New Issue Brief: Rooting Out Unconstitutional Restrictions Against Religion in Education

NEW YORK, NY – In recent decades, the U.S. Supreme Court has issued several decisions, including Trinity Lutheran Church v. Comer, Espinoza v. Montana Dept. of Revenue, and Carson v. Makin, that have reshaped how the First Amendment’s religious freedom clauses apply in education. In these cases, the Court repeatedly affirmed that the First Amendment prohibits religious discrimination in public programs. These decisions right the errors of past decisions, including in Lemon v. Kurtzman, which incorrectly concluded that publicly funded services for students in private schools must be “secular, neutral, and nonideological.” Since then, the Court has overturned the Lemon decision and clarified that the Constitution requires government neutrality, not hostility, toward religion. Yet the now defunct and discredited language of Lemon still pervades federal and state education law, resulting in unconstitutional religious discrimination. 

In a new Manhattan Institute issue brief, senior fellow Nicole Stelle Garnett and Sean Tehan, a recent graduate of Notre Dame Law School, explain why the “secular, neutral, and nonideological” restriction conflicts with the First Amendment’s religious nondiscrimination mandate. Specifically, they highlight how federal statutes such as the Elementary and Secondary Education Act of 1965 (ESEA) and the Individuals with Disabilities Education Act (IDEA) enforce this unconstitutional language.  

The issue brief offers model legislation and straightforward solutions to root out religious discrimination from education law, including the following recommendations: 

• Education Secretary Linda McMahon should issue a letter clarifying that the “secular, neutral, and nonideological” requirement is unconstitutional as applied to privately provided, federally funded, educational services for private-school students and that the department will no longer enforce it. 
• The Secretary should also issue regulatory guidance directing states and school districts to refrain from enforcing these requirements in their contracts with private service providers. 
• The Department of Education should undertake a comprehensive review of all restrictions on private grant recipients and cease enforcement of those that unconstitutionally discriminate against religion. 
• Congress should remove the “secular, neutral, and nonideological” requirement from the U.S. Code. 
• States should similarly take steps to ensure that unconstitutional religious restrictions on publicly funded educational services are not enforced.
   

Click here to read the full issue brief.