There has long been a battle between public schools and their alternatives over students. When school districts are funded on a per capita basis, every student that leaves results in less money for the school district. Since the pandemic, an increasing number of students have left public schools to benefit from the growing number of alternative school models. Parental interest in charter schools, religious schools, and homeschooling cooperatives remains high.
In response to this trend, some governments have taken measures to protect the public schools from their competition. For example, several states have tried to exclude religious schools from funding sources such as the tuition assistance programs in Maine and Montana or Missouri’s playground improvement program. But in each case, the United States Supreme Court struck down the state’s attempt to exclude religious schools. The Court has now made it abundantly clear that states can’t disqualify religious schools from generally available benefits solely because of their religious character.
But states are not the only government entities looking for ways to protect public schools from competition. School districts and municipalities are fighting this battle at the local level—where land use and zoning controls can be used to prevent or restrict the emergence of new schools. Public schools have the edge in that they have established properties and facilities. And they can often count on receiving favorable treatment from City Hall or the local zoning board. But that has often not been the case for charter schools and religious schools.
Recently, the Fordham Institute reported on the ways in which some local governments in Ohio have used dubious zoning and land use decisions to block new charter schools. The report highlighted how some failing school districts have refused to sell their vacant school buildings to new schools. Some have destroyed their buildings to prevent new schools from using them. And some have even adopted deed restrictions to prevent their properties from ever being used by a non-public school in the future. In his book Charter Schools and Their Enemies, Dr. Thomas Sowell documents similar examples in other states. As a result of these tactics, there are vacant school buildings all across the country that are costing taxpayer dollars to maintain and not being used to meet the educational needs of parents and students.
As we have noted here and here, increased demand for religious schools will likely lead to more land use and zoning conflicts as local governments look to keep them out. This is why it is important for religious schools to be aware of the substantial protections they have under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA).
If you are looking to establish a new religious school or expand an existing one, we would be happy to help you understand how RLUIPA may make all the difference. So please contact the experienced religious land use and zoning attorneys of Dalton & Tomich, PLC if you need help defending your school’s right to grow and pursue your mission freely.
