On March 30, the Notre Dame Law School Religious Liberty Initiative hosted a panel discussion that explored the dynamic and complex intersection of education and religious liberty. The event featured accomplished attorneys who have taken up cases that pose questions about the interpretation of the Free Exercise Clause in relation to educational programs.
In the discussion, titled “Carson v. Makin, Parental Choice, and Religious Liberty,” the panel of school choice and religious liberty experts offered their insights on the implications and impact of the Supreme Court’s recent decision in Carson v. Makin, which held that religious schools must be included in private-school-choice programs. As the initial discussion about Carson v. Makin unfolded, the panelists addressed a range of other relevant topics pertaining to the legal landscape for educational programs, such as related cases outside the school choice context, as well as the development of the unconstitutional conditions doctrine.
The panelists included Michael Bindas, senior attorney with the Institute for Justice; Michael Helfand, Brenden Mann Foundation Chair in Law and Religion and professor of law at Pepperdine Caruso School of Law; Michael Moreland, professor of law and religion at Villanova University Charles Widger School of Law and director of the Eleanor H. McCullen Center for Law, Religion and Public Policy; and Laura Wolk Slavis, counsel at Becket Law and a 2016 graduate of Notre Dame Law School.
Nicole Stelle Garnett, John P. Murphy Foundation professor of law and associate dean for external engagement at Notre Dame Law School, organized and moderated the panel discussion.
Bindas, a school choice litigator who leads the Institute for Justice’s educational choice team, kicked off the discussion by briefly summarizing the facts of Carson v. Makin and addressing the legal questions raised in the case. He served as lead counsel for the plaintiffs in Carson and argued the case before the U.S. Supreme Court. The main legal question in Carson was whether a state that has a school choice program can prohibit parents from selecting schools that provide religious instruction for their children. His team contended that the exclusion of religious schools from Maine’s state tuition program violated the Free Exercise Clause of the First Amendment, and the U.S. Supreme Court agreed.
“When many people think about the First Amendment, they think about the Free Speech Clause, and while that’s certainly a vital protection, so, too, is the Free Exercise Clause, which enables people to live in accordance with the dictates of their faith,” Bindas said. “Especially of interest to me is the protection the Free Exercise Clause provides for parents to direct the education and upbringing of their children. I enjoy that protection as a parent, but I also have the privilege of litigating to ensure that other parents have the ability and right to select a religious school if that is what they believe is best for their children.”
According to Bindas, Carson makes clear that the Free Exercise Clause prevents the state from denying an otherwise available benefit or penalizing parents simply because they believe that a religious education is the best option for their children. Through this ruling, the U.S. Supreme Court has paved the way for greater school choice in the United States.
The implications of the Carson decision are not just limited to the school choice context, however. The Court’s decision applies more broadly to prohibit religious discrimination in other types of public benefit programs, as well.
Helfand, who serves as co-director of the Nootbaar Institute for Law, Religion and Ethics at Pepperdine Caruso School of Law, addressed the deeper underlying problems that religious discrimination creates. Reflecting on the significance of Carson v. Makin and similar cases, Helfand said, “From my vantage point, withholding generally available funds from religious institutions because they are religious simply is religious discrimination. In that way, the problem isn’t just that religious entities lose out on important funds and important benefits. The problem is that it singles them out, gives them less, and thereby undermines their status as equal citizens.”
Both Helfand and Wolk Slavis are actively involved in the recent case Loffman v. California Department of Education, which follows a similar track of litigation to that of Carson v. Makin. In Loffman, a group of three Orthodox Jewish families and two Orthodox Jewish schools are challenging a California law that excludes religious parents and schools from using federal and state special education funding to serve children with disabilities. Wolk Slavis is part of Becket Law’s litigation team that is challenging the California law based on First Amendment grounds. Helfand is also very involved in the Loffman case, having brought Becket Law together with the Jewish families and schools that filed the lawsuit.
