Missouri Public Schools Are Woefully Underfunded. Missouri Lawmakers Made Matters Worse.

Their diversion of public funds to private schools raises questions under the state constitution

Bad enough that Missouri ranks at or near the bottom when it comes to funding its public schools and paying its teachers. In their infinite wisdom, Missouri lawmakers decided this year to allocate $51 million in funds for scholarships to private school and home-schooled students.

Like an increasing number of states, Missouri has created a school choice voucher program allowing public funds to be used for private school tuition. Once upon a time, such programs didn’t withstand constitutional scrutiny because the Supreme Court ruled that they violated the First Amendment’s Establishment Clause, which prohibits government from making any law “respecting an establishment of religion.” (Most of the private schools benefiting from school voucher programs are religious schools.)

But that was before the Roberts Court got to work dismantling that framework and decided that the First Amendment’s Free Exercise Clause, which prohibits government interference with religious practice, doesn’t allow states to discriminate against religious schools in their school choice voucher programs.

In a series of cases beginning more than 20 years ago, it upheld such programs, first in Cleveland, where it said the program served a valid secular purpose by providing financial assistance to poor children in a failing public school system.¹

Then in a case that arose in Missouri, it ruled that the state violated the Free Exercise Clause when it denied funds for playground equipment to a preschool operated by a Lutheran church.²

More recently, it upheld a Montana program that provided tax credits to taxpayers who donated money to groups that awarded scholarships to private school students.³ The Montana Department of Revenue had barred the extension of those scholarships to religious schools, citing a provision in the state’s constitution prohibiting the use of public funds for religious schools. The Supreme Court basically said it didn’t care what Montana’s constitution said; religious school students were entitled to the scholarships.

Missouri has a similar tax credit scholarship program, which it enacted in 2021.⁴ That law was designed to get around not one but two provisions in Missouri’s constitution. One prohibits the use of public funds for religious institutions⁵ and the other prohibits the use of public funds for religious purposes.⁶

Whether those provisions will be invalidated by the theocratic majority on the Supreme Court only time will tell. But until then, it’s crystal clear that Missouri’s decision to allocate $51 million in public funds for private school scholarships violates those constitutional provisions.

Which is why I’m puzzled by a lawsuit filed last week by the Missouri National Education Association and a Blue Springs schoolteacher challenging the $51 million allocation on state constitution grounds but not those grounds.

The lawsuit, which was filed in Cole County Circuit Court, instead cites five other provisions in the Missouri Constitution that the allocation allegedly violates, including one prohibiting bills from containing more than one subject, another prohibiting the payment of claims under unauthorized contracts, and a third restricting the powers of the state treasurer, who is charged with distributing the $51 million.

All well and good. The bill probably does violate some if not all of the provisions invoked by the lawsuit. But why not challenge the bill on the most obvious grounds, namely the Missouri Constitution’s express prohibitions on the use of public funds for religious schools and purposes?

True, not every private school that stands to benefit from this diversion of public funds is a religious school—and I’m guessing that’s why those constitutional prohibitions weren't invoked. But I’m betting most of the private schools in question are religious schools, so why not trot those prohibitions out, at least with respect to the religious schools?

Perhaps because the lawyers for the plaintiffs didn’t want to give the Supreme Court an opportunity to invalidate them. I can certainly understand that, given the court’s fixation on the First Amendment’s Free Exercise Clause at the expense of the Establishment Clause.

Still.

That said, what’s especially galling about this latest move by Missouri lawmakers to spend public funds on private schools is that public schools are required to educate all children whereas private schools get to choose whom they accept.

As Rep. Betsy Fogle, a Springfield Democrat and the ranking minority member on the House Budget Committee, told The Beacon back in April, these include schools that won’t accept pregnant or gay students or students with disabilities.

“It’s a parent’s right — and I affirm that — to send their children where they see fit. But I am very much opposed to my tax dollars going to a school that would not have educated me as a child,” she told The Beacon.

Speaking of how the Roberts Court privileges the Religious Freedom Clause over other First Amendment rights, the court ruled ten days ago that schools must provide “opt outs” for children whose parents object on religious grounds to instructional materials.

The 6-3 decision, written by the court’s chief theocrat, Ayatollah Alito, concerned LGBTQ-related books in public schools in Montgomery County, Maryland. The decision opens up a legal can of worms, to say the least, because it isn’t limited to books with LGBTQ+ themes. Thus, parents who object, say, to the theory of evolution on religious grounds would be able to pull their kids out of biology classes in which evolution, of course, is a fundamental tenet.

As Elly Brinkley, an attorney with PEN America, said, “The decision will allow any parents to object to any subject, with the potential to sow chaos in schools, and impact students, parents, educators, authors, and publishers. With rising polarization, xenophobia, and the targeting of vulnerable populations, we need schools that open students’ minds, not betray education by closing them off from the real world.”

In an amicus brief it filed with the court, PEN America argued that the case, Mahmoud v. Taylor, was as much about free speech as about religious freedom.

Take it from Sarah S. Brannen, whose book about a same-sex wedding was one of the books that offended the parents in the case. In an opinion piece published in the Boston Globe before the case was decided, she wrote, “A ruling in favor of the plaintiffs would make it necessary for teachers in the Montgomery County school district to send advance notice to parents every time they read, teach, or even mention books about LGBTQ people in class. That same classroom may include a child with two moms or two dads or a transgender relative. What about a classroom that includes a gender-nonconforming child? What will it say to such children that some of their fellow students must leave class rather than even hear about the existence of people like them or the ones they love?”

What, indeed? But that’s where this Supreme Court has taken us—to a world where Jefferson’s and Madison’s aim of preserving religious freedom by separating church and state has been stood on its head.

Note: A just-published article in the Missouri Law Review by Sarah Stich, a student at the University of Missouri School of Law, offers a thoughtful analysis of the legality of school choice programs in Missouri and other states. It can be found here: https://lawreview.missouri.edu/navigating-constitutional-waters-the-legality-of-school-choice-programs-in-missouri-and-beyond/

1. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

2. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017)

3. Espinoza v. Mont. Department of Revenue, 591 U.S. 464 (2020).

4. Section 135.712-.719 RSMo. and Section 166.700-.720 RSMo.

5. “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”

6. “Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, or to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever.”