As more states have enacted robust school-choice policies that allow parents to use taxpayer funds to pay for a child to attend private school, some critics have claimed participation in those programs puts private schools in danger of a de facto state takeover.

But a leading national legal expert says that is not the case.

“In the parental-choice context, the law is clear,” said Nicole Stelle Garnett, the John P. Murphy Foundation Professor of Law at the University of Notre Dame. “The government creates a private-school choice program. It may not only give parents the option of sending their kids to religious schools with public funds, it must give them that option. The government cannot exclude schools from a private-school choice program, either because they are religious or because they do religious things. And it cannot require them to secularize their educational programs or spend choice funds only on secular activities and instruction as a condition of participating.”

Garnett made her comments as keynote speaker for “Church and State: Reimagining Faith Communities’ Role in K–12 Education,” an event recently hosted by the American Enterprise Institute.

Oklahoma has several school-choice programs with the Oklahoma Parental Choice Tax Credit Program being the most expansive. That program provides refundable tax credits of $5,000 to $7,500 per child to help Oklahoma families cover the cost of private school tuition. The lower a family’s income, the larger the tax credit. All families are eligible for the program.

However, some opponents have claimed private schools face the loss of autonomy if they accept students who pay for school using the tax credits.

Jenni White, education director for Reclaim Oklahoma Parent Empowerment, was among those leveling that charge after the Oklahoma Parental Choice Tax Credit program became law.

“It should go without saying that the more education becomes funded by a governmental entity, the more controlled it is by the government and the less free parents are to decide what is truly best for their child/children’s education,” White wrote.

However, Garnett noted that several U.S. Supreme Court decisions have removed justification for many of those concerns.

Trinity Lutheran Church of Columbia, Inc. v. Comer, a 2017 decision of the U.S. Supreme Court, declared unconstitutional a Missouri policy barring churches from receiving state financial grants to install softer playground surfaces made from recycled tires.

In Espinoza v. Montana Department of Revenue in 2020, the U.S. Supreme Court declared unconstitutional Montana’s practice of barring families from using a tax-credit scholarship for attendance at a private religious school.

The U.S. Supreme Court reached a similar conclusion in 2022 in Carson v. Makin, which dealt with a Maine program providing tuition assistance for parents in rural school districts that lacked a secondary school. Maine officials argued that funds could not go to schools that mandated religious instruction as part of the curriculum.

Blaine Amendments Now ‘A Dead Letter’

Garnett said the three decisions not only make clear that school-choice programs are allowed under the U.S. Constitution but also negate the “Blaine” provisions incorporated into many state constitutions, including Oklahoma’s constitution. Those provisions ban the use of taxpayer funds for any “sectarian” institution.

“In the past few years, the (U.S.) Supreme Court has effectively taken Blaine amendments off the constitutional table,” Garnett said. “The Supreme Court has made clear in a series of decisions that the First Amendment’s religion-neutrality mandate runs both ways. The establishment clause prohibits the government from favoring religion, and the free-exercise clause prohibits the government from disfavoring it.”

She said the court’s decisions have made state Blaine amendments “a dead letter by making clear that they cannot be used to justify religious discrimination.”

Garnett noted that federal courts have also found that school-choice programs cannot be used by the state to justify dictating employment decisions at private schools that accept students who use vouchers to pay for tuition.

Today, federal and most states’ courts have upheld school choice programs so long as the programs are religiously neutral and parents control what school receives funds.

That has been the case in Oklahoma.

In Oklahoma, the Lindsey Nicole Henry Scholarships for Students with Disabilities (LNH) program provides scholarships to students with special needs and foster children, allowing them to use tax funds to attend private schools. Opponents filed a lawsuit, arguing the program violated the “Blaine” amendment in Oklahoma’s state constitution.

But the Oklahoma Supreme Court upheld the legality of the LNH program, ruling in 2016, “When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken” [emphasis in original].

Due to multiple court rulings at both the state and federal level, Garnett said the expansion of school-choice programs has not undermined the autonomy of participating private schools.

