The Constitutionality of K-12 Private School Choice

Opponents of programs that expand access K-12 private school scholarships often cite the “separation of church and state” as a reason for their opposition. The misinterpretation of this concept often leads to discriminatory—and unconstitutional—attempts to exclude faith-based schools from choice programs. So, what does the Constitution say about this important issue?

One of the largest problems with “separation of church and state” arguments is that those words do not exist in the U.S. Constitution. Instead, we have a single sentence setting forth the First Amendment’s religious protections through the Establishment Clause and Free Exercise Clause. The sentence reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The second half of the sentence is the Free Exercise Clause, which protects the right of Americans to hold religious beliefs and engage in religious activities. The first half of the sentence is the Establishment Clause. This clause prohibits the establishment of a government-sanctioned religion and requires that the government maintain neutrality between different religions.

“Church and state” arguments against choice stem from a misinterpretation of the Establishment Clause under which opponents argue that any monetary or other aid, including incidental aid, to faith-based organizations is strictly forbidden.

This definition does not hold up to even light scrutiny. Governments at a wide variety of levels already provide aid to faith-based institutions—hospitals, universities, preschools, etc.—through Medicaid, Pell Grants, GI Bill tuition assistance, early-childhood grants, and other programs.  Notably, these programs are almost never the subject of exclusionary rules aimed at faith-based schools in the K-12 space.

In truth, courts long ago made clear that government’s primary constitutional responsibility when it comes to religion is to guarantee neutrality. In Zelman v. Simmons-Harris (2002), the U.S. Supreme Court upheld a publicly funded K-12 scholarship program that allowed students to attend faith-based private schools. In that decision, the majority opinion found that:

“This court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”

The U.S. Supreme Court also upheld scholarship tax credit programs, which rely on private funding incentivized by state tax credits, under the Establishment Clause in Arizona Christian School Tuition Organization v. Winn (2011). ACE participates in similar tax credit programs in both Kansas and Louisiana.

Despite (or because of) their clear constitutionality under the U.S. Constitution, some opponents have tried to exclude faith-based schools from choice programs under state constitutional clauses prohibiting state aid to “sectarian” institutions. Called Blaine Amendments, these clauses exist in 38 state constitutions. They are deeply rooted in history of religious discrimination.

The U.S. Supreme Court came close to declaring Blaine Amendments themselves unconstitutional in Trinity Lutheran v. Comer (2017). Now, two new cases in Washington and Maine are also tackling the issue of religious discrimination. And, of course, we expect any day to see a Montana Supreme Court ruling in Espinoza v. Montana Department of Revenue that could trigger a reevaluation of the issue by SCOTUS. ACE has engaged heavily around that case to support the plaintiff parents.

Public debates continue, but the legal argument is largely settled: K-12 private school scholarship programs are constitutional, and they are here to stay.