The Free Exercise Clause and School Funding: Why a State’s Exclusion of Jewish Orthodox Schools from Funding Does Not Violate the First Amendment

by Edward Stein*

Recent disputes over government’s exclusion of religious private schools from public funding shine new light on the Free Exercise Clause of the First Amendment, which commands that the government “shall make no law . . . prohibiting the free exercise” of religion. The Individuals with Disabilities Education Act (“IDEA”) offers states federal funds to assist in educating children with disabilities. The question remains whether a state government’s exclusion of Jewish Orthodox schools from IDEA funding triggers strict scrutiny under the Free Exercise Clause. This Contribution argues that exclusion of Jewish Orthodox schools from IDEA funding does not impose a sufficiently substantial burden on the religious exercise of Jewish Orthodox schools or their students’ families, and thus does not trigger strict scrutiny. First, this Contribution situates this issue by explaining the difference between direct and indirect burdens. Second, it distinguishes Jewish Orthodox parents from prior free exercise claimants to show that they do not face a substantial burden. Finally, it contends that Jewish Orthodox schools are also not subject to a substantial burden because they face a permissible use-based exclusion.

The Individuals with Disabilities Education Act (“IDEA”), passed by Congress in 1975, offers states federal funds to assist in educating children with disabilities.¹ Even though the IDEA expressly authorizes funding students enrolled at private schools (and even religious schools), it nevertheless requires IDEA-funded services to be “secular, neutral, and non-ideological.”² Where a state excludes Jewish Orthodox (hereinafter “Orthodox”) schools from federal IDEA funding, those schools—as well as Orthodox parents—may claim that the state violates the First Amendment’s mandate that the government “shall make no law . . . prohibiting the free exercise” of religion.³ Specifically, Orthodox parents may argue that the state violates their free exercise rights by effectively withholding a benefit from those who choose to pursue religious education, and Orthodox schools may argue that the state similarly violates their free exercise rights by excluding them from funding solely on the basis of their religious status.⁴

Prevailing Supreme Court jurisprudence requires free exercise claimants to establish certain elements in order to trigger presumptive constitutional protection, or strict scrutiny.⁵ This Contribution focuses on one such element required to trigger strict scrutiny under the Free Exercise Clause: whether the state has imposed a sufficiently substantial burden on the claimant’s religious exercise.⁶

A substantial burden can be either direct or indirect. A direct burden arises when religious conduct triggers a penalty—e.g., a criminal sanction—such that the effect of the burden is to prohibit the religious conduct.⁷ For example, the Supreme Court found a direct burden in Wisconsin v. Yoder, where Amish parents challenged a compulsory education law requiring parents, under threat of criminal sanction, to send their children to school until the age of 16.⁸ The Supreme Court held for the claimants, noting that they “view secondary school education as an impermissible exposure of their children to a ‘worldly’ influence in conflict with their beliefs.”⁹ The Court further noted that the law “affirmatively compelled [the claimants], under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”¹⁰

Indirect burdens, which are more relevant in the school-funding context, arise when the state “places a religious believer on the horns of a decisional dilemma, for example, by offering financial or other inducements under conditions that would require the believer to forego religious conduct.”¹¹ In Sherbert v. Verner, for instance, a Saturday Sabbatarian challenged a law conditioning unemployment compensation on an individual’s willingness to accept Saturday work.¹² The Supreme Court held for the claimant because the law forced her “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”¹³ As such, while laws which outright penalize certain religious conduct are deemed direct burdens, laws which instead force individuals to choose between receiving a government benefit and following a religious tenet are deemed indirect burdens.

Orthodox parents may claim that states which exclude private Orthodox schools from IDEA funding—effectively barring their children from receiving a government-funded Orthodox education—violate their free exercise rights.¹⁴ Specifically, parents will likely claim that they are religiously obligated to provide their children with an Orthodox education in order to instill in them Orthodox beliefs and values, and in order to immerse them in Orthodox culture and heritage.¹⁵ As follows, according to parents, the government imposes an indirect, substantial burden on their religious exercise by forcing them to choose between two undesirable worlds: one where they violate their religious obligation by providing their children with a government-funded—yet secular–public-school education, and another where they fulfill their religious obligation by providing their children with an Orthodox education, but without taxpayer support.

But the exclusion of Orthodox schools from government funding places their students in a situation that is distinct from, and less burdened than, that of the Saturday-Sabbatarian claimant in Sherbert. There, the claimant could receive government benefits—unemployment compensation—only by violating her religious obligations, i.e., by accepting Saturday work.¹⁶ That claimant was truly placed, by the government, “on the horns of a decisional dilemma.”¹⁷ But Orthodox parents do not face such an unforgiving bind; Orthodox day school is not the only way Orthodox parents can instill Orthodox values and immerse their children in Orthodox culture, and thus public-school enrollment does not bar Orthodox parents from fulfilling their religious obligations.¹⁸ Put another way, Orthodox parents can receive the government benefit at issue—a free public education—while also fulfilling their religious obligations through alternatives to Orthodox day school, such as, for example, Orthodox after-school engagement, nightly or weekend torah study, or Orthodox summer camp.

