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The Coming Legal Battles Over How To Fund Religious Schools and Where They Can Locate

Written by Noel Sterett on May 29, 2020 Category: First Amendment, Illinois Land Use and Zoning, Nonprofits, Religious Institutions, RLUIPA

The pandemic forced public and private schools all across the country to close early. In response, many parents had to quickly adapt to alternative ways to educate their children. Some discovered the benefits and challenges of homeschooling. Others turned to virtual classrooms and courses taught by online teachers. All of these new experiences expanded parents’ educational horizons.

And while most parents cannot wait for the public schools to reopen in the fall, some are taking this opportunity to permanently change the direction of their children’s education. In a recent New York Times interview, Kevin Carey, Vice President for Education Policy and Knowledge Management at New America, explained how the pandemic has created “a vast unplanned experiment in mass home-schooling.” As with all experiments, some have failed and some have succeeded. Those that have succeeded and experienced the benefit of home schooling, or some other form of private education, may very well decide to continue in this direction.

If we are truly on the verge of a massive shift in how Americans educate their children, there is a tremendous opportunity for those willing and able to meet the demand for private education alternatives. Some may wish to form homeschooling cooperatives. Others may wish to establish a new private school or expand an existing one. Churches and other religious communities, which have historically led the way in establishing new schools, may lead the way again.

The main obstacle to starting something new or expanding an existing school is funding. State shutdown orders have strained the budgets of parents and private schools alike. In fact, a number of Catholic schools across the country have already announced that they lack the funding to reopen in the fall. But with the United States Supreme Court set to rule in a key school choice case (Espinoza v. Montana Department of Revenue), we may soon see states begin to enact a host of school-choice initiatives. These initiatives could free parents up to direct funds to the private schools of their choosing, including religious schools. This in turn could make religious schools a more affordable option for parents and lead to significant growth in the number and size of religious schools. All in all, we could very well see a boom in private, religiously affiliated education options across the country.

Another obstacle will be zoning 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 (local government) treat public schools better than private religious schools? How much will municipalities allow existing private schools to expand to accommodate more students? How will municipalities regulate home-school cooperatives?

At Dalton & Tomich, we are seeing an increase in the number of religious land use cases that we file on behalf of religious schools, which have been denied the land use approvals they need to locate, operate, or expand in a 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.

Free School Land Use & Zoning Guide

Have you recently purchased a building or land and discovered you can’t use it because it isn’t zoned for religious assembly? Learn how to navigate the process and win the right to use your property.

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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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