School Funding Under the Neutrality Principle: Notes on a Post-Espinoza Future

88 Fordham L. Rev. Online 213 (2020)

Fordham Law Legal Studies Research Paper No. 3622202

17 Pages Posted: 12 Jun 2020

See all articles by Aaron J. Saiger

Aaron J. Saiger

Fordham University School of Law

Date Written: June 8, 2020


The Supreme Court reads the Constitution to accord only grudging permission to families that wish to exit from the free, public school system. They must be allowed to do so, but only on the condition that they arrange and pay for a private alternative. This effectively creates a subsidy for government-run schools relative to private schools—85% of which are religious.

Two First Amendment rules—that publicly provided schools must be secular, and that the state may not prefer irreligion to religion—suggest that such a preferential subsidy for secular over religious education should not be permitted. Such a result, however, conflicts head-on with the idea of the “common school,” which forms the small-c constitution of American education. Advocates of the common school sought and still seek to create free public schools that homogenize and standardize schoolchildren in a “common” political culture. These two sets of constitutional principles are in deep tension. First Amendment neutrality requires the state to abjure any opinion when it comes to religion. Common schooling, by contrast, is all about the state having opinions.

In a slow-moving series of Supreme Court cases, this tension appears to be coming to a head. In Zelman v. Simmons-Harris (2002), the Supreme Court held that the First Amendment permits states to use public money to offset religious school tuition, so long as religious schooling is freely chosen by parents. In a case on the Court’s current docket, Espinoza v. Montana Department of Revenue, the Court will decide whether religious schools must be permitted to receive such subventions on the same basis as any other private school. Neither Zelman nor Espinoza challenges the public-school subsidy, but plaintiffs’ arguments in both make it more tenuous. Indeed, legality of the subsidy was questioned during the Espinoza oral argument at the Supreme Court. This Essay argues that, given current trends on the Court and especially if the Espinoza plaintiffs prevail, neutrality arguments against the subsidy have increasing heft. Those who advocate the values associated with common schooling should begin to think about how they might adapt were it to be abolished.

Keywords: religious schools; private schools; parochial schools; regulation of religious schools; free exercise; First Amendment; substantive due process; educational liberty; school choice

Suggested Citation

Saiger, Aaron J., School Funding Under the Neutrality Principle: Notes on a Post-Espinoza Future (June 8, 2020). 88 Fordham L. Rev. Online 213 (2020), Fordham Law Legal Studies Research Paper No. 3622202, Available at SSRN:

Aaron J. Saiger (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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