September 2020 | Number 457
Landmark Supreme Court Decision Strikes a Blow Against Blaine Amendments
In a year not marked by an overabundance of good news, advocates of private education had reason to celebrate this summer with a historic decision by the United States Supreme Court in Espinoza v. Montana Department of Revenue. The nation's highest court overturned a decision by the Montana Supreme Court that had struck down a tax credit scholarship program solely because some of the children receiving scholarships attended religious schools.

In overruling the Montana court, Chief Justice Roberts wrote for the majority, "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."

During oral arguments, Justice Kavanaugh made reference to the amicus brief signed by CAPE in September 2019.

The Institute for Justice, which litigated the case, called the 5-4 decision "one of the most important education reform cases in the past half-century."
High Court Reaffirms "Ministerial Exception"
In addition to Espinoza, the Supreme Court handed down another ruling supporting private - in particular religious - schools. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court ruled 7-2 that the "ministerial exception" does not allow the courts to adjudicate the employment-discrimination claims brought against two Catholic schools.

Some key excerpts from the decision:

"Although these teachers were not given the title of 'minister' and have less religious training than Perich, we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor. 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."

"When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow."
Maryland Governor Overrules Montgomery County Effort to Block Private School Reopening
After a week of dueling orders on the part of Montgomery County health officials and the governor of Maryland, Montgomery County Health Officer Travis Gayles officially rescinded his two orders blocking the return of in-person learning at private schools. Governor Larry Hogan's barring of blanket closures appeared to be the decisive move in the see-saw battle over school reopening, which also saw a lawsuit filed by a group of private school families angry over the county's efforts against in-person reopening.

Kelly Branaman, Interim Superintendent of Schools for the Archdiocese of Washington, said in a statement, "I am grateful that the County recognized the autonomy of non-public schools to make local decisions on reopening in a safe and appropriate manner."
CARES Act Equitable Services Rule Enjoined
Readers of CAPE Outlook will recall that when Congress passed the CARES Act in March of 2020, its K-12 COVID relief provisions included a requirement for equitable services. Because of ambiguity in the law on the matter of how the funds are to be distributed, the US Department of Education proceeded to issue guidance calling for all students to be served equally. This policy led to a firestorm of criticism from public school advocates over the funds.

The Department responded by promulgating a legally binding rule that gave Local Educational Agencies (LEAs) the option of distributing the relief funds either through the simple enrollment count the guidance provided for, or a Title I approach if and only if that Title I approach would also apply to that LEA's public schools. Otherwise, LEAs might well limit CARES Act relief to a select number of low-income children in private schools, while serving all kids, rich and poor alike, in public schools.

The Department's olive branch did not satisfy opponents of the rule, who have proceeded to file several lawsuits against its implementation. In two of those cases federal judges have blocked enforcement of the rule while expressing strong skepticism of the Department of Education's position.

CAPE has signed onto three amicus briefs supporting the rule.
New Round of COVID Relief Still in Limbo
In May, the US House of Representatives passed massive new COVID relief legislation as a followup to the CARES Act. Unlike the CARES Act, however, that House bill entirely excluded private schools' students and teachers from its K-12 aid provisions.

The Senate declined to take that bill up, instead introducing its own proposal in July that included direct aid to private schools as well as authorization for an emergency one-time appropriation to scholarship granting organizations in the states.

Since then, negotiations between the House, Senate, and White House have failed to produce a deal. Reports suggest the Senate may attempt to consider a scaled-down "skinny bill" as soon as next week, but it remains unclear when, or if, a new round of COVID relief will get to the president's desk.
Eight Private School Teachers Receive Neubauer Prize for Urban Teaching
The Neubauer Prize for Urban Teaching is presented by Wisconsin's Center for Urban Education Ministries in recognition of teacher excellence. Eight of the twelve educators recognized in this the award's inaugural year teach at private schools:

Megan Dills, St. Marcus School, Milwaukee
Nadia Lopez, Pilgrim Lutheran School, Milwaukee
Quanesha Medina, HOPE Christian School (Semper), Milwaukee
Michelle Minnihan, St. Martini Lutheran School, Milwaukee
Zach Murray, HOPE Christian School (Fidelis), Milwaukee
George Paasewe, HOPE Christian School (Fortis), Milwaukee
Amanda Stewart, St. Martini Lutheran School, Milwaukee
Liz Swarczewski, St. Martini Lutheran School, Milwaukee

Congratulations teachers!
Dane County, Wisconsin Orders Schools Closed
In other news from Wisconsin, Dane County has ordered both public and private schools closed because of COVID-19. In response, the Wisconsin Institute for Law & Liberty, acting on behalf of a group of parents and schools, has asked the Wisconsin Supreme Court to overturn that order. Stay tuned.
Department of Education Releases Religious Liberty Guidance
The Department of Education has released guidance affirming that religious organizations are equally eligible to participate in Department-administered programs as their secular counterparts. A Department release describes the guidance as also making clear that "religious organizations receiving federal financial assistance under a Department program...may continue to carry out their missions and maintain their religious character."
Annus Horribilis
It goes without saying that this is a time of tremendous uncertainty for private schools. It is also a time of opportunity.

The "private" in private schools means that these institutions are operated by the private sector, but make no mistake, they operate in the public square, serving the public good. Having long been accustomed to serving a customer, private schools showed their adaptability in the spring in the midst of unprecedented circumstances. And now, as the country is battered by the seemingly endless curveballs, knuckleballs, and beanballs the year 2020 continues to hurl at our collective heads, private schools have opened. Children are at their desks, learning. Teachers are teaching.

Imagine now what this particular September would look like if education funding followed the child? How many parents would like to have options right now?

In so many ways, society will never go back to how it was before this pandemic. Old assumptions about work are being questioned. So too will it be with education. The service done by private schools in 2020 may prove to have accomplished more for educational pluralism than a quarter century of political advocacy. These days will be long remembered.
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

Jesuit Schools Network

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