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Courts Have Chance to End Government Hostility Toward Religious Families and Schools

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/Manuel Balce Ceneta

Should students be denied equal access to education funding just because they attend religious schools?

As school children across the nation head back to class, that’s the question America’s courts are facing—including the Supreme Court of the United States.  The decisions they reach will have broad implications for the religious liberty of students and families throughout the country.


American parents take their children’s education seriously. Voters regularly point to education as a very important issue in many state and local elections, and total taxpayer spending on education is over $1 trillion annually.  While the vast majority of children attend public schools, a growing segment find a better educational fit in alternative options, including private schools and home schooling.  

Data indicate about 10 percent of school-aged children attend one of the nation’s nearly 35,000 private schools, and nearly 80 percent of those schools are religiously affiliated. 

But families seeking an alternative educational pathway often face steep financial barriers. Private schools charge tuition, and homeschooling usually requires one parent to take up the teacher’s mantle, thus sacrificing a second potential income.  At the same time, these families must continue paying (frequently heavy) taxes to support schools their children don’t attend.

To equalize this disparate financial impact and to ensure that they are serving the educational needs of all students, more than two dozen states have implemented various forms of education choice programs, from scholarship program tax credits to education grants.  

Unfortunately, some of these programs discriminate against families simply because the school their children attend is religiously affiliated.  


For example, First Liberty joined with the Institute for Justice to challenge a discriminatory Maine law that provides some families with tuition support to send their children to the school of their choice but expressly denies that support to families sending their children to religious schools. The families who filed the lawsuit, which is now on appeal to the U.S. Court of Appeals for the First Circuit, otherwise qualify for Maine’s tuition program.  Such discrimination is both unfair and unconstitutional.

And in Montana, the state Supreme Court ruled recently that the state must exclude students attending religious schools from a tax-credit scholarship program that’s available to everyone else.  The program, started in 2015, provides a modest tax credit for businesses and families who donate to certain scholarship programs.  It is similar to other scholarship tax credit programs in other states and provides much-needed resources to tens of thousands of students.  The U.S. Supreme Court will hear oral arguments in this case, Espinoza v. Montana Department of Revenue, during its next term.  First Liberty Institute will submit a “friend-of-the-court” brief on behalf of one of our clients in support of families seeking to participate in the program.

It should be obvious that singling out religious families and schools for discriminatory treatment violates the First Amendment.  The free exercise clause of the Constitution prohibits such governmental religious hostility.  


Unfortunately, courts haven’t always agreed.  In fact, U.S. Courts of Appeal for the First and Ninth Circuits, along with state Supreme Courts in Montana, Maine, and Vermont, have concluded that government can single out religious schools and families and exclude them from participating in educational choice programs.  However, courts in the Sixth, Seventh, Eighth, and Tenth Circuits, along with the New Mexico Supreme Court, have come to the opposite conclusion.  This confusion is one reason why the Supreme Court’s decision in the Espinoza case will be important for students’ religious liberty. 

A 2017 U.S. Supreme Court ruling gives hope to families who seek to participate in student-aid programs but have been denied because of religious hostility.  In Trinity Lutheran Church v. Comer, the Court determined that government cannot exclude churches from participating in generally available government aid programs simply because they’re religious.  While the case did not present the Court with a question relating to student-aid, the principle and its implication for student aid programs is clear.  

In its recent decision in The American Legion v. American Humanist Association (in which First Liberty Institute and its network attorneys at Jones Day represented the American Legion in defending a century-old World War I memorial), the Supreme Court clarified decades of lower court confusion concerning religious symbols on public land.  Now, with Montana case, it has the opportunity to do the same regarding religious discrimination in student-aid programs.  


For millions of American students, the answer could determine their future.  

Lea Patterson is Counsel at First Liberty Institute, a nationwide religious liberty law firm dedicated to protecting religious liberty for all. Learn more at

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