Alaska Supreme Court Rejects Facial Challenge To Law Allowing State Reimbursement to Home Schoolers For Materials

In State of Alaska, Department of Education & Early Development v. Alexander, (AK Sup. Ct., June 28, 2024), the Alaska Supreme Court refused to hold unconstitutional on its face a state statute that permits school districts to approve an allotment of funds to families to purchase educational materials and services for correspondence study programs from public, private or religious organizations. Plaintiffs contended that the law violates a provision in the Alaska Constitution barring the use of public funds for the direct benefit of any religious or other private educational institution. The Supreme Court said that there are some clearly constitutional applications of the statute, so a facial challenge does not succeed. It added:

Under AS 14.13.300-.310 it is school districts, not the State, that design students’ individual learning plans and authorize particular uses of allotment funds to purchase services and materials in connection with those plans. For this reason, Alexander’s claim that certain uses of allotment funds are unconstitutional cannot proceed without joining a school district that has authorized those uses of allotment funds.

The superior court rejected this argument, which was error. We therefore vacate the court’s denial of the State’s motion to dismiss Alexander’s as-applied challenge and remand for further proceedings. To proceed with an as-applied challenge on remand, Alexander must decide which particular uses of allotments he believes are unconstitutional and then identify and join the school district or districts that authorized that spending.

Alaska Watchman reports on the decision.

Oklahoma Supreme Court Says Creation of Religious Charter School Is Unconstitutional

In Drummond v. Oklahoma Statewide Virtual Charter School Board, (OK Sup, Ct., June 25, 2024), the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The court said in part:

Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. It also constitutes the use of state funds for "the use, benefit, or support of . . . a sectarian institution." The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution....

Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore--all in violation of the Establishment Clause....

... [W]hat St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State's creation and funding of a new religious institution violating the Establishment Clause.12 Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause. Compliance with the Establishment Clause in this case is a compelling governmental interest that satisfies strict scrutiny under other provisions of the First Amendment.

Vice Chief Justice Rowe concurred in part and dissented in part, saying that he concurred only in the conclusion "that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian."

Justice Kuehn dissented, saying in part:

St. Isidore would not become a "state actor" merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.

AP reports on the decision.

Cert. Filed In Challenge To Michigan's Blaine Amendment

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Hile v. State of Michigan, (Sup. Ct., cert. filed 4/4/2024). 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 Lion reports on the petition for review.

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.

Oklahoma Approves U.S.'s First Publicly Funded Religious Charter School

 Politico and the Tulsa World report that yesterday the Oklahoma Statewide Virtual Charter School Board by a vote of 3-2 approved the application of the St. Isidore of Seville Catholic Virtual School to become the country's first publicly-funded religious charter school.  Tulsa World explains that the deciding vote was cast by a Board member newly appointed only last Friday. According to Politico:

The split vote from the Oklahoma Statewide Virtual Charter School Board on Monday caps months of debate over government support for sectarian education that has divided the state’s educators and elected Republicans, including Gov. Kevin Stitt and Attorney General Gentner Drummond.

At issue is whether the requirement in the Oklahoma Constitution and the state's Charter Schools Act that public schools be non-sectarian violates the U.S. Constitution's free exercise clause. (See prior related posting.) Americans United says it is preparing to file suit to challenge the approval.

Suit Seeks Historic Preservation Funds for Churches

Two historic churches have filed suit in a New Jersey federal district court challenging Morris County's exclusion of properties currently used for religious purposes from receiving Historic Preservation funds from the county. Plaintiffs contend that recent U.S. Supreme Court cases invalidate an earlier state Supreme Court decision barring churches from participation in such funding programs. The complaint (full text) in Mendham Methodist Church v. Morris County, New Jersey, (D NJ, filed 4/28/2023), alleges in part:

In 2018 ... the New Jersey Supreme Court concluded that the Religious Aid Clause of the New Jersey Constitution bars state and local governments from providing grants to preserve the architecture of historic churches. Freedom From Religion Found. v. Morris Cnty. Bd. of Chosen Freeholders ...

