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LAW SUMMARY
Sarah Stich*
I. Introduction
For years, a Columbia, Missouri, family watched helplessly as their daughter struggled with severe anxiety in her public school.[1] Despite living in the Columbia school district, their residence outside city limits left them ineligible for existing school choice programs.[2] Private schools offering specialized programs remained financially out of reach, and they had no choice but to watch their child continue to struggle.[3] “We were forced to watch our daughter suffer with no options to choose how she received her education,” the father recalled.[4] Their experience exemplifies how rigid educational funding restrictions can trap families between their children’s needs and their financial realities—a situation that Missouri’s Senate Bill 727 sought to address through expanded school choice.[5]
The history of school choice, however, is not limited to concerns for mental health. School choice voucher programs (“Vouchers”), which enable public education funds to be used for private school tuition, have evolved from controversial educational experiments of the 1990s into a central battleground for religious liberty.[6] These controversial programs, once challenged primarily on Establishment Clause grounds, now face a transformed legal landscape where religious exclusion, rather than inclusion, raises constitutional concerns. In Missouri, Senate Bill 727, enacted during the 2024 legislative session, illustrates this transformation by creating an innovative tax credit scholarship program that includes religious schools despite the state’s restrictive constitutional provisions.[7]
The bill’s proponents argue it provides crucial educational alternatives for Missouri families, particularly those in underperforming school districts or with students with special educational needs.[8] However, the inclusion of religious schools in SB 727 directly conflicts with Missouri’s strict constitutional provisions regarding the separation of church and state.[9] Article IX, section 8 of the Missouri Constitution explicitly prohibits both direct and indirect public funding of religious institutions, presenting one of the nation’s strongest barriers to religious school participation in choice programs.[10] This conflict between state constitutional restrictions and federal Free Exercise protections demonstrates the national struggle to reconcile historical constitutional limitations with remerging religious liberty requirements.
This Note examines how recent Supreme Court decisions have transformed school choice programs from an Establishment Clause concern into a Free Exercise red flag using Missouri’s experience as a lens to understand this change. Part I traces the legal background of school choice voucher programs, analyzing how the Supreme Court has fundamentally reshaped the constitutional framework. Part II explores recent developments in school choice legislation nationwide, with particular attention to post-Carson expansions and Missouri’s innovative approach to constitutional compliance through tax credit scholarships. Part III analyzes three key parts of modern voucher implementation: (1) how states have adapted varying constitutional frameworks to meet new Free Exercise requirements, (2) Missouri’s direct constitutional conflict and potential resolutions, and (3) how the merging of religious liberty protections with educational choice is reshaping the future landscape of school choice programs. Finally, part IV considers how this transformation from Establishment Clause restrictions to Free Exercise protection may fundamentally alter how states approach education funding and delivery.
II. Legal Background
The intersection of religious liberty and educational funding rests upon two key provisions of the First Amendment: the Establishment Clause and the Free Exercise Clause.[11] These constitutional guarantees create the fundamental legal framework that both constrains and shapes modern school choice programs.[12]
The Establishment Clause prohibits Congress from making any law “respecting an establishment of religion.”[13] Throughout most of the twentieth century, courts interpreted this prohibition to impose significant limitations on government aid flowing to religious educational institutions.[14] The Supreme Court developed various analytical frameworks to determine when such assistance crossed constitutional boundaries, generally subjecting programs benefiting religious elementary and secondary schools to greater scrutiny than those aiding religious higher education institutions.[15]
The Free Exercise Clause, which prohibits government interference with religious practice, initially played a secondary role in educational funding jurisprudence.[16] However, Free Exercise principles have recently gained momentum in school choice cases, fundamentally altering the constitutional landscape for these programs.[17] This evolution represents a significant reorientation in how courts balance the competing demands of these two religious liberty provisions.[18]
A. School Voucher Programs
The origins of school choice programs in the United States can be traced to early educational initiatives and civil rights challenges.[19] The modern legal framework for vouchers emerged in response to the landmark Brown v. Board of Education decision in 1954.[20] In Brown, the Supreme Court ruled that state-mandated segregation of public schools violated the Equal Protection Clause of the Fourteenth Amendment.[21] Following Brown, several southern states enacted tuition grant laws.[22] These laws were primarily designed as mechanisms to evade desegregation.[23] The grants allowed white students to attend private segregated schools using public funds, which effectively circumvented the Court’s mandate for integrated public education.[24]
As courts dealt with these early voucher programs, their focus shifted from pure desegregation concerns to questions of religious establishment.[25] This shift occurred as private religious schools, particularly Catholic institutions, began to play a larger role in alternative education systems, raising Establishment Clause concerns about public funding flowing to religious institutions.[26] This evolution led to the development of the Lemon test in 1971, which established a three-pronged framework for evaluating Establishment Clause challenges.[27] In Lemon v. Kurtzman, the Court examined Pennsylvania and Rhode Island statutes that provided state funding for teacher salaries and educational materials in private religious schools.[28] Chief Justice Burger, writing for the majority, synthesized previous Establishment Clause decisions to draft the test.[29] Under this doctrine, (1) the statute must have a secular legislative purpose; (2) its principal effect must neither advance nor inhibit religion; and (3) the statute must not foster excessive government entanglement with religion.[30]
The Supreme Court fundamentally reshaped the legal framework for voucher programs through three landmark decisions expanding religious schools’ access to public funding.[31] First, in Zelman v. Simmons-Harris (2002), the Court upheld Cleveland, Ohio’s voucher program.[32] The Cleveland program, created in response to a federal court order placing the city’s failing public school system under state control, provided tuition aid for students to attend participating public or private schools of their parent’s choosing.[33] Participating private schools were required to cap tuition at $2,500 per student and accept the voucher as full payment for low-income families.[34]
