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Public scholarships for private religious schools

| Thursday, January 16, 2020

More than half​ of the Notre Dame incoming class in 2019 did not attend public high school. Catholic high schools, specifically, accounted for 37% of that class. This month, the Supreme Court of the United States will hear argument as to whether it is unconstitutional for a state to invalidate an entire scholarship program on the basis of its possible allocation of public funds to religious educational institutions. It is difficult to overstate the potential impact of this case: the Court might definitively state that religious organizations, including religious schools, cannot be discriminated against in public funding, undermining the various​ state laws to the contrary.

The facts of the case at hand, ​Espinoza v. Montana Department of Revenue,​ are somewhat nuanced but not too complex. The state of Montana implemented a scholarship program administrated by the Montana Department of Revenue. The program would provide tax credits to individuals and organizations who contributed, and use those funds to provide assistance to students wishing to attend private schools. The Department of Revenue decided to exclude religious schools from the options available to students using the scholarships. Multiple families sued, and the Montana Supreme Court considered whether there was a violation of ​Montana’s state constitution,​ which prohibits public funds from reaching “any church, school, academy, seminary, college, university or other literary or scientific institution, controlled in whole or in part by any church, sect or denomination.” The Montana Supreme Court ​decided​ that the entire scholarship program violated this clause, simply by creating the possibility that funds might be used to attend, for example, Catholic high schools.

The question before the United States Supreme Court, now, is whether that decision violates the​ First Amendment​ guarantee of free exercise of religion or the 14th Amendment​ guarantee of equal protection under the law.

Professor Rick Garnett, of Notre Dame Law, wrote an ​article​ with which I largely agree, detailing why the Supreme Court should not allow discrimination on the basis of religion in scholarship funding for religious schools. A few years ago, the Court decided a case called ​Trinity Lutheran Church of Columbia Inc v. Comer,​ ​in which it stated that the exclusion of religious schools from a playground-refurbishing program in Missouri was unconstitutional. That opinion​, by Chief Justice John Roberts, asserted that if such “public welfare” programs simply exclude religious organizations who are otherwise qualified from consideration based solely on their religious nature, the state must provide the interest that compels them, and that interest is subject to “the highest scrutiny”. That is, if a church applies to have their playground refurbished through a state program, and the state excludes them from consideration based on their religious nature, that state better have a very, very good reason for doing so. The reason provided in this case from Missouri was a supposed state interest in maintaining a stricter separation of church and state than is required by the U.S. Constitution. That explanation did not meet the standard of strict scrutiny.

Professor Garnett argues that the same principles which applied in ​Trinity Lutheran​ apply in Espinoza v. Montana Department of Revenue.​ A state cannot exclude religious schools or other institutions from receiving public funds simply because the institution is religious. If a school is qualified in all other ways to receive a new playground or a student on scholarship, its affiliation with a religious establishment should be made an obstacle by the state. That is anti-religious discrimination, plain and simple.

There are two possible complications, one more substantive than the other. First, in Chief Justice Roberts’ opinion in ​Trinity Lutheran​, he added a footnote apparently limiting the opinion to playground-refurbishing specifically. I cannot imagine that there are a plethora of playground-refurbishing lawsuits in the United States, though perhaps I am mistaken; either way, the footnote has been interpreted to severely limit the reach of that opinion. The principles at play with regard to free exercise of religion, however, have nothing to do with playgrounds specifically. One argument might claim that, in Trinity Lutheran,​ the playground was so removed from the religious nature of the school that it was an ‘easy case’, and the educational experience provided by a religious school is closer in kind to the actual operation of a church. I do not think that argument holds much weight, as playing in a playground and learning in a classroom seem to have the same magnitude of religious worship, namely, none at all.

The other complication, which I consider to be the chink in the armor of the arguments of the students in this case, is that the Montana Supreme Court struck down the entire scholarship program in their initial decision. That is, the program which might (or might not) exclude religious schools from receiving scholarship funds is no longer operating. Religious schools are not being discriminated against; they are in the same position as all other private schools in Montana, thanks to the elimination of the program altogether.

The general issue at stake is the extent to which religious institutions should be allowed to receive funding for the services they provide to communities, such as playgrounds and schools. The answer might be that public funding of all such services should be eliminated so as to avoid the issue altogether. That seems to be the Montana Supreme Court’s solution, but I find it entirely unsatisfactory. Instead, the Supreme Court should affirm that religious schools cannot be legally discriminated against on the basis of their religious character.

Vince Mallett is a junior at Notre Dame majoring in philosophy with a minor in constitutional studies. He is proud to hail from Carroll Hall and northern New Jersey. Vince can be reached at [email protected] or @vince_mallett on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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