This is unconstitutional discrimination on the basis of religion: States and local governments that choose to provide a generally available public benefit—such as historic preservation grants—cannot exclude an otherwise-qualified applicant solely because the applicant happens to be a house of worship. See Carson v. Makin, 142 S. Ct. 1987, 1996 (2022).... ;Espinoza v. Mont. Dep’t of Revenue...., 140 S. Ct. 2246, 2262 (2020)....

First Liberty Institute 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.

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.

Lawsuit Claims South Carolina's Blaine Amendment Is Unconstitutional

Suit was filed yesterday in a South Carolina federal district court asking the court to declare that South Carolina's Blaine Amendment (Art. XI, Sec. 4 of the South Carolina Constitution) violates the Equal  Protection and Free Exercise clauses of the U.S. Constitution.  The complaint (full text) in Bishop of Charleston v. Adams, (D SC, filed 4/14/2021) reads in part:

1. In response to the COVID-19 pandemic ravaging our state and nation, the U.S. Congress and South Carolina General Assembly have appropriated substantial sums of public funds to provide relief to local governments, employers, non-profit organizations, schools, and colleges.

2. However, because the South Carolina Constitution contains a provision, a so-called Blaine Amendment, which prohibits public funds from being allocated to private or religious schools, the schools and universities represented by Plaintiffs are legally prohibited from accessing these relief funds.

3. Because the Blaine Amendment was born in bigotry and prejudice based on race and religion, it violates the equal protection and free exercise clauses of the U.S. Constitution, and should no longer bar Plaintiffs’ schools from equal access to these essential relief funds.

The complaint goes on to trace the specific history of the Blaine Amendment in South Carolina.  Plaintiffs in the case are a Catholic diocese that operates 33 schools and an association of private colleges. The Center Square reports on the lawsuit.

Michigan Supreme Court Affirms Narrow Reading of "No-Aid" Clause

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Sup. Ct., Dec. 28, 2020), the Michigan Supreme Court by an evenly divided 3-3 decision affirmed a state Court of Appeals decision holding that there are no state or federal constitutional bars to state reimbursement of private and parochial schools for the costs they incur in complying with state health, safety, and welfare mandates such as state asbestos regulations and vehicle inspections. At issue was whether the no-aid provision of Art. 8 Sec. 2 of the Michigan Constitution only bars aid for educational services, or whether it also covers other reimbursements to non-public schools. Detroit News reports on the decision.

Michigan Appeals Court OK's State Funding For Incidental Costs of Private Schools [UPDATED]

Detroit News and Michigan Radio report on a 2-1 decision yesterday by the Michigan Court of Appeals that allows the state to reimburse private and parochial schools for the cost of complying with state health and safety mandates that are incidental to teaching and providing educational services. At issue is whether a budget appropriation of $2.5 million to reimburse private schools for the cost of fire drills, health requirements and safety inspections violates the state constitution's ban on use of state funds for private schools. Michigan's Blaine Amendment, inserted in the state constitution in 1970, bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior related posting.)

Yesterday's majority opinion from Judges Murphy and Letica ruled:

The Legislature may allocate public funds to reimburse nonpublic schools for actual costs incurred in complying with state health, safety, and welfare laws. But only if the action or performance that must be undertaken in order to comply with a health, safety, or welfare mandate (1) is, at most, merely incidental to teaching and providing educational services to private school students (non-instructional in nature), (2) does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive, and (3) does not involve or result in excessive religious entanglement.

Judge Gleicher dissenting wrote in part:

The public money directly and indirectly assists nonpublic schools in keeping their doors open and meeting their payroll, It is unconstitutional for that simple reason.

When the full text of the opinion becomes available online, this post will be updated with links to it.

UPDATE: Here is the majority opinion and the dissent in Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI App., Oct. 16, 2018).