At the time of the lawsuit, 96% of participating students attended religious schools, raising significant Establishment Clause concerns.[35] The Court found the program served a valid secular purpose of providing educational assistance to poor children in a “demonstrably failing public school system.”[36] The Court emphasized that the program achieved this purpose through neutral means concerning religion because it assisted a broad class of citizens who directed aid to religious schools entirely through their own “genuine and independent private choice.”[37]
In two subsequent cases, a significant shift occurred as the Free Exercise Clause moved to the forefront of the Court’s analysis.[38] The Free Exercise Clause protects religious observers against unequal treatment and laws that impose special disabilities based on religious status.[39] Applying these principles in Trinity Lutheran v. Comer (2017), the Court examined Missouri’s categorical exclusion of churches from a state program that offered reimbursement grants to nonprofit organizations for purchasing playground surfaces made from recycled tires.[40] Trinity Lutheran Church operated a licensed preschool and daycare center that was initially ranked fifth among forty-four grant applicants but was denied solely because it was a church.[41] The Court ruled that Missouri violated the Free Exercise Clause by denying the church access to a public playground safety grant program solely because of its religious status.[42]
The Court expanded this principle in Espinoza v. Montana Department of Revenue (2020). The case arose from Montana’s tax credit scholarship program, which provided a tax credit of up to $150 for donations to organizations that awarded scholarships for private school tuition.[43] The Montana Department of Revenue prohibited using these scholarships at religious schools, citing the state constitution’s “no-aid” provision, which prohibited direct or indirect appropriation or payment from any public fund to aid any school controlled in whole or in part by a church, sect, or denomination.[44] Three mothers who were denied scholarships to send their children to a Christian school challenged this restriction.[45] The Court prohibited states from excluding religious schools from generally available school choice programs based on their religious character.[46] While these decisions cleared federal constitutional hurdles for voucher programs, significant challenges remained at the state level through restrictive constitutional provisions that specifically prohibited public funding for religious institutions.[47]
The Espinoza decision initiated substantial changes in state voucher programs nationwide.[48] The Court invalidated Montana’s “no-aid” provision, one of many state constitutional amendments (known as “Blaine Amendments”) adopted in the late 1800s that specifically prohibited public funding for religious schools.[49] These state constitutional provisions, fueled by anti-Catholic sentiment, had created significant barriers to religious schools’ participation in state funding programs.[50] States responded to Espinoza by actively amending their school choice programs to include religious schools previously excluded under their Blaine Amendments.[51] This expansion has particularly impacted states that had historically secular-only funding programs, as reinforced by later Supreme Court decisions like Carson v. Makin.[52]
B. State Constitutional Challenges
1. The Blaine Amendment Challenge
The Blaine Amendments’ history helps explain their continuing impact on voucher programs. The movement began in the 1870s with Congressman James G. Blaine’s proposed federal constitutional amendment.[53] Blaine’s amendment sought to prevent public funding of religious schools, especially Catholic parochial schools during a period of significant Catholic immigration.[54] While the federal amendment failed in the Senate, many states subsequently incorporated similar restrictions into their constitutions, often as a condition of entering the Union, creating complex state-level restrictions on religious school funding.[55]
These state constitutional restrictions create two distinct constitutional tensions for modern voucher programs. First, states attempting to enforce their Blaine Amendments by prohibiting vouchers face challenges under the Free Exercise principles established in Trinity Lutheran and Espinoza; even if states need not subsidize private education, they cannot exclude otherwise eligible religious schools from public benefit programs solely because of their religious status.[56] On the other hand, states that grant vouchers must still satisfy the federal Establishment Clause requirements given in Zelman, which mandate that programs maintain neutrality toward religion and operate through true private choice.[57]
2. State Court Interpretations
State courts have reached varying conclusions when analyzing voucher programs under their constitutions.[58] The Wisconsin Supreme Court in Jackson v. Benson (1998) upheld Milwaukee’s voucher program, finding it satisfied both federal Establishment Clause requirements and state constitutional provisions because the aid flowed through private choice.[59] In a different approach, the Florida Supreme Court in Bush v. Holmes (2006) examined the state’s Opportunity Scholarship Program, which provided vouchers to students in failing public schools to attend private schools.[60] In 2006, approximately 750 students participated in the program, with most attending religious schools.[61] The Florida Supreme Court invalidated the program on different grounds, holding it violated the state constitution’s requirement for a uniform system of public schools by creating an alternative education system funded by public dollars.[62]
3. Missouri’s Constitutional Framework
Missouri’s Constitution presents particularly strict barriers to religious school choice programs through two key constitutional provisions.[63] Article I, section 7 prohibits using public funds for religious purposes.[64] In addition, article IX, section 8 prohibits public funding for religious institutions.[65] Missouri courts have historically interpreted these provisions strictly, meaning they have applied the prohibitions with little to no exceptions or flexibility.[66] For example, in Paster v. Tussey, the Missouri Supreme Court examined a textbook program that provided public funding for textbooks used in religious schools.[67] The court held that this program violated article IX, section 8, reinforcing the strict application of the constitutional prohibitions.[68]
However, the landscape has shifted dramatically following recent United States Supreme Court decisions.[69] After Trinity Lutheran and Espinoza, Missouri’s ability to enforce its constitutional ban on religious funding has been significantly limited.[70] These decisions require that if Missouri implements school choice programs, it cannot exclude religious schools solely based on their religious status.[71] As a result, any similar program, whether through vouchers, tax credits, or other mechanisms, must allow participating families to select from both secular and religious schools.[72] In 2024, Missouri enacted Senate Bill 727, which includes provisions addressing the interaction between state constitutional restrictions on funding religious schools and recent U.S. Supreme Court rulings concerning school choice and the Establishment Clause.[73]
III. Recent Developments
