In case after case, the Supreme Court has protected religious schools from various forms of government discrimination. In 2002, the Supreme Court held in Zelman v. Simmons-Harris that the First Amendment does not require the government to exclude religious schools from school-choice programs. It is not an unconstitutional establishment of religion to allow parents to use publicly available funds to help their children attend a religious school. The Supreme Court recognized that the parent’s role in choosing the school removes any concern that the State is somehow establishing religion by providing the parents with tuition assistance.
In 2017, the Supreme Court held in Trinity Lutheran v. Comerthat a state could not exclude religious schools from an otherwise neutral and secular aid program. Five years later, the Supreme Court reiterated in Espinoza v. Montana Department of Revenue that a state cannot exclude religious schools from an otherwise generally available benefit on account of the school’s religious character. As Chief Justice Roberts explained, “a State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
And just last June, in Carson v. Makin, the Supreme Court held yet again that a state could not exclude religious schools from a government-run, tuition assistance program based on the religious character of the schools. Consistent with its 2002 decision in Zelman, the Court reaffirmed that a state program that allows public funds to “flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause” of the First Amendment.
As anticipated, the Supreme Court’s decisions have been a major boon to the growing school-choice movement. Some states, like Oklahoma, are finding new ways to foster school choice and ensure that schools are not discriminated against on account of their religious character. Just this month, an Oklahoma state board granted the Archdiocese of Oklahoma City permission to run what is being touted as the country’s first religious charter school. Even critics of the religious charter school concept acknowledge that if it takes off and passes constitutional muster, religious education in America could experience a major renaissance.
As we have noted here and here, increased enrollment at religious schools will likely lead to land use and zoning cases as religious schools look to expand or relocate to meet the increased demand. At Dalton & Tomich, we are already seeing an increase in the number of religious land use cases involving religious schools. In addition to their constitutional rights, religious school leaders need to be aware of the substantial protections religious schools are afforded under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA). This is exactly why we have written a guide to help religious schools better understand and assert their rights.
If you are looking to establish a new school, or if your religious school is seeking to expand its campus or add on to existing facilities, please contact us so that we can help you better understand RLUIPA and navigate burdensome or discriminatory land use regulations.