“Religious schools not only can participate in private-school choice programs, but must be permitted to do so,” Garnett said. “In most cases, the government not only does, on the ground, respect religious liberty and the autonomy of participating schools, but in some circumstances, such as the employment of teachers and other issues core to church autonomy, cannot interfere at all.”

Garnett’s observations align with how events played out in Oklahoma when a former state politician attempted to undermine the autonomy of private schools.

As enacted in 2010, the LNH law includes a provision mandating that participating private schools cannot discriminate “on the ground of race, color, or national origin.”

However, during the administration of State Superintendent of Public Instruction Joy Hofmeister, who was the 2022 Democratic nominee for governor, the Oklahoma State Department of Education (OSDE) unilaterally rewrote LNH regulations to also bar discrimination based on sexual orientation and religious affiliation.

The revised regulations effectively required private religious schools who adhere to traditional Christian teaching to nonetheless hire atheists as teachers and/or abandon student code-of-conduct requirements regarding sexuality and marriage, or else forgo serving LNH students.

But an official opinion issued on Dec. 3, 2020, by the office of then-Attorney General Mike Hunter concluded the Oklahoma State Department of Education’s LNH revisions were illegal. The opinion concluded the OSDE rule “misinterprets both federal law and the statute authorizing the Henry Program, and was therefore beyond the authority of the Department to promulgate under the Administrative Procedures Act.”

Today, Garnett said most legal concerns related to school-choice programs and the federal constitutional “establishment clause” provision regarding state support of religion have been addressed, meaning school-choice advocates have a great opportunity to serve more children.

‘The School-Choice Moment’

“We are in a school-choice moment, the school-choice moment,” Garnett said. “After more than three decades of incremental growth, the tide has turned in the battle for parental choice in education. Since 2020, 12 states—Alabama, Arizona, Arkansas, Florida, Indiana, Iowa, Louisiana, North Carolina, Ohio, Oklahoma, Utah, and West Virginia—have adopted new programs or expanded old ones to make all or most students in the state eligible to participate.”

Nationwide, 30 states now have at least one school-choice program that helps some families pay for private school education.

Today, Garnett noted there are roughly one million children participating in a private-school choice program and 20 million nationwide are eligible to participate in a private-school choice program, about 36 percent of all students in the country.

The question facing religious private schools today is not whether the government will effectively seize control of those schools, she said, but instead whether private school leaders will rise to meet the needs of the public.

“If school choice is to succeed, we need more and better schools to participate in these programs,” Garnett said. “We need more affordable faith-based schools serving low-and-moderate income kids, in particular. We don’t need to just fill empty seats in existing private schools. We need more seats and more schools.”

She noted that most secular private schools in the United States have annual tuition of roughly $20,000 per student. In contrast, the average tuition at most faith-based schools is $10,000.

Notably, the tuition at most private Christian schools in Oklahoma is less than the per-pupil funding provided to traditional public schools.

According to Oklahoma State Department of Education data from the Oklahoma Cost Accounting System, public school district expenditures in 2023 totaled $9,538,453,992, and enrollment in the 2022-2023 school year totaled 701,066 students. That means Oklahoma public schools had an average of $13,605 per student that year.

Yet private religious schools often provide much better bang for the buck, producing a higher-quality education at lower cost than traditional public schools.

Garnett noted that research “tells us that religious schools excel at educating kids, especially kids that come from modest and even quite-difficult backgrounds.”

And she said the benefits of an education at a religious private school go beyond academic improvement.

Garnett said research shows children who participate in a private-school choice program “are more likely to stay in school, graduate from high school, graduate from college, get jobs, get married, stay married, and become productive citizens.”

She urged private-school leaders to think big and meet the growing parental demand for school choice.

“When parental-choice resources become available, we need—and religious leaders in particular, perhaps—need to resolve to reopen closed schools, to open new schools, and to welcome the kids that are toughest to educate,” Garnett said, “to prove to the world that choice can transform lives and communities.”