As Neal McCluskey explored yesterday, education involves “developing the minds—and for many, the souls— of human beings.” This basic truth has resulted in education being a common battleground since the early days of state involvement. Not surprisingly, most of these battles have been around religion, which is a primary way morals and values are taught and upheld.
Many early public schools were at least loosely Protestant—including prayer and Bible reading as part of the school day—precisely because a strong moral upbringing was considered so essential. This resulted in court cases as early as the mid-1800s as Catholic students objected to Protestant versions of the Bible and prayers. Since the First Amendment’s protection of religious freedom was initially limited to the federal government, these cases related to religion in public schools were heard in state courts.
Some of the rulings are rather shocking by today’s standards. For example, in the 1859 Massachusetts case Commonwealth v. Cooke, Judge Maine ruled against allowing the state to prosecute a public school teacher who had struck an 11-year-old Catholic boy on his palms for 30 minutes using a long, thick rattan stick for refusing to recite Protestant prayers. The punishment only stopped when the boy agreed to repeat the Lord’s Prayer and the Ten Commandments from a King James Bible.
In his ruling, Judge Maine noted that state statues said public schools should instruct children in “the principles of piety, justice, and a sacred regard to truth, love to their country, humanity” and were to “require the daily reading of some portion of the Bible in the common English version.” He called schools “the granite foundation on which our republican form of government rests” and observed that if Roman Catholic children were permitted opt out of Bible reading, others would make the same case—and for any number of books or lessons. For Judge Maine, like many of his day, the common English version of the Bible was an unobjectionable way to teach morals and virtue. But for students and families with different (or no) religious beliefs, requiring the Protestant Bible in public schools was a violation of their freedom.
After the Fourteenth Amendment was adopted in 1868, the U.S. Supreme Court gradually “incorporated” most provisions from the Bill of Rights and made them enforceable at the state level. This allowed people who disagreed with the religious nature of public schools to take their cases to the federal level. In the 1960s, the court ruled against public prayer and reading the Bible in public schools. Since public schools are government schools, these rulings make sense considering the First Amendment’s prohibition against government establishment of religion. But what about the free exercise clause? If states are going to mandate taxpayers fund and children attend public schools, does it violate the free exercise clause if those schools must be secular?
The tension between the establishment and free exercise clauses is at the heart of many legal challenges involving education. As the School Choice Timeline shows—and as Neal discussed yesterday—Catholics were the earliest proponents of allowing taxpayer funding to follow children to nonpublic (i.e., non-government) schools. But legal challenges have accompanied school choice programs, typically focused on the establishment clause.
The first U.S. Supreme Court case on the timeline is Mueller v. Allen from 1983. This involved a Minnesota tax deduction for education expenses that was enacted in 1955. Some Minnesota taxpayers sued over the program, claiming it violated the Establishment Clause by providing financial assistance to “sectarian” institutions. The court ruled that the deduction did not violate the First Amendment since it was based on the free choice of parents and was broadly available.
The next big school choice court case came from Ohio, where lawmakers created a scholarship program in 1995 that allowed eligible students in Cleveland to receive a tuition voucher that could be used at participating public or private schools. The program was challenged by a group of Ohio taxpayers for violating separation of church and state. The Supreme Court upheld the program in Zelman v. Simmons-Harris, with Chief Justice Rehnquist writing that it “is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.”
Arizona’s scholarship tax credit was the foundation for a landmark Supreme Court ruling in a 2011 case, Arizona Christian School Tuition Organization v. Winn. A group of Arizona taxpayers challenged the tax credit scholarship program since the scholarships could be used for religious schooling. The court ruled the plaintiffs had no standing to sue because tax credits involve personal income, not government money. As Justice Kennedy wrote in the majority opinion, “Respondents’ contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence. Private bank accounts cannot be equated with the Arizona State Treasury.”
Montana’s tax credit scholarship program resulted in another Supreme Court victory for school choice. The Montana legislature enacted a small tax-credit scholarship program in 2015. Shortly after it was enacted, the Montana Department of Revenue prohibited recipients from using their scholarships at religious schools. The department cited a provision of the state constitution prohibiting “direct or indirect” public funding of religiously affiliated educational programs. In 2020, the U.S. Supreme Court ruled in Espinoza v. Montana Department of Revenue that “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.”
The most recent U.S. Supreme Court ruling around school choice involves the earliest school choice programs in the U.S.: town tuitioning programs. These programs in Vermont (launched in 1869) and Maine (1873) allow towns that don’t have public schools to pay a student’s tuition at an approved public or private school—including religious schools. Religious schools were eventually banned from both the programs due to a state court ruling in Vermont and a legislative change in Maine. In the 2022 case Carson v. Makin, the U.S. Supreme Court overturned Maine’s ban on parents choosing a religious school in the tuitioning program, ruling that it violated the parent’s First Amendment religious rights.
Despite so many legal victories for school choice, opponents continue to file lawsuits attempting to block these options. The Institute for Justice, a non-profit, public interest law firm that has successfully defended many of these programs (including Espinoza and Carson), is currently involved in cases in Ohio and New Hampshire. Just last year, IJ scored a legal victory for West Virginia families when the state supreme court ruled in favor of Hope Scholarships.
Unfortunately, Kentucky’s Education Opportunity Account Program, a tax credit education savings account, did not fare as well; the state supreme court ruled against it last month. Unlike Justice Kennedy’s opinion in the Arizona tax credit scholarship case discussed above, the Kentucky ruling treats private donations as government expenditures—a development that could impact other tax credits and deductions in the state.
Looking back through the history of school choice, one thing is clear: As long as states mandate education funding and attendance, legal battles are likely to ensue. It’s the nature of the beast. But allowing parents to direct the education of their children through school choice programs can help alleviate those fights. As Neal made clear yesterday, education is different than parks and roads—it’s inextricably linked to deeply held morals and values. That’s why school choice is essential in a society that values freedom.