Building upon this evolving constitutional framework, the landscape of school choice programs has undergone significant transformation in the last four years.[74] The U.S. Supreme Court has noted that moving beyond the historical constraints of Blaine Amendments and varying state court interpretations, states have implemented expanded voucher programs, new funding mechanisms, and evolving legal frameworks at both the federal and state levels.[75]
A. Expanding School Choice After Zelman
Even before recent Supreme Court decisions clarified religious schools’ access to public funding, a number of states had already begun adopting more expansive school choice programs that included private and religious options.[76] In 2021, West Virginia introduced the Hope Scholarship Program.[77] This program allows eligible students to receive an amount of state funding approximately equal to what they would receive in per-pupil support under West Virginia’s public school aid formula, for use toward private education expenses such as tuition and curriculum costs.[78] The amount awarded depends on the date of application, with students who apply earlier receiving a higher percentage of the total scholarship amount.[79] This early development signaled a broader national movement towards more comprehensive and flexible educational choice options.[80]
B. Carson v. Makin (2022) and the Evolution of Religious Freedom in School Choice
The Supreme Court’s 2022 decision in Carson v. Makin marked an important extension of the protections established in Trinity Lutheran (2017) and Espinoza (2020).[81] In Carson, the Court examined Maine’s tuition assistance program, which provided funding for students in rural districts without public secondary schools to attend approved private schools, but excluded “sectarian” schools from participation.[82] Chief Justice Roberts, writing for the majority, found this exclusion violated the Free Exercise Clause, holding that Maine could not exclude religious schools from the program solely because they provided religious instruction or incorporated religion into their curriculum. [83] The ruling essentially closed potential loopholes that states might have used to maintain Blaine Amendment-era restrictions while technically complying with Trinity Lutheran and Espinoza.[84]
C. State Responses to the Evolving Legal Landscaping
Following Carson’s elimination of the distinction between religious status and religious use, states are no longer permitted to exclude religious schools from generally available school choice programs.[85] Arizona’s legislature led the post-Carson expansion by significantly broadening its Empowerment Scholarship Account (ESA) program in 2022, extending eligibility to all K-12 students in the state.[86] The expansion drew political and public criticism, with opponents raising concerns about its fiscal sustainability and the inclusion of private and religious schools.[87] Supporters of the reform defended the program as a cost effective initiative that empowers families regardless of income or school preference.[88]
This expansion created a universal school choice program by making ESA funds available to all K-12 students, regardless of whether they attend religious or secular schools.[89] Under the expanded ESA program, any Arizona student eligible to enroll in a public school may receive public funding for private school tuition, homeschooling expenses, online learning, tutoring, or other qualifying educational services.[90]
In the years following Bush v. Holmes, Florida’s approach to school choice has shifted significantly.[91] Florida lawmakers consolidated multiple scholarship programs into a single system that provides education funding directly to families, rather than through the public school system.[92] Proponents of the consolidated structure argue that it preserves the uniformity of the public school system because funding is distributed based on parental choice, not direct state support for private institutions.[93] They also contend that the program advances a legitimate state interest in expanding educational opportunity while streamlining administration.[94]
Other states have also begun implementing similar consolidated programs encompassing a broader range of educational expenses beyond traditional private school tuition.[95] Today, thirty-two states, the District of Columbia, and Puerto Rico operate some form of private school choice program, marking a significant shift from the restrictive landscape that existed under state Blaine Amendments.[96] Recent reporting indicates that a growing number of states are consolidating and expanding their school choice programs, including the removal of prior restrictions that excluded religious schools from participation.[97]
D. Missouri’s Empowerment Scholarship Accounts Program
In response to this national trend, Missouri enacted Senate Bill 727 in 2024, creating the Empowerment Scholarship Accounts Program.[98] This program carefully navigates the state’s strict constitutional barriers to religious funding.[99] The legislature designed the program as a tax credit scholarship instead of a direct voucher to avoid providing direct aid to religious schools.[100] Under this framework, private donations to scholarship-granting organizations qualify for tax credits equal to one hundred percent of the contribution amount.[101]
The law provides that after donations are made, the granting organizations must provide scholarships to eligible students for use at participating private schools, including religious institutions previously excluded under Missouri’s constitutional provisions.[102] The statute authorizes students to receive up to $6,375 annually.[103] The legislation requires the program to prioritize students from low-income families and those with disabilities, similar to programs in other states that have survived constitutional challenges.[104]
While the tax credit structure attempts to avoid direct state funding, the program’s inclusion of religious schools creates an apparent conflict with Missouri’s constitutional prohibition on indirect aid to religious institutions that remains unresolved.[105] The program represents Missouri’s attempt to balance the current Supreme Court emphasis on religious liberty while working within the boundaries of state constitutional provisions that historically prohibited both direct and indirect aid to religious institutions.[106]
III. Discussion
The evolution of school choice programs transforms an Establishment Clause concern into a Free Exercise challenge. This transformation creates three fundamental challenges for the state education systems: (1) reconciling competing constitutional requirements, (2) preserving state educational policy autonomy, and (3) maintaining public education quality while expanding choice options. The following analysis proceeds through three dimensions. First, it surveys how states have implemented varying constitutional frameworks for voucher programs in response to evolving Supreme Court precedent, focusing on how different jurisdictions have adapted to the shift from religious exclusion to required inclusion. Second, it examines Missouri’s direct constitutional conflict created by SB 727 and the need to state constitutional provisions with federal Free Exercise requirements. Finally, it explores how the merger of religious liberty protections with educational choice advocacy is reshaping the future landscape of school choice programs nationwide, transforming religious freedom claims into a catalyst for broader educational reform.
