The Brandywine Review

Commentary on American law

Education Law

Education Law

For roughly a decade, the fight over school voucher programs ran mostly through the Free Exercise Clause, and the Supreme Court kept narrowing the room a state had to stay out of it. In Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), the Court held that once a state funds a scholarship program for private education, excluding religious schools from that program violates the Free Exercise Clause; Montana's no-aid provision, a descendant of the nineteenth century Blaine Amendments adopted across dozens of states, could not be applied to exclude them. Two years later, Carson v. Makin, 596 U.S. 767 (2022), closed the remaining gap: Maine's tuition program for towns without a public secondary school could not condition payment on a school being nonsectarian either. Together the two rulings removed, as a practical matter, the main federal argument that had been available against voucher and tuition assistance programs.

That leaves state constitutional law to do the work, and state constitutions do not agree with each other. Indiana's Choice Scholarship Program survived a challenge that reached the state's highest court in Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013), which read the state's education clause, Article 8, Section 1, as a floor rather than a ceiling: a legislature's duty to fund a uniform system of common schools does not forbid it from funding something else besides. Florida's Opportunity Scholarship Program did not survive the equivalent argument. In Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), the state supreme court read Florida's uniformity clause, Article IX, Section 1, as exclusive, holding that a program funneling public tuition money to private schools operating outside the state's uniform system undermines the constitutional mandate to maintain that system rather than merely supplementing it.

Nothing in Espinoza or Carson touches that disagreement, because the disagreement was never about religion. It is about whether a state charged with maintaining a uniform public system has, by that duty alone, promised something closer to exclusivity than Indiana's court was willing to find. Anyone trying to predict whether a new voucher program will survive in a particular state gets little useful guidance from the federal cases at this point; the real work is reading that state's own common schools or uniformity clause the way its own courts already read it, and those readings split along lines older than the current wave of litigation by a century.

A separate strand of education law has nothing to do with who funds private alternatives; it asks what a public school must itself provide to a child with a disability. The Individuals with Disabilities Education Act, 20 U.S.C. ยง 1400 et seq., promises a free appropriate public education, and in Endrew F. v. Douglas County School District, 580 U.S. 386 (2017), a unanimous Court rejected the "merely more than de minimis" standard some circuits had applied and instead required an individualized program reasonably calculated to enable the child to make progress appropriate to his own circumstances. Chief Justice Roberts declined to reduce that standard to a formula, so its practical content still gets argued case by case, disability by disability, hearing officer by hearing officer.

The third strand asks how far school authority reaches once a student leaves school grounds, and here the Court has left the most open ground of all. Mahanoy Area School District v. B.L., 594 U.S. 180 (2021), held eight to one that a school could not punish a student for a profane Snapchat post sent off campus over a roster decision, but Justice Breyer's opinion was explicit that it was not announcing a general rule. It offered three reasons off campus speech usually sits outside school authority: such speech is normally a matter of parental rather than school responsibility, a school that could regulate speech both on and off campus would effectively hold students in its jurisdiction for the full day, and schools have their own interest in tolerating unpopular speech because they function, in Breyer's phrase, as the nurseries of democracy.

What the opinion did not do is say when those reasons give way; the litigants' briefing had pointed to serious bullying, threats and cheating as likely exceptions, but the Court did not adopt any of them as a rule. Lower courts have been left to work out where speech aimed at a school community, but posted from a bedroom, crosses back into the territory Tinker's substantial disruption test was written to cover.