June 2022 | Number 476
Dave and Amy Carson enrolled their daughter, Olivia, at Bangor Christian School, but received no tuition assistance from the town of Glenburn, Maine because Bangor Christian School is a religious rather than a secular private school. Photo provided by the Institute for Justice, which successfully argued Carson v. Makin before the Supreme Court.
Supreme Court Decides for Parents Choosing Religious Schools in Important Maine Case
On June 21, the Unites States Supreme Court ruled 6-3 in Carson v. Makin that the language in a Maine school choice law forbidding religious school participation violates the Free Exercise Clause of the First Amendment and is unconstitutional. The decision affirms and builds on the landmark 2020 decision in Espinoza v. Montana Department of Revenue, where the Court declared: "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 case concerns Maine's "town tuitioning" program. Because Maine is such a rural state, some school districts do not have secondary schools. Parents in those districts are allowed to choose a public or private school for their children, with the home school district sending payments to that school to help defray the cost of tuition. However, under a 1981 amendment to the Maine law, parents were not allowed to select a religious school.

A lower court found that the Maine law was constitutional in spite of the Espinoza decision because Espinoza forbids discrimination on the basis of a school's status as a religious school, whereas the Maine law permits discrimination against religious schools because of the religious uses they will put the funds towards.

The Supreme Court rejected that status-use distinction as unworkable. According to the majority decision written by Chief Justice Roberts, Maine "pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”
Private Schools Eligible for Funding in New Gun Safety Law
President Biden signed new gun safety legislation into law June 25.

In the preceding weeks, as Congress moved to consider a response to the Uvalde school shooting, CAPE sent a letter to Capitol Hill asking that "those sections of the proposed legislation addressing the safety of students be drafted to ensure the maximum participation, support, and protection of all students attending all types of schools."

The CAPE letter pointed out that "If the students and teachers at some schools were to fall under the protective care of congressional efforts, while others were left unprotected, this would bring about a dangerous situation where some types of schools could come to be seen as 'soft targets' and more vulnerable to violence."

The CAPE letter proposed equitable services, potentially though Title IV of ESEA, as the most politically feasible approach to achieve maximum private school participation. In the end, Congress did in fact use that approach, putting $1 billion into Title IV-A, which is subject to an equitable services requirement. According to statute, Title IV funds can be used for "violence prevention," which includes "the promotion of school safety, such that students and school personnel are free from violent and disruptive acts...through the creation and maintenance of a school environment that is free of weapons."

The bill, now law, also funds other programs that private schools may be eligible for, such as the Department of Justice's STOP School Violence Program. However, acceptance of such funds may make a private school into an official recipient of federal financial assistance, a designation many private schools wish to avoid. More information will be needed from the Biden Administration in coming days.
Biden Administration Releases Title IX Regulations
The Biden Administration has released new regulations that would interpret Title IX's prohibition on sex-based discrimination in schools and education programs that receive federal funding to include sexual orientation and gender identity. The proposed rule would roll back most of the Title IX regulations put in place by the Trump Administration and would be the third major revision to Title IX implementation in a decade.

The full ramifications of the proposed rule, which clocks in at 701 pages long, will take time to analyze, and will undoubtedly be subject to litigation. A 60 day public comment period will commence on the date of publication in the Federal Register.

This action comes on the heels of a May 2022 memo from the Department of Agriculture notifying state agencies that USDA considers discrimination on the basis of sexual orientation or gender identity to be illegal under Title IX. This policy would apply to entities that participate in the National School Lunch, Special Milk, School Breakfast, Afternoon Snack and Summer Food Service programs.

Title IX contains an exemption for religious educational institutions.
Arizona Legislature Passes Monumental School Choice Bill, All AZ Students to be Eligible
Legislation is sitting on Arizona Governor Doug Ducey's desk that he says "establishes Arizona as the gold standard of educational freedom" in the country. Under the bill, all 1.1 million K-12 students in Arizona would be eligible for education savings accounts.

