A demonstrator outside the Supreme Court as it rules on Our Lady of Guadalupe School v. Morrissey-Berru, July 8.
Photo: jonathan ernst/ReutersThe last week of the recent Supreme Court term brought two important decisions for supporters of religious liberty in education. As is often the case in school, the more popular one isn’t necessarily the most likely to succeed.
Espinoza v. Montana was the long-awaited Blaine Amendment case. It held that a state constitutional provision excluding religious schools from programs that fund private schools runs afoul of the First Amendment’s Free Exercise Clause. As Chief Justice John Roberts explained, “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.”
Our Lady of Guadalupe School v. Morrissey-Berru involved the “ministerial exception” to employment laws, which insulates religious institutions from some labor lawsuits. Writing for a seven-justice majority, Justice Samuel Alito explained that courts couldn’t intervene in employment disputes involving religious schoolteachers because it “would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”
Espinoza was described by Education Secretary Betsy DeVos as a “historic victory,” while American Federation of Teachers President Randi Weingarten decried it as “a seismic shock that threatens both public education and religious liberty.” Although Our Lady of Guadalupe generated less passion, it is likely to prove much more meaningful to religious schools.
Espinoza is doctrinally important, and it rightly permits states to support religious schools alongside other private schools. But there is no reason to think that states will now step up spending. Budget and political constraints have more influence than legal concerns over private education funding. Even before Espinoza, states with the political will to fund private schools found legal ways to do so. As the ruling acknowledged, most “states with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious options in tax credit programs.”
The demographics of religious schools also suggest a limited effect for Espinoza. Consider Jewish schools. In 1945, there were fewer than 7,000 students spread across 30 Jewish schools in the U.S. All but a handful were in New York. Today, there are more than 900 Jewish schools in 38 states educating nearly 300,000 students. But 80% of Jewish school students are still in New York, New Jersey and California—blue states that will not jump to increase funding for private schools after Espinoza.
Enrollment at other private schools also skews blue. A week after Espinoza was decided, a handful of states and cities filed a federal lawsuit challenging a Trump administration rule requiring school districts to distribute a proportionate share of their federal Covid-19 education aid to private schools. The governments pursuing that claim represent more than a third of Catholic and other private school students in the country.
Our Lady of Guadalupe, on the other hand, provides religious schools with something vital. In an era when the gulf between society’s values and those promoted by religious schools is getting wider while tolerance for differences is getting narrower, the ruling ensures that religious schools can pursue their mission free from government interference.
The premise of the decision is an acknowledgment that the “religious education and formation of students is the very reason for the existence of most religious schools.” Therefore “the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.”
If that seems obvious, it isn’t to those running things in New York. For several years the state has been trying to impose regulations that would dictate what private schools must teach and would subject their teachers to evaluations by bureaucrats. The Council of American Private Education declared last year that “the proposed regulations would constitute an unprecedented level of state interference with the independence of private schools.”
Our Lady of Guadalupe prohibits precisely this. The court found that the government has no license to get between religious schools and their faculty, even those who teach secular topics like math and science. Even they are expected “to model, teach and promote behavior in conformity” with religious values. As Justice Alito put it, educators are “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.”
Religious schools teach students that the most important things in life can’t be bought. By recognizing that Our Lady of Guadalupe’s guarantee of religious liberty is more valuable than Espinoza’s promise of increased funding, religious schools would practice what they preach.
Mr. Schick is a partner at Troutman Pepper and president of the Rabbi Jacob Joseph School.
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