New Jersey Supreme Court Says More Facts Needed To Decide Religious Capital Grants Challenge

In ACLU of New Jersey v. Hendricks, (NJ Sup. Ct., May 2, 2018), the New Jersey Supreme Court refused to decide on the record before it whether a $10.5 million grant to a Yeshiva and a $635,000 grant to a Christian theological Seminary violate the New Jersey Constitution.  The grants were awarded by the Secretary of Higher Education under  a state program designed to subsidize capital improvement projects at institutions of higher learning. The lower court held that the grants violated the Religious Aid Clause of the state constitution that prohibits using tax monies "for the maintenance of any minister or ministry".  However, the Supreme Court said:

Rather than address a matter of constitutional importance on an insufficiently developed record, the better course is to remand the matter for an evidentiary hearing to bring the relevant factual material into better focus. Among the questions to be explored are ... (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the “maintenance of any minister or ministry”; and (3) the adequacy of promised restrictions, or other curbs, against sectarian use of the grant proceeds at present and into the future....

Accordingly, we will remand to the Secretary for the development of a record in accordance with this opinion.

Asbury Park Press reports on the decision.

Massachusetts Supreme Court Rules On Renovation Grants To Church

Caplan v. Town of Acton, (MA Sup Jud Ct, March 9, 2018), is a challenge under the Massachusetts' constitution's"anti-aid" clause to two historic-resource grants for renovation purposes to an active church.  The Massachusetts Supreme Judicial Court, in a 5-1 opinion, concluded:

the constitutionality of such grants must be evaluated under our three-factor test: a judge must consider whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment. We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny.... 

[W]e conclude that the plaintiffs are likely to succeed on the merits of their claim with respect to the stained glass grant. Although the record before us does not allow us to ascertain whether there is a motivating purpose behind this grant other than historic preservation, its effect is to substantially aid the church in its essential function and, given the explicit religious imagery of the stained glass, it fails to avoid the very risks that the framers of the anti-aid amendment hoped to avoid....

With respect to the Master Plan grant, we conclude that further discovery is needed before a determination should be made as to whether the plaintiffs are likely to succeed on the merits of their claim.  This is in part because, unlike the stained glass grant, the Master Plan grant is far broader in its scope, including not only plans for the renovation of worship space but also plans for the renovation of the Fletcher and Hosmer Houses, which are both private residences....

Justice Kafker, joined by Justice Gaziono filed a concurring opinion.  Justice Cypher filed a dissenting opinion. MassLive reports on the decision.

Vermont Supreme Court: Grant For Church Repairs Is Likely OK

In Taylor v. Town of Cabot, (VT Sup. Ct., Oct. 6, 2017), the Vermont Supreme Court vacated a preliminary injunction that a trial court had issued to block a municipal grant to a historic church for repairs to its building.  The grant came from funds that originated with the federal government but now belonged to the town to use consistent with federal regulations. The court held that plaintiffs have municipal taxpayer standing to challenge the grant under the state constitution's prohibition on compelled support of any place of worship (Chapter I, Article Three). In remanding the case for further proceedings, the court said in part:

The fact that the ultimate recipient of these funds is a church does not itself establish a violation of the Compelled Support Clause; the critical question is whether the funds will support worship. Chittenden Town Sch. Dist., 169 Vt. at 325, 738 A.2d at 550. In fact, denying the UCC secular benefits available to other like organizations might raise concerns under the Free Exercise Clause of the United States Constitution. To meet these concerns, plaintiffs will have to demonstrate that painting the church building and assessing its sills is more like funding devotional training for future clergy, as in Locke, than paying for a new playground surface on church property, as in Trinity Lutheran. Specified repairs to the church building itself admittedly fall somewhere between these two poles. In making their case, plaintiffs must persuade the court either that the Compelled Support Clause categorically precludes the use of public funds to pay for any repairs to a building that serves as a place of worship, without regard to the breadth and neutrality of the program pursuant to which the funding is provided, or that the specific repairs funded under this grant are prohibited. The first proposition is legally questionable; the second is not supported by the record.

Supreme Court Remands School Aid Cases For Reconsideration In Light of Trinity Lutheran Decision

The U.S. Supreme Court yesterday, in light of its decision this week in Trinity Lutheran Church of Columbia, Inc. v. Comer, sent back to the lower courts for reconsideration school aid cases from Colorado and New Mexico.  All the cases remanded involved reliance on state Blaine amendments to invalidate aid to religious schools.  In three consolidated cases from Colorado, the Court granted certiorari, vacated the judgments below, and remanded to the Supreme Court of Colorado for further consideration. The Colorado cases are Doyle v. Taxpayers for Public Education, (Docket No. 15-556), Douglas City School District v. Taxpayers for Public Education,  (Docket No. 15-557), and Colorado State Board of Education v. Taxpayers for Public Education, (Docket No. 15-558). (June 27, 2017 Order List).  In the cases, the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. (See prior posting.)

