activity and to reduce or deny tuition benefits to account for religious schools' "religious worship" or "religious education."

The suit contends that this violates plaintiffs free exercise, free speech, Establishment Clause and due process rights, saying in part:

Defendants have no legitimate interest in enacting a greater separation of Church and State than is provided by the Establishment Clause of the First Amendment to the United States Constitution.

The Town Tuition Program has been the subject of extensive prior litigation. (See prior posting.) ADF issued a press release announcing the filing of the lawsuit.

Public School Districts Challenge Expansion Of Ohio's Voucher Program

Suit was filed yesterday in an Ohio state trial court by five school districts and an organization comprised of dozens more, as well as by parents of school students, challenging the Ohio legislature's recent expansion of the EdChoice voucher program. The complaint (full text) in Columbus City School District v. State of Ohio, (OH Com. Pl., filed 1/4/2022), alleges that the expanded program violates Article VI, Sec. 2 of the Ohio Constitution which calls for creation of "a thorough and efficient system of common schools throughout the State" and provides that "no religious or other sect, or sects, shall ever have any exclusive rights to, or control of, any part of the school funds of this state." The complaint alleges in part:

148. The General Assembly’s continuing efforts to expand the EdChoice Program have been undertaken with full knowledge that these state funds would overwhelmingly benefit parochial schools, at the expense of Ohio’s public school students.

149. These private sectarian institutions will receive exclusive and unfettered control of approximately $250 million of Ohio’s school funding in Fiscal Year 2022....

150. Diverting almost a quarter of a billion dollars of taxpayer funding to the exclusive control of parochial schools violates the framers’ intent in retaining the full text of Article VI, Section 2 to ensure that public education funds would not be used to support religious sects, including parochial schools.

Columbus Dispatch reports on the lawsuit.

Exclusion Of Christian School From Scholarship Program Violated Its Free Speech Rights

In Bethel Ministries, Inc. v. Salmon,(D MD, Dec. 10, 2021), a Maryland federal district court held that the free speech rights of a Christian elementary school were violated when the state disqualified it from participating in a scholarship program for disadvantaged students attending private schools. The school lost its eligibility because its handbook set out a policy inconsistent with sexual orientation non-discrimination provisions. The court held that this amounted to an unconstitutional viewpoint-based condition on the school's ability to receive government funding. The court said in part:

Defendants have failed to put forth any evidence that Bethel’s policy has deterred a single prospective applicant from applying for admission at Bethel, let alone any evidence that Bethel has ever denied admission, expelled, or disciplined a student on the basis of sexual orientation.... Instead ... the record reflects that Defendants focused exclusively on the text of Bethel’s handbook....

The text of Bethel’s policy alone is not evidence of discriminatory conduct; the text of the policy is speech.... [E]xcluding Bethel ... based on the text of its admissions policy alone ... is a regulation of speech, not a regulation of conduct....

Not only was Defendants’ decision to exclude Bethel from BOOST eligibility based on Bethel’s speech, but it was based on the specific viewpoints Bethel chose to express in its admissions policy...

ADF issued a press release announcing the decision.

Transcript and Audio Of Today's Arguments In Carson v. Makin

 Here are links to the transcript and audio of this morning's Supreme Court arguments in Carson v. Makin challenging Maine's exclusion of schools that provide religious instruction from its program that pays high school tuition for students from districts without public high schools. CNN reporting on the arguments said that Justices expressed "deep skepticism" of Maine's exclusion of religious schools. [corrected]

Supreme Court Will Hear Arguments Tomorrow In Maine School Tuition Case

Tomorrow, the U.S. Supreme Court will hear oral arguments in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that call for paying tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Schools that provide religious instruction do not qualify. (See prior posting.) 

The SCOTUSblog case page has links to the briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

Religious Pre-Schools Seek Exemption From Non-Discrimination Laws To Participate In "Build Back Better" Funding

New York Times yesterday reported that Catholic and Orthodox Jewish groups are lobbying hard for changes in President Biden's proposed Build Back Better Act. They seek to have drafters remove language which would apply nondiscrimination provisions to religiously affiliated prekindergarten and child care facilities. The bill as now drafted treats facilities that would accept child care vouchers issued to families as direct recipients of federal funding:

[Present provisions] could bar federal funds from going to programs that refused to hire a gay employee, gave preference to applicants of their faith or failed to renovate their facilities to accommodate disabled students....

The United States Conference of Catholic Bishops and the Orthodox Union ... have made the case to members of Congress that they could not accept money to run preschool or child care programs unless the bill expressly exempts them from anti-discrimination laws, such as Title IX, which protects against discrimination by sex, and the Americans With Disabilities Act, which they argue could require costly upgrades to old buildings, including houses of worship.

Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

Supreme Court Grants Cert. In Maine Case On Tuition Vouchers For Sectarian Schools

The U.S. Supreme Court on Friday granted review in Carson v. Makin, (Docket No. 20-1088, certiorari granted 7/2/2021). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Schools that provide religious instruction do not qualify. (See prior posting.) The SCOTUSblog case page has links to the briefs and other filings in the case.

2nd Circuit: Vermont Town Tuition Program Cannot Exclude Parochial Schools

 In A.H. v. French, (2d Cir., June 2, 2021), the U.S. 2nd Circuit Court of Appeals filed its opinion explaining its Feb. 3, 2021 Order granting a petition for a writ of mandamus.  At issue was Vermont's refusal to allow students attending religious schools to participate in the state's Town Tuition Program. School districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved non-religious private high school. The Second Circuit held that the exclusion of religious high schools from the program violates the First Amendment, saying in part:

Four years ago, the Supreme Court reminded states that it “has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.” Trinity Lutheran Church of Columbia, Inc. v. Comer.... Last June, the Court clarified that this rule does not allow a state to apply a state constitutional prohibition on aid to religion that would “bar[] religious schools from public benefits solely because of the religious character of the schools.” Espinoza v. Mont. Dep't of Revenue.... The Court emphasized that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses”....

Judge Menashi filed a concurring opinion.