A. Constitutional Framework for Voucher Implementation
The evolving landscape of school choice programs shows patterns of how states have adapted to the Supreme Court’s protection of religious liberty while still respecting constitutional boundaries.[107] Ohio’s Autism Scholarship Program, which provides vouchers for students with autism spectrum disorders, demonstrates how carefully targeted programs can successfully navigate this new constitutional framework while serving specific educational needs.[108] However, this targeted approach raises significant policy concerns. While it minimizes constitutional challenges by focusing on specific educational needs, it may perpetuate broader systemic inequities by creating isolated solutions rather than comprehensive reform.[109] Additionally, the program’s narrow focus fails to address the broader religious liberty protections now required under Carson.[110]
The strength of state constitutional barriers has significantly influenced implementation strategies for voucher programs,[111] creating an intersection between legal constraints and political realities.[112] The Milwaukee Parental Choice Program demonstrates how judicial interpretation can evolve to accommodate choice initiatives,[113] even in states with constitutional restrictions similar to historical Blaine Amendments.[114] Unlike Ohio’s targeted approach, Milwaukee’s broader program serves low-income students across both religious and secular school option, which the Wisconsin Supreme Court ultimately upheld by focusing on the program’s neutral design and private choice mechanisms.[115] This flexible interpretation established a framework balancing religious inclusion with state oversight that other states would follow.[116]
Texas presents a contrasting case where relatively flexible constitutional language has proven insufficient to ensure program implementation.[117] Despite facing fewer legal barriers than Wisconsin or Ohio, Texas’s recent failed attempts at voucher legislation demonstrate how political opposition, particularly from rural communities concerned about public school funding, can override even favorable constitutional conditions.[118] The difference between Texas and Wisconsin demonstrates that successful implementation requires both constitutional navigation and political consensus.[119]
Vermont’s experience offers a distinct example of constitutional navigation that predates modern voucher debates.[120] The state’s town tuition program, established in 1869, originally allowed rural communities without public schools to pay for students’ attendance at secular private schools.[121] Carson v. Makin has fundamentally altered this framework by requiring the inclusion of religious schools in the program. [122] This shift has forced Vermont to adapt its system by expanding eligibility to religious schools while implementing safeguards to ensure public funds are not used for explicitly religious purposes.[123] Vermont’s adaptation illustrates how even long-established programs must now balance local educational needs with religious liberty protections.[124]
Arizona’s approach of using tax credit scholarships rather than direct vouchers illustrates how program design can navigate strict constitutional restrictions, similar to those used in Missouri.[125] While Montana’s program was ultimately validated through Espinoza, Arizona’s tax credit structure has proven easier to implement by avoiding direct constitutional confrontation with state Blaine Amendments through its indirect funding mechanism.[126] The Arizona Supreme Court’s acceptance of this mechanism, in addition to the U.S. Supreme Court’s acknowledgment that tax credits are fundamentally different from government expenditures, has provided guidelines for other states with strict constitutional barriers.[127] Arizona’s expansion to universal eligibility in 2022 demonstrates how initial program design can facilitate growth while avoiding constitutional challenges.[128] This experience offers guidance for states like Missouri that share similarly restrictive provisions.[129]
B. Application to Missouri
In Missouri’, SB 727 created a direct conflict between state and federal constitutional requirements rooted in the Blaine Amendment era and federal Free Exercise requirements.[130] The tension between Espinoza and Carson’s mandate not to exclude religious institutions and Missouri’s strict prohibition on direct and indirect funding to religious institutions parallels Montana’s pre-Espinoza framework.[131] However, in order to reconcile these tensions, Missouri must grapple with more explicit constitutional barriers than Montana.[132] Unlike Montana’s no-aid provision, Missouri’s constitution contains some of the nation’s strictest barriers to religious school funding, explicitly prohibiting both “direct and indirect” public funding of religious institutions.[133] These provisions stand in direct tension with Espinoza and Carson’s mandate that states cannot exclude religious schools from generally available benefit programs.[134] Therefore, Missouri’s current situation parallels Montana’s pre-Espinoza framework, with more explicit constitutional barriers at play.[135]
SB 727 establishes a tax credit scholarship framework that distributes funds through private donations to scholarship-granting organizations, with donors receiving dollar-for-dollar tax credits and scholarships awarded by intermediary nonprofits.[136] Unlike Arizona’s program, which survived constitutional scrutiny because tax credits were deemed distinct from government spending, Missouri’s explicit prohibition on indirect funding creates uncertainty about whether this distinction can withstand constitutional challenge.[137] Missouri’s state constitution contains some of the strictest prohibitions against public funding in religious schools, which may present challenges for expanding school choice programs post-Carson.[138]
Carson’s expansion of religious liberty protections leaves Missouri courts with three potential resolutions: they must either (1) narrowly interpret Article I, section 7 and Article IX, section 8 to allow religious school participation; (2) acknowledge that these provisions are partially inoperable under current federal requirements;[139] or (3) distinguish tax credits from prohibited indirect funding.[140] Each approach brings different policy implications for state educational autonomy and religious liberty protections.[141] Other states, like Vermont, have adapted their constitutional frameworks through similar interpretations.[142] Missouri’s resolution of this tension will likely provide important guidance for other states with similar restrictive constitutional provisions seeking to implement school choice programs in the post-Carson landscape.[143]
