Will SCOTUS Allow Colorado to Write the National Playbook for Excluding Religious Schools?

An amicus brief from forty-three members of the U.S. Senate and House warns the U.S. Supreme Court of an ironic danger – that states could use “nondiscrimination” rules to discriminate against religious schools seeking to participate in a new federal school-choice scholarship program.

Colorado is the pioneer in this effort, defining a new path to exclude religious schools from public education programs: Don’t ban these schools for being religious – just impose conditions that require them to abandon their religious beliefs.

That is the danger these legislators, led by Sen. James Lankford (R-OK) and Rep. Tim Walberg (R-MI), warn of in their brief concerning St. Mary Catholic Parish v. Roy.

That case concerns Colorado’s Universal Preschool Program, which allows families to choose among public and private providers. Catholic parishes and preschools were excluded because their religious-based teachings on marriage and gender conflict with the state’s nondiscrimination requirements. Colorado thus bars these schools from participating in this state program, even though they meet all the relevant state standards for the care and education of children.

The Tenth Circuit in Denver upheld Colorado’s policy. The congressional brief now warns that if this ruling stands, it will provide a roadmap for excluding religious schools from federal educational programs as well.

One implication of the Tenth Circuit’s ruling concerns the eligibility of religious schools to participate in the new federal Educational Choice for Children Act (ECCA) scholarship program. The ECCA directs tax-exempt private donations to states to pay for tuition and educational materials for a host of educational options, ranging from science- and arts-based schools to parochial and other religious schools, as well as support for homeschooling.

Congress created ECCA to encourage private donations to the program’s scholarship-granting organizations. States, however, play an important role in implementing the program.

The determination of some states to exclude religious schools is far from theoretical. Vermont is already leading the way, opting into ECCA while imposing nondiscrimination requirements that could effectively exclude many traditional religious schools.

The Supreme Court has seen similar maneuvers before. In Espinoza v. Montana Department of Revenue, the Court held that a state cannot create an educational benefit and then disqualify schools merely because they are religious. In Carson v. Makin, the Court struck down Maine’s attempt to exclude religious schools from a generally available tuition-assistance program.

“The Court’s recent Free Exercise Clause precedents have confirmed that a state may not condition access to a generally available public benefit on the surrender of religious identity or the abandonment of religious exercise,” the brief states.

And yet, states keep trying to do just that.

Colorado’s approach represents this new and disingenuous attempt to circumvent the Court’s precedents. Instead of hanging a “No Religious Schools Allowed” sign, the state demands that religious schools set aside religious doctrines as the price of admission. That is, however, just another way to stand at the schoolhouse door and bar admission to disfavored groups.

These forty-three Members of Congress, with the help of the WilmerHale law firm, make it clear that the Supreme Court must not allow Colorado or Vermont to evade its First Amendment Free Exercise Clause precedents with clever drafting. Government cannot force religious schools to choose between their faith and participation in a public program open to everyone else. That is why St. Mary has the potential to be a pivotal case for religious liberty.
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Protect The 1st commends these lawmakers for alerting the Court that if Colorado’s playbook is upheld, other states can be expected to follow.

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