Last week I contemplated why we weren’t seeing more permanent private school closures due to COVID-19. Since I wrote that we have seen no more COVID‐connected closures—the last one was announced on July 14—and the count on our tracker remains at 107 schools. Reports from around the country are increasingly pointing to one possible reason for the relative dearth of closures: As more school districts declare that they will open with online‐only or just partially in‐person delivery, private schools are gaining families who want face‐to‐face schooling.
- Too Early: Maybe schools haven’t made final decisions yet and many more closures are coming
- Gaining Students: Maybe revenue hits from donations lost to closed church services, and families suffering economic hardships and having to withdraw, have been offset by new families looking for in‐person, and maybe smaller, schooling
- Off the Radar: Our tracker may be missing closures, especially of smaller, more independent schools
- Paycheck Protection Program: This federal program may have helped to stave off insolvency for many schools
It is possibility number 2 for which we are seeing increasing support. As I linked to last week, we have seen reports from Nevada, California, and Minnesota of parents turning to private schools in search of in‐person education. Since then we have seen reports from New York, Texas, and the Washington, DC area. This is all anecdotal – we don’t have nationally representative data – but it is consistent with the relatively low closure numbers we have been seeing.
Not that COVID-19 hasn’t inflicted damage on private schooling. We have only been able to find long‐term tracking on annual private‐school closures for Catholic schools, but it suggests that this is going to be a tough year, at least for that subset of private schools. The US Conference of Catholic Bishops is predicting that up to 150 Catholic schools could close this year, which would be the highest total since 2012. Our tracker shows 90 Catholic schools closing at least in part due to experienced or anticipated COVID-19 financial problems. Assuming many of those schools would have remained in business absent COVID-19, the virus does appear to be taking a toll on private schools.
COVID-19 is hurting private schools. But perhaps due to new families moving to them, it increasingly appears that the toll will be less punishing than I originally feared.
There is a powerful tendency in education policy to immediately ask about any idea, “will it be equitable,” and condemn anything that looks like it might help wealthier people more than poor. It is a laudable instinct, but condemning parents–even rich ones–who are trying to do what is best for their children is divorced from human reality, and worse, seems geared more toward shaming the wealthy than empowering the poor.
Case in point, the response to the suddenly emerging phenomenon of education “pods,” small groupings of children and a teacher paid for by parents who want in‐person education with minimized COVID-19 risk. A Washington Post report shone a light on this development last week, but more from an “is it fair” than an “interesting approach to dealing with COVID” perspective. Framed the headline, “For parents who can afford it, a solution for fall: Bring the teachers to them.” The Post has since run other pod pieces, featuring the following headlines:
The problem dealt with in the latter: “these new pandemic education pods replicate white flight.”
As lamentable as it is when something exacerbates inequality, it is simply unrealistic to think parents with means will refrain from doing what they think is best for their kids. Heck, it is biologically ingrained. Nor should they be shamed for doing what they can for their children, especially when it comes to matters as important as health and education. They have a responsibility to do what is best.
Our inclination should not be to shame well‐off families, perhaps in hopes they will feel sufficient social pressure not to pursue their plans. Instead, we should empower poorer families to seek out the best for their kids. They, too, are biologically driven to care for their children, and were education funding given to them instead of directly to public schools they could afford to create their own pods.
Nationally, we spend about $13,000 per public‐school student, excluding capital costs. Were families with 10 children to receive that funding and pool it, they could pay a teacher up to $130,000 for the year – more than double the average public‐school teacher’s base salary of about $62,000 and leaving ample money for benefits.
What about a high‐cost place like Washington, DC?
The District of Columbia spends about $24,000 per student in current funds, which would allow a group of 10 to pay $240,000. The average DC public school teacher’s salary is around $78,000.
Our history provides more than ample reason to fixate on equity. But it is government that has driven much of the inequity we have seen, and it has especially dominated education—funding, running, and assigning people to schools—for well more than a century. It is time to do something different than lament the advantages of the wealthy. It is time to empower the poor to do the same things as the rich, by letting them control the funding that is supposed to educate their children.
When the COVID-19 lockdown began in earnest in late March, I started fearing doom for private schools. The economic consequences of near‐total lockdown seemed likely to be devastating, in‐turn clobbering private schools that, unlike public schools, do not have a claim on taxpayer money, and would see charitable dollars and the ability of families to pay dwindle. I thought we could potentially see shutterings reach the thousand mark. But with “only” 107 institutions on our tracker of private schools that will permanently close at least in part due to the COVID-19 financial situation, we are far shy of the worst‐case scenario. Why?