C. The Future of School Choice Vouchers and Tax Credits
The implementation of SB 727 reflects a fundamental shift in how courts and policymakers conceptualize the relationship between religious schools and public funding.[144] What began as an Establishment Clause concern about maintaining the separation of church and state has evolved into a Free Exercise mandate prohibiting religious discrimination in educational benefits.[145]
This transformation fundamentally reshapes the school choice landscape in ways that go beyond traditional policy debates. While earlier discussions focused primarily on concerns about public funds supporting religious education and the separation of church and state,[146] recent Supreme Court decisions have merged religious liberty protections with educational choice advocacy.[147] This merging moves religious inclusion from a constitutional barrier to a constitutional requirement, fundamentally altering how states approach education funding and delivery.[148]
The implications of this shift extend beyond religious schools.[149] Arizona’s expansion to universal school choice demonstrates how programs initially justified by religious liberty have evolved into comprehensive educational reform.[150] These changes suggest that religious freedom claims may serve as a legal foundation for expanding educational choice generally, even when religious education is not the primary focus.[151]
Looking forward, states face three major challenges: (1) determining what conditions they can impose on religious schools receiving public funds,[152] (2) reconciling state constitutional restrictions with federal requirements for religious inclusion,[153] and (3) developing accountability frameworks that respect both state oversight authority and religious autonomy.
IV. Conclusion
The Columbia, Missouri, family described in the introduction experienced firsthand the intersection of educational needs and constitutional principles when their daughter struggled with severe anxiety in public school while they remained ineligible for existing school choice programs. For this family and others similarly situated, Missouri’s Senate Bill 727 represents the latest development in a rapidly evolving legal landscape concerning educational funding and religious institutions.
The evolution of school choice programs, exemplified by Missouri’s SB 727, represents a fundamental transformation in the relationship between religious education and public funding. What began as an Establishment Clause concern has evolved into a Free Exercise question, reshaping how states must approach educational choice programs. The Supreme Court’s decisions in Trinity Lutheran, Espinoza, and particularly Carson have significantly altered the constitutional framework, requiring states to reconsider historical barriers to religious school funding rooted in the Blaine Amendment era.
This transformation presents complex implementation challenges for states with restrictive constitutional provisions. Missouri’s experience with SB 727 illustrates how states must navigate these challenges through various funding mechanisms while reconciling state constitutional prohibitions with federal Free Exercise requirements. The approaches taken by states like Arizona, Wisconsin, and Vermont demonstrate the range of possible implementation strategies states are exploring as they adapt to this new constitutional reality.
For families like the one in Columbia, these legal developments alter the educational landscape, potentially expanding access to institutions previously excluded from public funding streams. The legal shift has significant implications for how states design their educational systems and distribute limited public resources.
Looking forward, states must address several critical challenges: (1) determining appropriate conditions for religious school participation without infringing on religious autonomy, (2) reconciling traditional separation principles with federal requirements for religious inclusion, and (3) balancing religious accommodation with educational accountability. The resolution of these issues will likely shape not just the future of religious education but the broader landscape of educational choice in America.
The tension between state constitutional restrictions and federal Free Exercise requirements suggests that the legal framework for school choice programs will continue to evolve. As states like Missouri demonstrate, this evolution may require both policy innovation and reconsideration of longstanding constitutional interpretations. This ongoing development in American education law reflects the continuing challenge of balancing competing constitutional principles and diverse educational philosophies in a pluralistic society.
* BSEd., University of Missouri, 2021; J.D. Candidate, University of Missouri School of Law, 2026; Associate Member, Missouri Law Review, 2024-2025. I am grateful to Professor Alexander for her insight, guidance, and support during the writing of this Note. I would also like to thank Rachel Carlson and Christy Hoffmann for their invaluable editorial contributions, as well as the Missouri Law Review editorial staff for their assistance throughout the writing and editing process.
[1] John Potter, Kids are the winners with school choice becoming law in Missouri, Columbia Daily Tribune (June 13, 2024), https://www.columbiamissourian.com/opinion/guest_commentaries/kids-are-the-winners-with-schoolchoice-becoming-law-in-missouri/article_af54c86a-2986-11ef-a29b-0fd843694091.html.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Boomer Kennedy, Perspective | Debating school choice: A historical overview of private school vouchers, EdNC (Jan. 23, 2024), https://www.ednc.org/perspective-debating-school-choice-a-historical-overview-of-private-school-vouchers/ (discussing the first modern voucher program in the United States, which started in 1990 and targeted low-income students, allowing the students to use the vouchers to attend private schools).
