April 16, 2021

Bruce D. Baker and Preston C. Green III: The Post-Espinoza End Game

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This post from education scholars Baker and Green is actually almost a year old. But it’s still an excellent warning about what steps we are likely to see as private religious schools spread their wings in a post-Espinoza landscape. That single ruling opens the door to changing the face of public education in this country, and private religious schools are chomping at the bit (see, for example, this week’s lawsuit in South Carolina).

Instead of minimizing the impact of the Espinoza case, we should think of this decision as the latest domino to fall on the issue of taxpayer financing of religious schools. For example, in Zelman v. Simmons-Harris, the Supreme Court removed the Constitution as a barrier to voucher funding by ruling that the Establishment Clause permits voucher programs. In Mitchell v. Helms, several Justices questioned the legal impact of state constitutional provisions that imposed greater restrictions on state funding than the U.S. Constitution. But finally in Espinoza, the Court ruled that states could not use these so-called Blaine Amendments to exclude religious schools from voucher programs.

Prior to this latest decision, we explained that states might still take reasonable steps to regulate schools in receipt of public financial support. States can adopt policies that are facially neutral to religion, but still regulate:

  1. discrimination on the basis of sex (including LGBTQ status) or race;
  2. curricular standards and assessments;
  3. employee professional credentials;

And that’s only the first domino

But, what if the next domino falls? And what is that domino? Bethel Christian Academy in Maryland participates in the state’s voucher program and openly opposes homosexuality, same-sex marriage, and transgenderism. The school has also chosen not to adopt a state law-aligned non-discrimination policy. As a result, the state removed the school from the voucher program in 2018. The school has argued that complying with the policy violates their “free exercise” rights. That is, the school, which after Espinoza cannot generally be excluded from participating because it is religious, is arguing further that the state cannot regulate policies and practices of the school derived from religious belief –  even if that school receives state financial assistance. At this point in the litigation, the court has refused to enjoin the enforcement of the regulation.

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