I offer the following four possibilities, but would be interested to hear others:
- Too Early: Many schools may still be finalizing enrollment and revenue numbers for the coming school year, which may be especially in flux this summer as plans for public schools continue to evolve: all in‐person, online, hybrid? It might be the case that the numbers I feared are coming, just not quite as quickly.
- Gaining Students: Related to uncertain numbers, we are seeing at least anecdotal evidence of increasing interest in private schools as public schools lean toward all online education, at least to start the school year. Maybe the potential loss of some students due to decreased ability to pay is being offset, or more than offset, by an influx of new students.
- Off the Radar: Our tracker may simply be missing closures. We discover closures primarily through media reports, though people are welcome to email email@example.com with announcements, and some folks have. It is possible that some closures, especially of smaller private schools, do not generate media reports. Perhaps one reason Roman Catholic schools make up such a large share of our closure list—about 84 percent—is that they tend to be part of dioceses, which are relatively large organizations likely to have press offices and to make announcements regarding multiple schools. Smaller, more independent schools may just inform families that they are going out of business.
- Paycheck Protection Program: This program, passed early in the federal coronavirus response, made up to $659 billion available to small businesses, including nonprofits, in the form of forgivable loans. The goal was to help recipients retain employees as well as handle expenses related to buildings. Many churches and independent private schools applied—including some wealthy ones—which may have helped to stave off insolvency for schools on the brink.
We need myriad options for families and teachers who are facing diverse health and educational priorities, which makes the lower‐then‐expected private school closure numbers a welcome bit of news. But we are far from out of the proverbial woods for private schools, and the right thing to do has always been to have money follow students, not fund government schools. COVID-19 only makes that policy change even more urgent.
The First Amendment’s free exercise clause guarantees churches the autonomy needed to pursue their religious mission. That requires solid protections of substance and not merely form, a 7–2 majority of the Supreme Court confirmed in today’s twin cases on church school employment and employment discrimination (Our Lady of Guadalupe School v. Morrissey‐Berru, combined with St. James School v. Biel). Writing for seven Justices, Justice Samuel Alito found that a church is entitled to decide for itself how to fill classroom jobs that instruct children in religious tenets and lead children in prayer. Justices Clarence Thomas and Neil Gorsuch would have gone further and required courts to defer to a religious organization’s sincere, good faith determination that a job exercises the functions captured by the imperfect term “ministerial.”
While not unanimous as had been the 2012 Hosanna‐Tabor case, which it helps clarify, today’s 7–2 result confirms that the Supreme Court takes seriously the protections of the Free Exercise clause, even when they come into conflict with the powerful force that is employment discrimination law. That should help quell fears (which I discussed recently) that the Court is stepping back from a robust commitment to religious liberty.
This morning, the Supreme Court issued its decision in Espinoza v. Montana Department of Revenue, striking down Montana’s state constitutional Blaine Amendment, which forbids state aid to “any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” The decision overrules a Montana Supreme Court decision striking down a state school choice program that had provided tax credits on an equal basis to students attending both religious and secular private schools. The ruling is an important victory for religious freedom, specifically the principle that government policy should not discriminate between private organizations and citizens on the basis of religion.
The decision is a close 5–4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting. To my mind, that is unfortunate. Striking down blatant government discrimination on the basis of religion should not be so controversial and divisive.
While there are a number of complexities in the case, Chief Justice John Roberts’ majority opinion effectively captures the main issue:
The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” Trinity Lutheran….Those “basic principle[s]” have long guided this Court….
Most recently, Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny….”
Montana’s no‐aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. This is apparent from the plain text. The provision bars aid to any school “controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6(1). The provision’s title—“Aid prohibited to sectarian schools”—confirms that the provision singles out schools based on their religious character….
When otherwise eligible recipients are disqualified from a public benefit “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran…
The Blaine Amendment doesn’t exclude only those religious schools which fail to meet neutral educational standards, or have some other kind of flaw. They are barred from receiving state assistance for which similar secular institutions are eligible. That is clearly discrimination on the basis of religion, if anything is. The opinion goes on to explain that the Blaine Amendment cannot possibly survive strict scrutiny, as there is no narrowly tailored state interest that can justify a categorical ban on aid to religious schools, while simultaneously permitting aid to otherwise similar secular ones.
The dissenting justices argue that state governments must be free to discriminate against religious institutions in at least some instances, in order to avoid Establishment Clause programs. Here, for example, is a relevant passage from Justice Sotomayor’s dissent:
Contra the Court’s current approach, our free exercise precedents had long granted the government “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws…..”