In New Mexico Association of Nonpublic Schools v. Moses, (Docket No. 15-1409), the Supreme Court also granted certiorari, vacated the judgment and remanded to the Supreme Court of New Mexico for further consideration. In the case, the New Mexico Supreme Court struck down a New Mexico statute that allows the state to lend secular textbooks to private and parochial school students. (See prior posting.)

Georgia Supreme Court Dismisses On Standing Grounds Challenge To Tax Credit Scholarship Program

In Gaddy v. Georgia Department of Revenue, (GA Sup. Ct., June 26, 2017), the Georgia Supreme Court held that plaintiffs in the case lack standing as taxpayers or otherwise to challenge the constitutionality of Georgia's education tax credit program.  Under the program, taxpayers receive a dollar-for-dollar tax credit (up to specified limits) for contributions to student scholarship organizations set up to provide scholarships to students in private schools, both secular and religious.  The suit contended that the program violates the ban in the Georgia Constitution on providing public funds to aid any church, religious denomination or sectarian institution. The suit also alleged violations of other state constitutional and statutory provisions. Atlanta Journal Constitution reports on the decision.

Supreme Court Holds Denial of Playground Resurfacing Grant To Church Violates Free Exercise Clause [UPDATED]

In a 7-2 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today held that the First Amendment free exercise rights of Trinity Lutheran Church were violated when the state of Missouri denied the church's Child Learning Center a grant for resurfacing of its playground with scrap tire material.  The state had relied on Missouri Constitution's Blaine Amendment which prohibits financial assistance directly to any church.

Chief Justice Roberts delivered the opinion of the court which was joined in full by Justices Kennedy, Alito and Kagan.  Justices Thomas and Gorsuch joined Roberts' opinion except for a footnote that attempted to limit the holding to the facts of this case. In his opinion for the Court, Roberts said in part:

In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment.....

The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.....

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character.... Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny....

Justice Thomas filed a separate opinion concurring in part in which Justice Gorsuch joined. Justice Gorsuch filed a separate opinion concurring in part in which Justice Thomas joined.  Both opinions agreed largely with Justice Roberts, but would have been even stronger in support of the free exercise conclusion.

Justice Sotomayor filed a 27-page dissenting opinion which was joined by Justice Ginsburg, saying in part:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.....

The constitutional provisions of thirty-nine States—all but invalidated today—the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside.

Washington Post reports on the decision.

Supreme Court Hears Arguments In Trinity Lutheran; Transcript Available

Today, the U.S. Supreme Court heard oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Comer.  The transcript of the full oral arguments is now available. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." (See prior posting.)  Amy Howe at SCOTUSblog reports on the oral arguments.

SCOTUS Sets Oral Arguments In Trinity Lutheran Case For April 19

The U.S. Supreme Court has set oral argument in Trinity Lutheran Church v. Pauley for April 19. (Argument calendar.) In the case, the 8th Circuit rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.)  The Court granted certiorari in the case over a year ago.  The delay in setting the case for oral argument has led to speculation that the Justices were hoping to hold off hearing the case until a replacement for the late Justice Scalia brought the Court up to its full complement. They may have succeeded since, as reported by The Hill, the Senate Judiciary Committee has now set March 20 as the date for hearings on Judge Neil Gorsuch's nomination to begin. SCOTUSblog's case page has links to all the briefs filed in the case and to commentary on the case.

NJ Court Upholds Historic Preservation Funds To Churches In State Constitutional Challenge

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Super., Jan 9, 2017), a New Jersey trial court upheld a county's allowing churches to be among those receiving grants from the county's Historic Preservation Trust Fund.  Even though Art. 1, Par. 3 of the New Jersey Constitution prohibits the use of tax funds to build or repair any church or place of worship, the court said that the constitutional provision "is not meant to be read literally" but must be read "in conjunction with the State's longstanding tradition of neutrality in church-state relations...." The Daily Record reports on the decision.