Arizona was the first state to create an education savings account (ESA) program in 2011. But only some students can apply—such as those with disabilities, in low-performing schools, or who reside on an Indian reservation.

The new bill allows any of the state’s more than a million K-12 students to be eligible for more than $6,000 for education expenses, including private school tuition and curricular materials. Most other state programs cap the number of students, set income eligibility requirements, or require students to be enrolled in public schools to apply. Arizona’s program may be the nation’s broadest.

The bill also expands the use of ESA funds for transportation and such equipment as computers or other education technology. The scholarship money is funded by the state and equal to 90% of what the state would provide for charter-school students. It will follow students to the schools of their choice.
After Carson v. Makin: Religious Charter Schools?
From Nicole Garnett, writing in the New York Daily News:

This decision, in Carson vs. Makin, is the third decision in five years to invalidate the exclusion of religious schools from public-benefit programs. The opinion breaks no new doctrinal ground, but instead represents a straightforward application of what the majority calls the “unremarkable principle” that a “State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.

For the private-school choice program, Carson will have little immediate impact. Over half of states now have programs enabling children to attend a private school, and all but two of them — Maine and Vermont — sensibly and voluntarily include religious schools. The decision does, importantly, clear a path for the further expansion of private-school choice by defanging state establishment clauses that purport to prohibit support of religious schools.

But private-school-choice programs, which enroll fewer than 1% of U.S. schoolchildren, are only the tip of the school-choice iceberg. The elephant in the room is how this reaffirmed non-discrimination principle will now be applied to charter schools...

So if charter schools really are public schools — that is, state actors — they must remain solely secular. If they are truly private and independent, but merely state funded, then there is no constitutional justification for prohibiting them from teaching religion.

Food for thought. Read the whole thing here.
Drew Smith with Friends Schools to be New CAPE President
Drew Smith, Executive Director of the Friends Council on Education, will assume the mantle of leadership of CAPE's national board on July 1, 2022. He takes over for Gary Arnold, longtime head of the Arkansas CAPE, who served as President of the CAPE board for the last four years and will remain on the board as an at-large member. Lincoln Snyder, President/CEO of the National Catholic Educational Association (NCEA), will take over for Drew as board Vice President.

The Friends Council on Education and NCEA are charter members of CAPE, having been present "at the creation" when CAPE was established in 1971.
Virginia CAPE Leader Named to State Board of Education
Grace Creasy, Executive Director of the Virginia Council for Private Education (VCPE), CAPE's Virginia affiliate, has been appointed to the Virginia Board of Education by Governor Glenn Youngkin. Appointments to the State Board are subject to confirmation by the General Assembly. If confirmed, Grace will retain her position with VCPE.
Private Education: Good for Students, Good for Families, Good for America
CAPE member organizations:

Agudath Israel of America

Association of Christian Schools

Association of Christian
Teachers and Schools

Association of Waldorf
Schools of N.A.

Christian Schools International

Council of Islamic Schools
in North America

Council on Educational Standards
and Accountability
Evangelical Lutheran Church
in America

Friends Council on Education

Islamic Schools League of America

Lutheran Church–Missouri Synod

National Association of
Episcopal Schools

National Association of
Independent Schools

National Catholic
Educational Association
National Christian School

Office for Lasallian Education
Christian Brothers Conference

Oral Roberts University
Educational Fellowship

Seventh-day Adventist
Board of Education

United States Conference of
Catholic Bishops

Wisconsin Evangelical Lutheran
Synod Schools
Affiliated State Organizations a coalition of national associations serving private schools K-12

Executive Director:
Michael Schuttloffel

Outlook is published monthly (September to June) by CAPE.
ISSN 0271-145

1300 Pennsylvania Ave, NW
Washington, DC 20004
Tel: 844-883-CAPE

Michael Schuttloffel
Executive Director
Phone: 844-883-CAPE