Here, a State may refuse to extend certain aid programs to religious entities when doing so avoids “historic and substantial” antiestablishment concerns. Locke [v. Davey], 540 U. S., at 725…. Indeed, one of the concurrences lauds petitioners’ spiritual pursuit, acknowledging that they seek state funds for manifestly religious purposes like “teach[ing] religion” so that petitioners may “outwardly and publicly” live out their religious tenets. Ante, at 3 (opinion of GORSUCH, J.). But those deeply religious goals confirm why Montana may properly decline to subsidize religious education. Involvement in such spiritual matters implicates both the Establishment Clause, see Cutter, 544 U. S., at 714, and the free exercise rights of taxpayers, “denying them the chance to decide for themselves whether and how to fund religion…”
This is a longstanding argument offered by defenders of discriminatory exclusion of religious institutions from government education programs. But it is dangerously flawed. If there is a violation of the Establishment Clause or the Free Exercise Clause any time the state provides assistance that helps religious people engage in “spiritual pursuits,” then the same argument can be used to justify excluding religious institutions from virtually any government service or tax credit. If the government provides police and fire department protection to religious institutions on the same basis as secular ones, that facilitates worshippers’ “spiritual pursuits” and denies taxpayers ” the chance to decide for themselves whether and how to fund religion.” The same point applies if the government gives tax exemptions to religious charities on the same basis as secular ones (as both the federal and state governments routinely do).
You don’t have to adopt many conservatives’ unduly narrow interpretation of the Establishment Clause (which they interpret as barring only the establishment of an official church or as directly coercing people to take part in its services) to recognize that nondiscrimination is not establishment. Even if government endorsement of religion also qualifies as an “establishment,” merely treating religious institutions the same as secular ones does not count as such an endorsement. For example, no one claims that the government endorses religion when it gives legal effect to religious wedding ceremonies on the same basis as purely secular ones.
There is an in‐depth debate between the majority and the dissenters over whether Espinoza can be distinguished from the Court’s 2004 decision in Locke v. Davey, which upheld a state law denying scholarships to students pursuing degrees in “devotional theology” for the purpose of studying for the ministry. I think Roberts has the better of this debate, but I will not try to cover it in detail here. I would note, however, that there is an obvious difference between refusing to fund studies for a degree devoted to a specific subject matter, and categorically denying funding to all students attending religious institutions, even if they meet the curricular standards required for secular schools to be eligible for assistance.
Funding of education necessarily requires some criteria for determining which subjects have to be taught in order to qualify. Otherwise, the state would end up subsidizing attendance at institutions that only teach material that is completely irrelevant to the state’s educational objectives—for example a school whose curriculum consists solely of training to repair obsolete typewriters. Imposing neutral curricular requirements in a scholarship program is different from categorically barring participation by religious schools, even if they cover the subjects required by the state just as well as secular ones do.
Two of the dissenters—and many of Montana’s supporters in the legal academy—argue that there is no actual discrimination on the basis of religion here, because the net effect of the Montana Supreme Court’s ruling enforcing the Blaine Amendment was to invalidate the entire school choice program, thereby denying aid to both religious and secular private schools. For example, Justice Ruth Bader Ginsburg argues that Montana simply “put all private school parents in the same boat.“Roberts has a good response to that point:
The Montana Legislature created the scholarship program; the Legislature never chose to end it, for policy or other reasons. The program was eliminated by a court, and not based on some innocuous principle of state law. Rather, the Montana Supreme Court invalidated the program pursuant to a state law provision that expressly discriminates on the basis of religious status. The Court applied that provision to hold that religious schools were barred from participating in the program. Then, seeing no other “mechanism” to make absolutely sure that religious schools received no aid, the court chose to invalidate the entire program….
The final step in this line of reasoning eliminated the program, to the detriment of religious and non‐religious schools alike. But the Court’s error of federal law occurred at the beginning. When the Court was called upon to apply a state law no‐aid provision to exclude religious schools from the program, it was obligated by the Federal Constitution to reject the invitation…. Because the elimination of the program flowed directly from the Montana Supreme Court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision..
Imagine that a state legislature enacted a school choice program similar to Montana’s, and that the state supreme court then struck it down because it violated a provision in the state constitution barring state aid to racially integrated schools. The state could then argue there was no racial discrimination here, because the end result of the ruling was that students attending both segregated and integrated private schools are denied tax credits. Few would deny that the state government would be acting unconstitutionally in such a case, because the denial of tax credits was the result of a provision in state law that explicitly discriminates on the basis of race. The Montana Supreme Court ruling enforcing the Blaine Amendment in Espinoza qualifies as discrimination on the basis of religion, for exactly the same reason.
Montana remains free to deny state assistance to all private schools alike. But it cannot do so on the basis of a state law that requires discrimination on the basis of religion, and thereby leads to the invalidation of tax credit programs that do not themselves discriminate in this way.
