An Overview of Religious Freedom in Educational Institutions: From the 1960s to Now

By Kaitlyn Carannante — January 28, 2022

The debate on how religion fits into educational institutions has been a long and messy one. In the 1960s, the courts made the first ruling against religion in public schools by prohibiting the use of the Bible and time for prayer in the Engel v. Vitale case. The presence of Bibles and prayer in public schools dates back to when public schools were institutionalized in the 1820s (Lynch, The Edvocate). The issue, however, with allowing these practices was that America was becoming more diverse religiously and not all religions could be taught in every public school. If public schools were to continue only teaching one religion it would be viewed as an infringement on other religious followers’ First Amendment rights. Parents did have an alternative, though: if a parent wished for their children to continue learning about religion in school, they could send them to a private religious school. Today some states give tuition vouchers that allow parents to choose where their children will attend school, but many states do not allow the money to go towards sectarian schools.

In 2002, the city of Cleveland, Ohio, implemented a voucher program that allowed access to sectarian schools. Multiple demographic groups opposed this program, and the American Civil Liberties Union and others took them to court. The Supreme Court ruled in favor of the voucher program in Zelman v. Simmons-Harris. Chief Justice Rehnquist stated that the program was "entirely neutral with respect to religion," permitting genuine choice among options public and private, secular and religious.

In 2020, a similar issue arose. Kendra Espinoza, a mother in Montana, registered her students for a scholarship to attend a Christian school. Shortly after the scholarship program was created, the state limited eligible schools to nonsectarian institutions, citing a provision of the state constitution that prohibits "direct or indirect" public funding of religiously affiliated educational programs (Espinoza v. Montana Dept. of Revenue). The Supreme Court decided in a 5-4 decision that the program was acceptable, citing the Free Exercise Clause, which “protects religious observers against unequal treatment” and laws imposing special disabilities based on religious status.

Today, a similar issue has arisen in Maine, where 260 districts lack their own high schools. The Maine government created a tuition assistance program for private or out-of-district public schools. Three families—the Carsons, Gillises, and Nelsons—chose private sectarian schools, which were denied tuition assistance due to their religious affiliation. They filed a lawsuit claiming a violation of constitutional rights.

Initially, the Maine Department of Education dismissed their complaint for lack of standing. The district court granted judgment to the commissioner and denied it to the plaintiffs (Ballotpedia). The families appealed to the U.S. Circuit Court of Appeals for the First Circuit. Shortly after their oral arguments, the Supreme Court heard arguments for the 2020 Espinoza case, which sided in favor of allowing scholarships to sectarian schools. The Circuit Court affirmed Maine’s decision, stating the assistance program did not transgress the Free Exercise Clause, the Establishment Clause, or other federal provisions (Carson v. Makin). On July 2, 2021, the Supreme Court granted certiorari to hear oral arguments on December 8th.

In my opinion, the Court is likely to rule in favor of the parents. Past decisions, particularly in Espinoza v. Montana Dept. of Revenue, support the idea that limiting school choice violates the Free Exercise Clause. With the current Court composition nearly identical to Espinoza, it seems probable that the decision will pass similarly.

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