ON THE DOCKET AGAIN: government funding for religious schools

As early as this summer, two Supreme Court rulings could effectively eviscerate The Establishment Clause, which forbids governments from supporting religion or favoring one religion over another, or religion over non-religion — a potentially monumental pivot point for church schools.

Church Executive has profiled several Supreme Court cases during the last few years where church participation in state funding programs has been challenged on the ground that it violates the First Amendment’s Establishment Clause:

A Supreme Court case to watch

Critical church-state separation issues at play in the Supreme Court

Religious schools get more access to state aid with Supreme Court’s Espinoza v. Montana ruling

With its Carson v. Makin decision, the U.S. Supreme Court has rejected Maine’s ban on providing aid to religious schools

These cases are important to Church Executive’s readers because the availability of government funding (or not) directly affects a church’s ability to carry out its mission and help its community, especially when the local government facing budget pressure cuts back on social services and leaves a vacuum the Church tries to fill.

A few new cases to watch

The Court just agreed to hear a pair of cases in this same line, and they could turn out to be blockbusters if a majority of the Court decides to allow Oklahoma to include parochial schools in its charter school program and receive direct grants.

These two cases have been consolidated and fast-tracked by the Court so they will be argued in late April and decided before the end of the Court’s current term in June or early July. The talking heads are already saying that these cases could well put the finishing touches on the decline and fall of the Establishment Clause, at least in the context of government aid to religious schools.

However, there’s a bit of a wrinkle in that Justice Barrett has recused herself from participating in the decision, raising the possibility of a 4-4 stalemate at the Court, which would leave intact the decision by the Oklahoma Supreme Court forbidding parochial schools from participating in the charter school program.

The Establishment Clause forbids governments from supporting religion or favoring one religion over another, or religion over non-religion, and historically courts have struck down government programs which are seen to “establish” or favor/help religion. That’s the reason school prayer has been disallowed and why direct funding for religious education has been thought to be a non-starter — at least, until recently. 

At the same time, though, courts have regularly invoked the First Amendment’s Free Exercise Clause to prevent government interference with the free exercise of religion, and this concept has been applied to prevent governments from penalizing or discriminating against churches and religious institutions for being religious. That’s one of the reasons government programs helping educational institutions haven’t been allowed to withhold support from church schools which stand on the same footing as non-religious schools and where the support is for non-religious functions such as pupil busing and lunch programs.

There is an obvious tension between the two clauses, particularly in the context of government funding programs where churches look to participate alongside secular institutions: If funds are provided to churches, isn’t that exactly the kind of “establishment” of religion which the First Amendment prohibits? But if churches aren’t allowed to participate, isn’t that penalizing them for being religious and interfering with the free exercise of religion? For the most part, courts have dealt with this tension by saying that churches have to be allowed to participate in government funding programs on the same basis as secular institutions where the participation doesn’t get the government “too directly” or “too closely” involved in the practice of religion — aha, the weasel words that are bound to cause trouble! This was the balancing act the Court came up with to allow a church school to receive government subsidies for playground improvements. And to further muddy the waters, the Supreme Court has increasingly brought to bear another part of the First Amendment, the Free Speech Clause: government interference with free speech is permitted only in the rarest of circumstances, and religious “speech” has to stand on the same footing as non-religious speech. That’s why the Court decided a local school board couldn’t prevent the high school football coach from praying on the 50-yard line after games. Maybe the Court is going to find that religious instruction at a parochial school is a form of speech and can’t be burdened without the most compelling government purpose, and furthering the goals of the Establishment Clause isn’t a good enough purpose?

In a nutshell, the Oklahoma program at issue in these two cases allows parochial schools to participate as charter schools and receive direct government grants. The Oklahoma Supreme Court said the program violates the Establishment Clause (as well as state law) because public funds cannot be used to directly support religious education. The record in these cases might leave the Supreme Court with very little wiggle room unless the decision goes off on some technical or procedural ground.

It’s near-certain that some of the justices will say parochial schools cannot be excluded from the program without violating the Free Exercise Clause when those schools are asking to participate on the same basis as non-religious schools; religious instruction has to be allowed to stand shoulder-to-shoulder with secular instruction. And they will probably also say that an exclusion would abridge the Fourteenth Amendment right to equal treatment under the law.

It’s equally certain that other justices will disagree and say that parochial schools must be turned down because Oklahoma cannot directly support religious education — that’s exactly the kind of government sponsorship which the Establishment Clause prohibits.

The $64 question is where the one or two so-called swing votes will come out and whether there will be five votes for one side or the other, or perhaps there will be a tie 4-4 vote or a mishmash of separate opinions/votes leaving all of us up in the air as to exactly what the “rule” is?

Watch this space…

Church Executive will follow up when the Court hands down its decision, and perhaps earlier than that if there are surprises during oral arguments in late April, or maybe a request from the White House/Solicitor General to participate in the oral argument. Stay tuned.

The Editors

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