[7] S. 727, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024).
[8] See Potter, supra note 1.
[9] Mo. Const. art. IX, § 8; see Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974) (en banc) (prohibiting any governmental unit from appropriating public funds to aid any religious creed or purpose).
[10] Mo. Const. art. IX, § 8.
[11] U.S. Const. amend. I., cl. 1 (Establishment Clause); U.S. Const. amend. I, cl. 2 (Free Exercise Clause).
[12] See Zelman v. Simmons-Harris, 536 U.S. 639, 648–49 (2002) (explaining that school choice programs must comply with both the Establishment and Free Exercise Clauses).
[13] U.S. Const. amend. I, cl. 1.
[14] See Everson v. Bd. of Educ., 330 U.S. 1, 15–16 (1947) (applying the Establishment Clause to state governments and emphasizing a strict separation of church and state in the context of public funding).
[15] See Tilton v. Richardson, 403 U.S. 672, 685–89 (1971) (upholding federal construction grants to religious colleges while imposing limitations on religious use); compare with Lemon v. Kurtzman, 403 U.S. 602, 625 (1971) (striking down aid to religious elementary and secondary schools due to excessive entanglement concerns).
[16] See Lemon, 403 U.S. at 612–13 (focusing primarily on Establishment Clause concerns in early educational funding cases without substantive Free Exercise analysis); see also Zelman, 536 U.S. 648–49 (maintaining focus on Establishment Clause considerations in upholding Cleveland’s voucher program).
[17] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 460–63 (2017); Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 467 (2020); Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022) (representing the Supreme Court’s increasing reliance on Free Exercise principles to invalidate restrictions on religious schools’ participation in educational funding programs).
[18] See infra note 22.
[19] See generally James Forman Jr., The Secret History of School Choice: How Progressives Got There First, 93 Geo. L.J. 1287, 1291–1300 (2005) (discussing the progressive and civil rights origins of school choice policies in the United States).
[20] Brown v. Bd. of Educ., 347 U.S. 483 (1954). The roots of private school voucher programs in America trace back to the town-tuitioning programs established by Vermont (1869) and Maine (1873). These programs allowed towns lacking public schools to pay tuition for their students to attend either public or approved private schools in neighboring districts. Vermont’s program, which continues today, represents the nation’s oldest existing voucher policy. These early programs prompted initial judicial examination of whether public funding flowing to religious institutions complied with the First Amendment’s Establishment Clause, which set important precedent for future voucher programs. See Anson Phelps Stokes & Leo Pfeffer, Church and State in the United States 229–30 (1964); see also Everson v. Bd. of Educ., 330 U.S. 1, 14–18 (1947) (providing early framework for analyzing public funding of religious education).
[21] Brown, 347 U.S. at 495 (overturning the “separate but equal” doctrine from Plessy v. Ferguson, 163 U.S. 537 (1896)).
[22] See Griffin v. County Sch. Bd., 377 U.S. 218 (1964) (striking down Virginia’s tuition grant system that used public funds to support private segregated schools as an unconstitutional scheme to avoid the mandate of Brown v. Board of Education).
[23] Id. at 224.
[24] Id. at 226.
[25] See Lemon v. Kurtzman, 403 U.S. 602 (1971).
[26] Id. at 622–24.
[27] Id. at 612–13.
[28] Id.
[29] Id.
[30] Id. (establishing the three-part test for Establishment Clause analysis and striking down Rhode Island and Pennsylvania statutes that provided state funding for teacher salaries at religious schools, finding they fostered “excessive entanglement between government and religion”).
[31] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 460–63 (2017); see also Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 467 (2020) (holding that states cannot exclude religious schools from generally available public benefit programs solely because of their religious character without violating the Free Exercise Clause).
[32] Zelman v. Simmons-Harris, 536 U.S. 639, 644 (2002).
[33] Id. at 644–45.
[34] Id. at 656, n.4.
[35] Id. at 647.
[36] Id. at 649.
[37] Id. at 652 (upholding Ohio’s voucher program and holding that where a government aid program is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program does not offend the Establishment Clause).
[38] See Carson v. Makin and the Dwindling Twilight of the Establishment Clause, ACS Law (June 22, 2022), https://www.acslaw.org/expertforum/carson-v-makin-and-the-dwindling-twilight-of-the-establishment-clause/ (noting that Carson and related cases have shifted the Court’s focus from the Establishment Clause to the Free Exercise Clause in evaluating school choice programs).
[39] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 460–63 (2017).
[40] Id. at 453–54, 460–63.
[41] Id. at 456.
[42] Id. at 466.
[43] Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 468 (2020).
[44] Id.
[45] Id. at 470–71.
[46] Id. at 487.
[47] Leslie Hiner, What the Espinoza Ruling Means for Blaine Amendments and School Choice, EdChoice (July 22, 2020), https://www.edchoice.org/what-the-espinoza-ruling-means-for-blaine-amendments-and-school-choice/ (documenting how states have expanded school choice programs to include religious schools following the Supreme Court’s decisions).
[48] Id.
[49] Espinoza, 591 U.S. 482.
[50] Hiner, supra note 47 (describing how Blaine Amendments historically barred religious institutions from receiving public funds).
[51] Id.
[52] Carson ex rel. O.C. v. Makin, 596 U.S. 767, 786 (2022) (reinforcing and extending Espinoza’s holding to programs that exclude schools based on religious use of funds).
