Are school choice programs that include religious schools permissible under the First Amendment?
Yes. Recent decisions by the U.S. Supreme Court and several state supreme courts make clear that unlike direct subsidies to religious schools, educational benefits that include religious schools among the range of options do not violate the First Amendment. The U.S. Supreme Court applies a three-part test to determine whether state action violates the First Amendment’s prohibition against establishment of religion (the “establishment clause”): (1) whether the action has a “secular purpose,” (2) whether its “primary effect” is to advance religion, and (3) whether it creates “excessive entanglement” between the state and religious institutions. Litigation in the school choice area revolves around the second and third questions. Prior to 1980, Supreme Court decisions fueled concerns about whether efforts to allow children to use state funds in religiously affiliated schools were constitutional. In its 1973 decision in Committee for Public Education and Religious Liberty v. Nyquist, for in
