Print Commentary: Public Funding for Religious Schools and Institutions
Editor's Note: This article, co-authored by Emma Gomez and Emily Dolgin, is a legal commentary related to M. Emad Jabini's "The Religious Exemption: To What Extent Should Religious Organizations be Exempt from Civil Rights Laws?" in our Fall 2017 issue. We encourage readers interested in more information to refer to our print journal for unabridged legal analysis.
Since the colonial era, immigrants have fled to the United States to escape European religious persecution. Understanding this precarious history and working to establish a nation in which religious liberty would be a fundamental value, the founders included legal doctrines that established religious freedom in the Bill of Rights. The First Amendment of the constitution includes two main clauses that specifically deal with religion. Specifically, the Establishment Clause and the Free Exercise Clause. These both work to limit Congress’ ability to pass legislation that establishes an official religion or give preference to any religious doctrine. The First Amendment itself reads that “Congress shall make no law respecting an establishment or religion, or prohibiting the free exercise thereof.”  This constitutional doctrine works to establish the basis of the separation of church and state. This idea, while not explicitly written into the constitution, is one of the bedrock principles of American democracy. Despite the arguments by school-choice advocates and religious legal scholars, one of the most explicit ways this principle affects the everyday lives of millions of Americans is the public funding of religious schools and institutions.
The United States Supreme Court has been grappling with the legal implications of allowing religious schools to receive public funding since 1930. Examples of these issues include school choice, vouchers, and accessibility to state grant programs. In 1930, Cochran v. Louisiana State Board of Education upheld the constitutionality of a Louisiana statute allowing the expenditure of state funding for textbooks at parochial schools. Eighty-seven years later on June 26th, 2017, the court struck down a Missouri statute barring religious schools from eligibility in receiving state grants in Trinity Lutheran Church v. Comer. In this case, Chief Justice John Roberts delivered an opinion in favor of the church, citing the statutes’ incompatibility with the first amendment, which would permit public goods to an otherwise eligible institution solely on the basis of their religious connection. This is only the most recent development in a string of cases balancing the free exercise clause and the establishment clauses of the constitution.
The separation of church and state was mainly exercised nationally until 1947 in a landmark Supreme Court case called Everson v. Board of Education. Prior to this ruling, the First Amendment’s freedom of religion was mainly imposed upon the federal government; therefore, statutes surrounding religious freedom had not yet existed in large capacities among individual states. In this case, a New Jersey taxpayer filed a case against the local school system.  Specifically, the plaintiff was concerned that the reimbursements offered to parents of students who commuted using the public transportation system violated the constitutional prohibition of state funded support of religion, as the reimbursements were offered to both public and private-religious school students.  While the justices were split over the issue of whether or not the New Jersey law constituted a state sponsorship of religion, they were firm in their holding that the Establishment Clause of the First Amendment should be applied to state authority. This decision set the precedent for a multitude of cases that followed which applied these religious clauses to state law. Since that time, states have even adopted what are called “Blaine Amendments” to their own constitutions, which prohibit public funding of “any school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church, or sectarian denomination.”  This is crucial in order to maintain religious freedom throughout government, for public funding could potentially suggest that the government is pushing one religion upon its citizens, thus contradicting this aspect of American democracy.
Further, there are competing interpretations of the religious freedom clauses of the first amendment and the constitutionality of Blaine Amendments. Those who adopt a loose interpretation of the constitution and the separation of church and state are generally not supporters of Blaine Amendments. In an attempt to integrate religious doctrine into schools and other institutions, these same people argue that the use of Blaine Amendments to exclude religious organizations from receiving state funds violates the neutrality principles in the Free Exercise and Establishment Clauses.  This rationale is the basis for many arguments in favor of school choice. School choice is essentially the ability of parents to leave the public school system in order to enroll their child in a private or religious school. Current Secretary of Education Betsy DeVos has claimed that she is interested in spending millions of federal dollars on school-choice vouchers. School-choice advocates argue that using federal money to afford these vouchers is not a violation of the separation of church and state. Citing cases such as Mitchell V. Helms from 2002, in which a federal program that loaned instructional material to both public and private religious schools was deemed constitutional, proponents argue that these vouchers are no different and have no interference with the First Amendment.
Opponents criticize this approach, arguing that public funds should be reserved for public schools. In the Trinity Lutheran Church v. Comer decision, both Justice Sotomayor and Ginsburg dissented on the grounds that the ruling “weakens the country’s longstanding commitment to a separation of church and state beneficial to both.”  Sotomayor also wrote that in directly requiring that the government provide funds to the church, a dangerous precedent would be set. With this new unconstitutionality of Blaine amendments such as the one at stake in Trinity, First Amendment defenders will be faced with navigating a difficult political landscape in order to push back against the school-choice movement and protect the integrity of the country’s public school system. A recent case decided in the Supreme Court of Nevada, Duncan v. Nevada, offers a useful framework for understanding the unconstitutionality of providing public funds to private religious schools and institutions. The holding in this case was that the funding mechanisms of the state voucher education savings accounts violated the religious clauses of the First Amendment. While not completely ruling out the ability of states to have educational savings accounts, the ruling forbid taxpayer dollars to go into vouchers that would allow students to enter into a private parochial school using that funding. 
The separation of church and state is a fundamental American value that cannot be utterly disregarded. Though recent court decisions indicate a shift in the thinking surrounding this doctrine, First Amendment defenders must be proactive in continuing to advocate on behalf of the separation of church and state to prevent a destabilization of the public school system and all those who benefit from it. Selective private religious schools must not continue benefiting from the tax dollars of those they exclude. If American democracy rests on principles such as religious freedom, then government interference when it comes to public funding for these religious institutions serves as a massive contradiction and threat to the nation’s intrinsic democratic values.
 Staff, LII. "First Amendment." LII / Legal Information Institute. February 05, 2010. Accessed November 22, 2017. https://www.law.cornell.edu/constitution/first_amendment.
 "Cochran v. Louisiana State Board of Education." Education Law. Accessed November 22, 2017. http://usedulaw.com/220-cochran-v-louisiana-state-board-of-education.html.
 "Trinity Lutheran Church of Columbia, Inc. v. Comer." Wikipedia. November 11, 2017. Accessed November 22, 2017. https://en.wikipedia.org/wiki/Trinity_Lutheran_Church_of_Columbia,_Inc._v._Comer.
 "Everson v. Board of Education of the Township of Ewing." Oyez. Accessed November 22, 2017. https://www.oyez.org/cases/1940-1955/330us1.
 "What Is a Blaine Amendment?" Findlaw. Accessed November 22, 2017. http://education.findlaw.com/curriculum-standards-school-funding/what-is-a-blaine-amendment.html.
 "Blaine Amendments and the Unconstitutionality of Excluding Religious Options From School Choice Programs." The Federalist Society. Accessed November 22, 2017. https://fedsoc.org/commentary/publications/blaine-amendments-and-the-unconstitutionality-of-excluding-religious-options-from-school-choice-programs.
 Umpstead, Regina R. "Mitchell v. Helms." Encyclopædia Britannica. May 23, 2016. Accessed November 22, 2017. https://www.britannica.com/topic/Mitchell-v-Helms#ref1204788.
 Mike Kennedy | Sep 29, 2016. "Nevada Supreme Court says state's school choice law is unconstitutional." American School & University. September 30, 2016. Accessed November 22, 2017. http://www.asumag.com/business-finance/nevada-supreme-court-says-states-school-choice-law-unconstitutional.