[53] Steven K. Green, “Blaming Blaine”: Understanding the Blaine Amendment and the “No-Funding” Principle, 2 First Amend. L. Rev. 107, 128–29 (2003).
[54] Id. at 111.
[55] Marc D. Stern, Blaine Amendments, Anti-Catholicism and Catholic Dogma, 2 First Amend. L. Rev. 153, 158–59 (2003).
[56] Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 460–63 (2017); Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 485 (2020).
[57] Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).
[58] See generally Richard D. Komer & Olivia Grady, School Choice and State Constitutions 7–8 (Inst. for Just., 2d ed. 2017), https://ij.org/wp-content/uploads/2016/09/50-state-SC-report-2016-web.pdf (surveying state court decisions interpreting constitutional challenges to voucher and scholarship programs).
[59] Jackson v. Benson, 578 N.W.2d 602, 620 (Wis. 1998) (upholding Milwaukee’s voucher program against religious establishment challenges because the program was neutral towards religion and any aid reaching religious schools resulted from independent parental choice rather than state action).
[60] Bush v. Holmes, 919 So. 2d 392, 412–13 (Fla. 2006).
[61] Id.
[62] Id.
[63] Mo. Const. art. I, § 7; Mo. Const. art. IX, § 8.
[64] Mo. Const. art. I, § 7.
[65] Mo. Const. art. IX, § 8.
[66] See Komer & Grady, supra note 58, at59–60 (noting Missouri’s unusually strict constitutional barriers to religious school choice programs).
[67] Paster v. Tussey, 512 S.W.2d 97, 101–02 (Mo. 1974) (interpreting Missouri’s constitutional provisions as “more restrictive than the First Amendment” and establishing that Missouri’s prohibition on aid to religious institutions extends beyond direct funding to include any form of indirect assistance). This change made Missouri’s restrictions among the strictest in the nation before Trinity Lutheran. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 455–56 (2017).
[68] Paster, 512 S.W.2d at 104–05.
[69] See, e.g., Trinity Lutheran, 582 U.S. 449; Espinoza v. Mont. Dep’t. of Revenue, 591 U.S. 478 (2020); Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022) (marking the Court’s shift from permitting inclusion of religious schools in public benefit programs to requiring their inclusion under the Free Exercise Clause).
[70] Trinity Lutheran, 582 U.S. at 465–68 (directly addressing Missouri’s constitutional provisions and holding that Missouri’s attempt to enforce its constitutional barriers by excluding religious institutions from a neutral public benefit program “goes too far” and violates the Free Exercise Clause noting that Missouri’s interest in achieving greater separation of church and state than required by the federal Constitution “cannot qualify as compelling” when it requires discrimination against religious institutions).
[71] Id.
[72] Espinoza, 591 U.S. at 487–89.
[73] S. 727, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024); see also Espinoza, 591 U.S. at 487–89 (establishing the framework that states with restrictive constitutional provisions would need to follow).
[74] EdChoice, The ABCs of School Choice 173 (2023 ed. 2023) [hereinafter EdChoice 2023], https://www.edchoice.org/wp-content/uploads/2023/01/2023-ABCs-WEB.pdf.
[75] Id. at 167–80.
[76] Nicole Stelle Garnett & Richard W. Garnett, School Choice, the First Amendment, and Social Justice, 4 Tex. Rev. L. & Pol. 301, 301–05 (2000).
[77] W. Va. Code § 18-31-1 (2022).
[78] Id.
[79] Hope Scholarship W. Va., https://hopescholarshipwv.gov(last visited May 4, 2025).
[80] See EdChoice 2023, supra note 74, at 2.
[81] Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022).
[82] See id. at 775–76.
[83] Id. at 780–81.
[84] See EdChoice 2023, supra note 74, at 171 (analyzing Carson’s impact on remaining state-level restrictions on religious school participation).
[85] See Carson, 596 U.S. at 900–01 (holding that excluding religious uses from an otherwise generally available public benefit violates the Free Exercise Clause).
[86] Ariz. Rev. Stat. § 15-2402(C) (2023).
[87] Mary Jo Pitzl, Arizona’s Universal School Voucher Program Still Faces Legal Challenge, Ariz. Republic (Mar. 21, 2024), https://www.azcentral.com/story/news/politics/arizona-education/2023/05/31/arizona-private-school-voucher-program-esa-cost-hit-900-million/70273679007/.
[88] Id.
[89] Id.
[90] Ariz. Rev. Stat. Ann. § 15-2402(B)(4) (2023).
[91] Bush v. Holmes, 919 So. 2d 392, 412–13 (Fla. 2006).
[92] See About Step Up for Students, Step Up For Students, https://www.stepupforstudents.org/about-us/ (last visited May 3, 2025).
[93] Id.
[94] Id.
[95] See EdChoice 2023, supra note 74, at 9–12.
[96] EdChoice, The ABCs of School Choice 9 (2024) [hereinafter EdChoice 2024], https://www.edchoice.org/wp-content/uploads/2023/11/2024-ABCs-of-School-Choice.pdf.
[97] Id. at 184–96 (documenting the systematic removal of religious exclusions from state programs).
[98] See S. 727, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024).
[99] See S. 727, § 135.712.1, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024).
[100] Id.
[101] S. 727, § 135.713.1, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024).
[102] S. 727, § 135.713.2, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024).
[103] S. 727, § 135.714, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024)
[104] S. 727, § 135.716.2, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024) (defining priority for scholarship distribution).
