The U.S. Supreme Court issued a landmark decision last week, in Espinoza v. Montana Dept. of Revenue (No. 18-1195, decided June 30, 2020, 591 U.S.), that is a boon to parochial schools interested in participating in State school choice funding programs.
The court recognized that once a state decided to provide funding to schools outside of its own public school system then it could not peremptorily disqualify religious schools. Said another way, if a state allowed and funded charter schools or vouchers, then there was generally a constitutional obligation to provide the same funding to religious schools. Indeed, this was despite Justice Stephen Breyer's concern about the foregoing in his dissenting opinion.
The reasoning of the majority opinion of the court is cogent. It analyzed the tension between two aspects of the First Amendment to the Constitution, one known as the Establishment Clause and the other known as the Free Exercise Clause. Both are embodied in the provision of the First Amendment stating: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The provision is applied to the states by virtue of the Fourteenth Amendment. The Establishment Clause is designed to prevent the establishment of a state religion. The Free Exercise Clause is intended to protect religious observance against unequal treatment and against laws that impose special disabilities on the basis of religious status.
The nature and extent of play between these two seemingly conflicting requirements has been the subject of a number of cases. The court noted that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. Thus, as the Supreme Court previously determined, in the Trinity case, churches could be included in playground resurfacing programs. On the other hand, the Supreme Court also previously decided, in the Locke case, that the Washington State government funded scholarship program, which prohibited a student using it to pursue a devotional theology degree that prepared the student for a calling as clergy, did not violate the Free Exercise Clause.
It is important to note that the state scholarship program in the Locke case did not discriminate against the student using the scholarship to attend a religious college, per se, which was permitted. Rather, it was only because the scholarship was specifically used to obtain a particular degree enabling the student to become a pastor that created the Constitutional issue. In essence, specifically funding the training of clergy and, in effect, creating a state-sponsored clergy was deemed inappropriate under the Establishment Clause.
The distinction is critical to understanding the Court's view in the recent Espinoza decision. As the court notes, there was no problem with funding scholarships to be used at pervasively religious schools that incorporated religious instruction throughout their classes.
The court went on to say that, in general, it was also inappropriate to disqualify otherwise eligible schools and students from receiving a public benefit, solely because of their religious character. This kind of state action was, in effect, presumed to violate the Free Exercise Clause, under the strictest scrutiny test adopted by the court. Indeed, as the court also noted, it would take interests of the highest order, meeting the most stringent standards and narrowly tailored in pursuit of only those interests, to have any chance of passing constitutional muster.
School choice is a critical option that parents should have in order properly to bring up children, each in accordance with their needs and strengths. The Bible (Genesis 25:27) alludes to this, as Rav Samson Raphael Hirsch notes, in reference to the upbringing of Jacob and Esau. It records they were raised together, a fateful error. Instead of educating them together at the same school, using the same pedagogical techniques, each child should have received an education best suited to their individual natures and needs (Proverbs 22:6).
The court noted, while a state could decide to fund only its own public school system, nevertheless once it determined to fund other school choice programs, it could not discriminate against a religious one. Thus, whether it's funding of charter schools, vouchers, scholarship programs, tax credit or other benefits, religious elementary and high schools may not premptorily be excluded.
The Supreme Court has enabled a variety of educational choices, including religious-oriented schools, to be genuinely equally protected. Hopefully, state and local governments will fully embrace this opportunity. The federal government can also help by converting its aid to education programs into vouchers that could be used by students to patronize schools of their choice.
It's time to enfranchise students and parents with a full range of options and genuinely fund true educational choice, for the benefit of all parents and students.
Leonard Grunstein, a retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He also founded Project Ezrah and serves on the Board of Revel at Yeshiva University and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal, and other fine publications. To read more of his reports — Click Here Now.
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