Be Our Guest / John Elcesser

Recent court decisions have had positive, negative effects on Catholic schools

The COVID-19 pandemic has shut down so much during the past six months, including businesses, restaurants, gyms and even schools. It has not, however, shut down the court system.

There have been several rulings in education lawsuits this year that could have some bearing on Indiana’s non-public schools. The U.S. Supreme Court announced a number of opinions prior to their summer recess, two of which were of particular interest to us in Indiana.

A landmark case for school choice, Espinoza v. Montana Department of Revenue, was released on June 30. The case centered on a very modest tax credit scholarship program designed to assist families in attending the private school of their choice, which was passed by the Montana Legislature in 2015.

Later, the Montana Department of Revenue ruled that religious private schools could not participate because it violated their state constitution’s Blaine amendment.

Blaine amendments, which were initiated out of anti-Catholic bigotry, worked themselves into 39 state constitutions after failing passage into the U.S. Constitution back in 1875. The intent was to keep any “public” dollars from supporting Catholic schools as they were opening across the country in response to the strong Protestant culture in our public schools at that time.

Blaine amendments vary across states, some being much more restrictive than others. Indiana is one of the states with a Blaine amendment in its constitution, but it is one of the more broadly written ones. When the teachers unions sued Indiana after it passed the Choice Scholarship (voucher) Program in 2011, the case ended up in the Indiana State Supreme Court where the justices voted unanimously (5-0), affirming that Indiana’s program was constitutional.

The Espinoza case, in short, said that if a state passes a school choice program they can’t exclude the participation of religious-based schools just because they are religious. The justices recognized that the program was designed to support families and not schools, religious or not. School choice advocates see the Espinoza decision as a serious blow to Blaine amendments across the country with the hope that it will open the door to new choice programs in other states. Currently 26 states, the District of Columbia and Puerto Rico have some type of choice program.

The Court issued a 7-2 ruling in the Our Lady of Guadalupe School v. Morrissey-Berru case. This case had religious liberty implications, and for that reason we were watching it closely here in Indiana. This case dealt with discrimination lawsuits against two Catholic schools in California. In Justice Samuel Alito’s opinion, on behalf of the majority, which in essence supported the schools, he said:

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

The case affirmed the ministerial exemption for employees of religious entities that play some role in their schools’ religious missions.

Finally, the COVID-19 pandemic has brought a series of its own lawsuits. To date, three lawsuits have been filed dealing with Congress’s CARES Act emergency relief funds for K-12 schools. These funds were intended to help all schools navigate the challenges of providing an education in the midst of a pandemic. Like many federal education funds, the legislation included language requiring the “equitable participation” of non-public schools. That part of the legislation was clear. It was less clear how that equitable share should be calculated.

In reviewing the language in the law, many state departments of education interpreted the language to require the allocation be based on a Title I poverty count. The U.S. Department of Education (USDOE) issued guidance, saying it should be based on a non-public school’s total enrollment. Indiana and a number of other states refused to follow the guidance and a subsequent binding rule. This led to a number of states suing the USDOE in three different, but similar, lawsuits.

For reference, in Indiana, using the USDOE formula, the non-public schools would have been allocated $15 million to assist with pandemic relief. Using the poverty count favored by Indiana’s Department of Education, non-public schools were allocated only $4 million. The three lawsuits are pending in the states of Washington, California and the District of Columbia. Preliminary rulings have not been favorable to USDOE, and Education Secretary Betsy DeVos decided not to appeal in the courts further and essentially rescinded their rule.

COVID-19 has impacted all schools as they reopened for a new school year, and our non-public schools will continue navigating how to provide quality education in the midst of this pandemic. It is our hope that any future emergency relief funding will treat all schools equitably as they do their part to serve the common good.

We, at the Indiana Non-Public Education Association, will continue to keep a watchful eye on any future federal legislation or litigation that could impact the education of our Hoosier families.
 

(John Elcesser is the executive director of the Indiana Non-Public Education Association.) †