Wolk Slavis cited similarities between Carson and Loffman. “Carson made it really clear that once a state offers a public benefit, it cannot exclude otherwise eligible participants solely because they are religious, and that is what the California law is doing,” Wolk Slavis said. “Under Carson, their law is unconstitutional. It’s very similar to the facts that were raised in Carson.”
Given the U.S. Supreme Court’s recent ruling in Carson v. Makin, Wolk Slavis is hopeful about the Loffman case. “We are hoping that California politicians will see the writing on the wall in light of Carson,” she said.
Highlighting the significance of the case, she added, “The Loffman case is an example of outmoded First Amendment jurisprudence at work and how state law continues to be influenced by it, so we’re hopeful that Loffman will help to correct course to have state law be more in line with First Amendment principles.”
Helfand believes that it will become vitally important in the coming years for the legal community to analyze the law in a wide range of jurisdictions and determine which laws violate the First Amendment. “We’ve got to clean up our act and make sure that benefits are equally accessible to all people regardless of their faith,” he said. “Every child should be able to have access to an education that meets their special needs, whether or not the school is religious.”
In addition to discussing the parallels between the Carson and Loffman cases, the panelists examined “regulatory strings” questions and the development of the unconstitutional conditions doctrine.
Moreland believes that there has been large development of the unconstitutional conditions doctrine in regard to free speech, but much less in the free exercise context. He posed the question, “Instead of prohibiting religious participation in these benefit programs, what if the government imposes conditions or strings on the recipients of these benefits?” Moreland said that this is the question being posed currently “in somewhat undeveloped form.”
Helfand added, “Now that the government has to include religious institutions in government funding programs, can it put strings on those funds in order to accomplish a new set of objectives? That is the big question.” His general view is that, with the way religious liberty protections are now, the government is allowed to attach strings that are neutral and generally applicable.
Bindas considered the compelling relationship between religious liberty and education for many families. He reiterated that while religious liberty ensures that citizens are free to believe and practice their faith, it also helps to ensure that parents have the right to direct the education of their children.
“Parents know better than anyone what type of education works best for their children. For some children, it might be a school with a strong STEM curriculum or a great arts program. For others, it might be a school that provides religious instruction,” he said. “Parents should be able to choose that type of education if they believe that is what is in the best interest of their children.”
The panel discussion was part of a series of book launch events for The Case for Parental Choice: God, Family, and Educational Liberty by John E. Coons, a visionary legal scholar and ardent proponent of parental school choice. In addition to the panel event, Garnett organized a virtual book launch at which Coons, Notre Dame Law School Dean G. Marcus Cole, and other scholars and advocates discussed the book and the state of the current school choice movement. In the evening, the Institute for Justice’s Short Circuit podcast featured an episode on The Case for Parental Choice.
The book contains a collection of essays by Coons and is edited by University of Notre Dame faculty Nicole Stelle Garnett, Richard W. Garnett, and Ernest Morrell. The essays in The Case for Parental Choice examine a wide range of topics, including the relationship between parental choice and individual autonomy; the implications of American educational policy for social justice, equality, and community; the impact of education policy on low-income families; and the religious implications of parental choice. Collectively, these pieces present a morally compelling and richly humanitarian case for parental choice in children’s education. The themes developed in this book are becoming increasingly relevant today, as more states are enacting policies that empower parents to take control of their children’s education. Free copies of the book were distributed at the panel event, and many of the book’s themes were interwoven into the discussion.
About the Notre Dame Law School Religious Liberty Initiative
Established in 2020, the Notre Dame Law School Religious Liberty Initiative promotes and defends religious freedom for all people through advocacy, formation, and thought leadership. The initiative protects the freedom of individuals to hold religious beliefs as well as their right to exercise and express those beliefs and to live according to them.
The Religious Liberty Initiative has represented individuals and organizations from an array of faith traditions to defend the right to religious worship, to preserve sacred lands from destruction, to promote the freedom to select religious ministers, and to prevent discrimination against religious schools and families.
Learn more about the Religious Liberty Initiative at https://religiousliberty.nd.edu/.
Originally published by religiousliberty.nd.edu on April 11, 2023.at