[105] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017) (Sotomayor, J., dissenting) (noting the particularly strict nature of Missouri’s constitutional provisions against religious funding).
[106] See id. at 465–68 (majority opinion).
[107] See Carson ex rel. O.C. v. Makin, 596 U.S. 767, 779–81 (2022) (expanding religious schools’ access beyond previous status-based protections).
[108] Ohio Rev. Code § 3310.41(A) (2025).
[109] EdChoice 2024, supra note 98, at 9 (comparing outcomes between targeted and comprehensive programs).
[110] See Trinity Lutheran, 582 U.S. at 465.
[111] Jackson v. Benson, 578 N.W.2d 602, 620 (Wis. 1998) (analyzing various state approaches to constitutional restrictions on school choice).
[112] See EdChoice 2023, supra note 74, at 4–7 (analyzing varying state approaches to constitutional barriers).
[113] Benson, 578 N.W.2d at 627–28.
[114] Id. at 620 (upholding Milwaukee’s program despite state constitutional challenges).
[115] Id. at 617–19.
[116] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 465 (2017).
[117] Tex. Const. art. VII, § 1.
[118] See Bush v. Holmes, 919 So. 2d 392, 408-09 (Fla. 2006).
[119] See Carson ex rel. O.C. v. Makin, 596 U.S. 767, 779–81 (2022).
[120] See id. at 775–76 (discussing Vermont’s program as historical precedent).
[121] See Vermont – Town Tuitioning Program, EdChoice [hereinafter Vermont Tuition Program], https://www.edchoice.org/school-choice/programs/vermont-town-tuitioning-program/ (last visited May 5, 2025).
[122] Carson, 596 U.S. at 778 (requiring inclusion of religious schools in generally available tuition programs).
[123] See Vermont Tuition Program, supra note 121.
[124] See generally id.
[125] Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 141–46 (2011) (distinguishing tax credits from direct government expenditures and establishing a framework for future program design).
[126] Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 487 (2020) (validating Montana’s program); Winn, 563 U.S. at 141–46 (upholding Arizona’s tax credit approach).
[127] Winn, 563 U.S. at 141–46 (establishing framework for tax credit scholarship programs).
[128] Ariz. Rev. Stat. § 15-2402 (2023) (expanding Arizona’s program to universal eligibility).
[129] Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 465 (2017).
[130] See Paster v. Tussey, 512 S.W.2d 97, 101–02 (Mo. 1974) (documenting Missouri’s historically strict interpretation of religious funding prohibitions).
[131] Espinoza, 591 U.S. at 485–87 (detailing Montana’s similar constitutional conflict between state no-aid provisions and federal Free Exercise requirements); see also Carson ex rel. O.C. v. Makin, 596 U.S. 767, 782–83 (2022).
[132] Compare Mo. Const. art. IX, § 8 (explicitly prohibiting both “direct and indirect” funding), with Mont. Const. art. X, § 6 (containing more general prohibition without explicitly addressing indirect funding); see also Paster, 512 S.W.2d at 101–04 (interpreting Missouri’s constitutional provisions as “more restrictive” than similar provisions in other states).
[133] Mo. Const. art. IX, § 8.
[134] Espinoza, 591 U.S. at 485 (holding that excluding religious schools from generally available benefit programs violates the Free Exercise Clause); Carson, 596 U.S. at 778 (extending Espinoza’s principle to prohibit exclusion based on religious use of funds).
[135] Compare Mo. Const. art. IX, § 8 (prohibiting indirect funding), with Mont. Const. art. X, § 6 (containing no explicit reference to indirect funding).
[136] S. 727, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024) (establishing the tax credit scholarship program structure).
[137] See Mo. Const. art. IX, § 8 (prohibiting indirect funding).
[138] See Komer & Grady, supra note 58, at 59–60 (summarizing Missouri’s Blaine Amendment and prior litigation).
[139] See Jackson v. Benson, 578 N.W.2d 602, 620 (Wis. 1998).
[140] See EdChoice 2023, supra note 74, at 3–6.
[141] Compare Ariz. Rev. Stat. Ann. § 15-2401 (2023) (demonstrating successful tax credit implementation), with Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 485 (2020) (addressing direct funding programs).
[142] See EdChoice 2023, supra note 74, at 178–79 (analyzing Vermont’s adaptation to Carson).
[143] Ariz. Rev. Stat. Ann. § 15-2401 (2023) (demonstrating successful program implementation despite constitutional restrictions).
[144] Carson ex rel. O.C. v. Makin, 586 U.S. 767 (2022) (representing the shift from permissible exclusion to required inclusion of religious schools).
[145] Espinoza, 591 U.S. at 487–88 (demonstrating the transformation from Establishment Clause concerns to Free Exercise protections).
[146] Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (illustrating historical Establishment Clause concerns)
[147] Carson, 586 U.S. 767; Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 467 (2017).
[148] Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).
[149] See EdChoice 2023, supra note 74, at 172–80.
[150] Id. (analyzing Carson’s impact on remaining state-level restrictions on religious school participation).
[151] Jackson v. Benson, 578 N.W.2d 602, 620 (Wis. 1998) (demonstrating evolution from religious accommodation to broader choice principles).
[152] Paster v. Tussey, 512 S.W.2d 97, 101–02 (Mo. 1974) (demonstrating historical strict interpretation of religious funding restrictions).
[153] Mo. Const. art. IX, § 8; art. I, § 7 (demonstrating conflict with federal requirements).