Hundreds of thousands of parents across the country just learned that their local public schools will be closing. In Chicago alone, 330,000 students will be denied in-person instruction. Panicked parents, who are already familiar with the difficulties and inadequacies of remote learning, are looking for alternative ways to educate their children—just as many parents did last time schools closed during the pandemic. In the 2020-2021 school year, public school enrollments decreased by over 1 million students.
This new round of school closings will only serve to increase the demand for education alternatives. Churches and other religious communities, which have historically led the way in establishing new schools, are poised to step into the gap. But as they establish new schools or expand existing ones, there will likely be legal battles at both the state and local levels.
The legal battle at the state level will be over funding. Many states have recently enacted or are actively considering school-choice initiatives to provide parents and students with more education alternatives. These initiatives are often designed to free parents up to direct their education dollars to the private schools of their choosing, including religious schools. This in turn makes religious schools a more affordable option for parents and will likely lead to significant growth in the number and size of religious schools.
The United States Supreme Court has recently heard two cases involving religious schools and state education dollars. In Espinoza v. Montana Department of Revenue, the Supreme Court held that a state cannot exclude religious schools from an otherwise generally available benefit on account of the school’s religious character. Chief Justice Roberts wrote, “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.” Late last year, the Supreme Court heard oral argument in Carson v. Makin, which involves the State of Maine’s tuition assistance program that makes funds available to help eligible families send their children to a school of their choice—unless the State deems the school to be too religious or “sectarian.” This exclusion particularly harms poor, religious families living in rural school districts in Maine that lack a public high school. These otherwise eligible families are compelled by law to enroll their children in school but cannot choose to use the tuition-assistance funds to enroll their children in a “sectarian” school. While this case has yet to be decided, a majority of the justices appeared to be troubled by Maine’s discriminatory exclusion of religious schools.
At the local level, the main obstacle new or expanding schools will face will be zoning and land use restrictions. With each new school or institution that is founded or expanded to meet the growing enrollments, there will be significant land use issues. Where will new schools be allowed to locate? Can a municipality treat public schools better than private religious schools? How much will municipalities allow existing private schools to expand to accommodate more students?
At Dalton & Tomich, we are seeing an increase in the number of religious land use cases involving religious schools that have been denied the land use approvals they need to serve the community. Far too many school leaders are completely unaware of the substantial protections religious schools are afforded under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA). This is exactly why we have written a guide to help religious schools better understand and assert their rights.
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If you are looking to establish a new school, or if your religious school is seeking to expand its campus or add on to existing facilities, you need to be aware of how RLUIPA protects religious institutions against burdensome and discriminatory land use regulations.
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In my role as Administrative Bishop for the Church of God, quite often we are faced with issues that involve local governments and municipalities. Many of these issues that arise in dealing with entities are land use related. I have found Dalton & Tomich’s experience and expertise in this area to be a valuable resource and asset in every situation.
Never one time during a year-long litigation process did Dalton & Tomich demonstrate anything other than Christ-like professionalism. They managed the legal details, while we continued to do church. How they managed themselves, managed our case, and represented our church set the table for me and our church to be where we are today.
Dalton & Tomich’s expertise and experience helped us through a very difficult legal journey, ultimately achieving a favorable outcome. Their personal interest in helping us went “above and beyond” just the call of duty.