It looks like most schools will be open for in-person learning this fall. But there are still many questions about the coming school year. Will governors mandate children attending public and private schools to wear masks? Can all schools receive government grants to cover the cost of pandemic-related health-and-safety measures? Will needy families who want to send their children to private religious schools be able to do so? 

Religious freedom is a common thread that runs through all of these questions. It’s no surprise, then, that courts are being asked to provide the answers. 

 

Catholic School Challenges Michigan’s Mask Mandate

Resurrection School, a K-5 Catholic parochial school in Lansing, Michigan, has requested a three-judge panel of the 6th Circuit Court of Appeals to declare unconstitutional the state’s now-rescinded mandate that all students wear masks to curb the spread of COVID-19. The school’s lawsuit, filed last year, claims that the mandate interferes with the school’s ability to deliver instruction according to its Christian beliefs. The complaint makes some pretty provocative assertions: 

“In accordance with the teachings of the Catholic faith, Resurrection School believes that every human has dignity and is made in God’s image and likeness. Unfortunately, a mask shields our humanity. Masks also make us anti-social. They interfere with relations. As the Catholic faith teaches, we are relational beings. And our existence as relational beings points to the Holy Trinity. A mask is disruptive to this essential element of the Catholic faith, and it is disruptive to the teaching of young children for these and other reasons.” 

There is no shortage of Catholic commentators questioning the school’s interpretation of Church teaching. Such disagreement, however, is irrelevant for evaluating the case. Courts may determine only the sincerity of religious beliefs, not their validity. Even religious beliefs that some reasonable observers question are entitled to protection if sincerely held. And there is no indication that Resurrection School officials are being insincere. 

The school has appealed a lower court’s denial of its request to stop the mandate. Michigan officials now argue that the case is moot because its mask mandate was rescinded in early June. It is a long-standing rule, however, that voluntary cessation of a challenged action does not moot a case unless there is no reasonable prospect the behavior will resume. In light of recent recommendations by the CDC and the American Academy of Pediatrics that children wear masks while in school regardless of vaccination status, it is not unreasonable to fear that Michigan’s mask mandate will return. 

Michigan’s lawyers also defend the state’s mask mandate as “a neutral, generally applicable law that imposed only an incidental burden on religion.” But the mandate had many exemptions — such as while speaking in public, voting in schools and for religious worship. The Supreme Court, in its recent decision in Fulton v. City of Philadelphia, confirmed that when a policy is riddled with exceptions, the government must show why it cannot also grant a religious exemption. This is a very high bar to clear. 

It’s worth noting that Resurrection School took other health-and-safety measures last year to mitigate the spread of the coronavirus, and there were no reported cases of transmission of the virus. 

The panel’s decision is expected soon.

 

South Carolina CARES Act Grants

Passed in March 2020, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) included emergency education relief funds that states could direct to schools and other institutions affected by COVID-19. South Carolina Gov. Henry McMaster created a grant program that would have allowed low- and moderate-income students to apply for need-based grants of up to $6,200 to stay in or move to independent schools. McMaster also allowed grants to help private universities upgrade and adapt. 

In response to a lawsuit filed by a teachers’ union, South Carolina’s Supreme Court invalidated the student grant program, noting that a no-aid provision in the state constitution prevents public funds from going to any private schools. 

South Carolina’s no-aid provision was passed after the Civil War at a time of great prejudice against Catholic immigrants and newly freed slaves. It bars state funds from going to all private schools. The provision is known as a state “Blaine Amendment” — after Sen. James Blaine, who unsuccessfully sought ratification of an amendment to the U.S. Constitution that barred public money from “sectarian” (aka Catholic) schools. In South Carolina, the broader provision was advanced by the notorious white supremacist Benjamin Ryan “Pitchfork Ben” Tillman.

Last year, the Supreme Court in Espinoza v. Montana Dept. of Revenue reviewed a case where Montana’s high court invalidated a tax benefit incentive program for donations made to scholarships available to students at private schools, including religious schools. The state court had ruled that the program’s benefit to religious schools violated the state’s Blaine Amendment. The Supreme Court reversed, explaining that “[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.” 

South Carolina’s Supreme Court did not apply Espinoza, noting that the state’s constitution bars funds to all private schools, unlike Montana’s, which only restricted funds to religious schools.

The Diocese of Charleston, representing 33 parish schools in the state and an association of private universities that includes historically Black colleges, filed a lawsuit in federal court. They argued that the state’s Blaine Amendment violates the Free Exercise and Equal Protection Clauses of the U.S. Constitution. 

A lower court denied the group’s request for a preliminary injunction. The court also denied a request by the NAACP to intervene as a party in support of the no-aid provision and instead welcomed the group to file a “friend-of-the-court” brief. 

That a well-known civil-rights organization sided with the government is a huge disappointment. Catholic schools have always been a shining light for low-income and minority students whose public schools failed them. What’s more, South Carolina’s no-aid provision is keeping money from benefitting historically Black colleges in the state. 

Former U.S. Solicitor General Paul Clement, in a recent opinion piece published in The Hill about the case, said that no-aid provisions like South Carolina’s “prompted by 19th-century bigotry cannot be the basis for 21st-century discrimination.” He called the situation a “double constitutional offense.” 

If the lower court rejects the group’s request to declare South Carolina’s Blaine amendment unconstitutional, expect an appeal.

 

Maine’s Blaine

Finally, the Supreme Court will look at Maine’s Blaine Amendment. 

State law allows towns in Maine without public high schools to pay tuition so that local students can attend the public or private school of their choice. There is one catch: The school can’t be a religious school. With more than 50% of school districts in the state not operating their own high schools, the impact of this no-aid provision is significant. 

A group of families seeking to send their children to Christian schools sued the state in federal court. Refusing to apply Espinoza, the 1st Circuit Court of Appeals held that the exclusion of religious schools in Maine hinges on whether the money is used for religious instruction and to proselytize, rather than simply on whether the school was religious. Whether “use” is different from “identity” seems to be a distinction without much of a difference. 

Briefing by the parties and amicus groups will begin in September.

Once again, the Supreme Court and lower courts are in the spotlight as guardians not just of First Amendment rights in general but also specifically of religious liberty. Soon enough, we will see if they can continue to take the heat.

Andrea Picciotti-Bayer is the director of the Conscience Project.