Finally, it is worth mentioning the fact that Montana’s original Blaine Amendment was enacted in 1889, as part of a nationwide Blaine Amendment movement motivated by bigotry against Catholic immigrants. Justice Alito discusses the relevant history in some detail in his concurring opinion. Normally, this kind of bigoted motivation would be enough to strike down a government policy, even if it was ostensibly neutral on its face. Here, the issue of motivation is not crucial, because the Blaine Amendment does in fact discriminate on the basis of religion on its face. It explicitly discriminates against religious schools, relative to secular ones.
However, I also agree with the argument that the bigoted motivation behind the law provides an independent basis for striking down Blaine Amendments. If the enactment of a seemingly neutral law or policy is motivated by unconstitutional discrimination on the basis of religion (or some other forbidden criterion), it should be invalidated unless the government provides strong evidence that it would have enacted the same law or policy even in the absence of unconstitutional motives. I have defended this principle in other contexts, such as the Trump travel ban case, and it applies here too. It is unfortunate that both liberal and conservative justices seem to apply it inconsistently, depending on whose ox is being gored in the particular case at hand.
In the case of Montana, this is is admittedly complicated by the fact that the Blaine Amendment was reenacted in 1972, as part of the process of drafting a new state constitution. The 1972 framers arguably did not have the same bigoted motives as those who enacted the 1889 version.
This raises the issue of whether the reenactment “cleanses” the taint created by the bigotry of the 1880s. I cannot fully do justice to this complicated issue in a blog post that is already too long. But I will say that such “cleansing” can only occur if the reasons for reenactment are not themselves tainted by unconstitutional motives. In this case, such a standard will be difficult to meet, because the Amendment discriminates on the basis of religion on its face. Thus, the motives for reenactment necessarily involve some form of discriminatory hostility towards religious institutions, even if no longer focused primarily on Catholics. In his opinion, Alito makes some additional points on why the 1972 reenactment remained tainted by unconstitutional motives. He also (correctly) points out that the reenactment issue does not arise in the case of the many states that still have Blaine Amendments dating back to the original 19th century Blaine movement, and not reenacted since.
Ultimately, the issue of motive isn’t crucial in this case. It is enough that the Montana provision discriminates against religious institutions on its face.
While I am happy about the result of this decision, I am troubled, though not surprised, by the 5–4 division along ideological lines, which replicates the one that happened in the 2018 travel ban case (with the exception of Justice Kennedy, who has since retired from the Court). The conservative justices who turned a blind eye to religious discrimination in the travel ban case consider it imperative to strike it down here. The liberal justices, for their part, have the opposite bias. That ideological division is likely to be replicated in commentators’ reactions to the ruling, as well. It is, I fear another example of how both liberals and conservatives are often inconsistent in their approach to issues of religious discrimination.
Neal McCluskey has already commented on the policy ramifications of today’s important educational/religious freedom Supreme Court decision, but I wanted to pick up on the key legal point.
Espinoza v. Montana Department of Revenue was a simple case that exposed blatant anti‐religious discrimination: Montana created a tax‐credit scholarship program, which state authorities didn’t allow religious parents to take advantage of, and which the state supreme court shuttered rather than allowing those parents to send their kids to religious schools.
Our Constitution simply doesn’t permit that sort of thing.
What’s scary is that this easy call became a 5–4 vote. That’s the margin on which freedom of conscience rests in this country, at least with respect to government action. It shows why various states’ nefarious Blaine Amendments are a blot on our liberties, and why school choice is more important than ever.
It’s basic: Government must not discriminate for or against any group in the provision of services. That should be especially the case in education, which deals with nothing less than the formation of human minds. Today, the Supreme Court took another important step toward enshrining educational equality, declaring it unconstitutional to block a choice program because some families will freely choose to attend religious schools.
Freedom and equality under the law are the primary reasons to take heart about this ruling, but so is the power of school choice to bring greater peace in education. As Cato’s Center for Educational Freedom illustrates on our Public Schooling Battle Map—and described for the Court in two amicus briefs—public schooling forces wrenching social conflict by requiring diverse people to fund a single system of government schools. The result is if one group wants one thing done or taught—evolution, Huckleberry Finn, bathroom selection by gender identity—they have to engage in painful political combat with people who want something else. School choice defuses such conflict by ending the zero‐sum game of public schooling. With choice, all families can seek out what they want without having to impose it on others.
There is a long way to go still to achieve full freedom, equality, and peace in education, which begins with states and local governments extending school choice to all Americans, not just the lucky half‐million or so currently benefiting from vouchers, scholarship tax credits, and education savings accounts. But it is important progress to move one more obstacle out of the way of educational freedom: prohibitions on choice just because someone might choose religious education.
There will probably be more to discuss after I digest the whole decision.