Can state education funding support student instruction at religious schools? The First Amendment’s two Religion Clauses require both that the government not establish a religion and that it not abridge the free exercise of religion. A recent federal civil rights complaint highlights the complexity of this issue. In 1985, the Minnesota state legislature passed a law that created the Postsecondary Enrollment Options (PSEO) program. The program was designed to help internally driven high school students get a jump start on their college coursework without having to pay the tuition per credit hour. The law requires the state to authorize community colleges, technical colleges, public universities, and private colleges to participate. The University of Minnesota, Twin Cities says that it receives 1,600 applicants for the program every year.

The program appeared to be running smoothly until the most recent legislative session, when an important amendment was approved to one subsection of the law. Heretofore approved religious private colleges became ineligible for the program if they “require a faith statement from a secondary student seeking to enroll in a postsecondary course” or “base any part of the admission decision on a student’s race, creed, ethnicity, disability, gender, or sexual orientation or religious beliefs or affiliations.” The Becket Fund for Religious Liberty brought a lawsuit against the state of Minnesota on behalf of two families whose high school-age children wished to take dual enrollment courses at two Christian colleges, Crown College and University of Northwestern – St. Paul. According to the complaint, “during meetings of the Senate Committee on Education Policy, members of the committee stated clearly their intent to exclude religious schools from receiving public dollars.”

The amendment may have initially withstood a constitutional challenge had it been enacted before this decade’s two important free exercise of religion Supreme Court cases. Then, the state would have argued that a case from 2004 called Locke v. Davey should control. In Davey, the Court ruled that a Washington state law prohibiting the use of public scholarship money for “devotional” degree programs (where the matriculant becomes a minister) was constitutional. While noting that Washington’s legislature could have allowed scholarship recipients to use their aid to receive devotional degrees, the Court decided 7 to 2 that their refusal to do so did not violate Davey’s First Amendment rights.

The 2020s have been a different story. In Espinoza v. Montana Department of Revenue, the Supreme Court took up a case brought by a parent who wished to use state scholarship money to attend a private, religious secondary school. The state law permitted parents to use the money for their child’s attendance at any school in the state, parochial, private, charter, or public. The Montana Supreme Court ruled against the constitutionality of the state law, deciding that it violated the “no-aid” clause of Montana’s state constitution. The U.S. Supreme Court decided in a 5-4 vote that the application of this state constitution clause triggered strict scrutiny review because it denied access to religious schools purely because of their religious nature.

The other relevant case is Carson v. Makin. There, a group of Maine parents challenged the state’s unusual scheme of funding public education. In Maine, there are 260 school administrative units, none of which is obligated to maintain a secondary school (at the time of litigation, 143 did not). Units without a secondary school may either decide to contract with another public school or approved private school for students residing in their unit, or pay the tuition at the public school or approved private school of the parent’s choice at which the student is accepted. The law allowed only nonsectarian private schools to be approved. The lower federal courts ruled in favor of the constitutionality of the state scheme, but the Supreme Court narrowly ruled (5-4 again) that the “nonsectarian” requirement violated the Free Exercise Clause.

These cases, along with the related Trinity Lutheran Church of Columbia, Inc. v. Comer (which, like Makin and Espinoza was written by Chief Justice Roberts) make clear that governmental programs designed for the general public’s benefit cannot discriminate against religious institutions because of their religious character. That explains why the U.S. District Court issued a preliminary injunction on June 14 barring enforcement of the PSEO amendment. The plaintiffs don’t intend to stop there; Becket attorney Diana Thomson said, “The next step is for the court to strike down this ban for good.” Legislatures in other states with PSEO programs, like Washington, Ohio, and Florida, are now on alert.


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