Concededly, public-school enrollment may make it more difficult for Orthodox parents to fulfil their religious obligations. A working Orthodox parent may need to pick up their tired child from public day school at 3:15 PM and transport them across town to the local Orthodox learning center, or devote personal effort to discuss with their children the content and meaning of Orthodoxy. They may even need to increase the number of times per week that their child attends synagogue in order to secure a level of immersion consistent with their religious obligation. Thus, Orthodox parents certainly may prefer to enroll their child in an Orthodox day school. But the Court’s Free Exercise doctrine does not require that religious claimants receive their preference; rather, it focuses on whether the government coerces claimants into violating their religious obligations. For this distinction, Lyng v. Northwest Indian Cemetery is instructive.¹⁹ There, the Supreme Court upheld a state’s plan to build a highway through a site held sacred by some Native Americans, reasoning that even though the highway might incidentally make it more difficult for claimants to fulfill their religious obligations, it had no tendency to coerce them into violating their religious beliefs.²⁰ Writing for the majority, Justice O’Connor highlighted the pragmatic policy underlying the distinction, stating:

[G]overnment simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of government activities—from social welfare programs to foreign aid to conservation projects—will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities . . . perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment . . . can give to none of them a veto over public programs that do not prohibit the free exercise of religion.²¹

Like Orthodox parents, Orthodox schools also fail to show that they face a substantial burden, but for a different reason: they face a permissible use-based exclusion. Orthodox schools admittedly face an indirect burden; unlike Orthodox parents, but like the Saturday Sabbatarian in Sherbert, Orthodox schools are truly placed by the state “on the horns of a decisional dilemma,” since the state categorically excludes from IDEA funding any school that chooses to be sectarian.²² However, when assessing whether an indirect burden is substantial, the Supreme Court recognizes a distinction between status-based and use-based exclusions.²³ Under Trinity Lutheran v. Comer, the government imposes a substantial burden where it excludes a claimant from a benefit solely on the basis of the claimant’s religious status.²⁴ On the other hand, under Locke v. Davey, the government does not impose a substantial burden where exclusion is based on the claimant’s anticipated religious use of the government benefit.²⁵ There, the Court found that a state policy excluding college students from using public scholarship money to pursue a degree in theology constituted only a relatively minor burden.²⁶ As the Court later stated in Trinity Lutheran, the Locke claimant was excluded not because of who he was, but because of what he planned to do with the government money.²⁷ As such, while status-based restrictions necessarily constitute a substantial burden, use-based restrictions do not.

When the state excludes Orthodox schools from IDEA funding, it imposes a permissible use-based exclusion, not an impermissible status-based one. While the IDEA expressly authorizes the funding of private-school and religious-school students, it nevertheless imposes a secular-use requirement: IDEA-funded services must be “secular, neutral, and non-ideological.”²⁸ Thus, if a state—in administering federal IDEA funding—chooses to exclude Orthodox schools as a means of ensuring compliance with IDEA’s secular-use requirement, then the exclusion is based on the schools’ anticipated religious use of the funding and, accordingly, Locke controls. The state’s belief that Orthodox schools would put funding towards religious uses is not only substantiated by the Jewish Coalition for Religious Liberty’s amicus brief to the Supreme Court in Carson v. Makin,²⁹ but is also consistent with the Supreme Court’s understanding of how religious schools operate.³⁰ Writing for the majority in Our Lady of Guadalupe School v. Morrissey-Berru, Justice Alito remarked that the “religious education and formation of students is the very reason for the existence of most private religious schools.”³¹

Furthermore, the Court’s recent decision in Carson did nothing to disturb the status-use distinction’s continuing place in Free Exercise doctrine,³² despite opinions published by The Heritage Foundation claiming such an effect.³³ In Carson, parents argued that Maine imposed a substantial burden on religious exercise by prohibiting their use of public tuition assistance to fund their children’s enrollment at religious private schools. There, the Court found that the exclusion was status-based, not use-based, and accordingly applied the “unremarkable principles” used in previous status-based cases.³⁴ Thus, Chief Justice Roberts’ commentary that “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination”³⁵ is mere dicta. Even in dicta, Chief Justice Roberts never stated that use-based exclusions—just like status-based ones—are subject to strict scrutiny. The Court would do well to reaffirm its commitment to the status-use distinction; it’s one thing for the government to say “I will not fund you because you are Orthodox”—i.e., to impose a status-based exclusion—but it’s quite another to say “I will not fund you because you will put taxpayer money towards your Orthodox practice”—i.e., to impose a use-based one.

Until Orthodox parents are able to show that public school enrollment bars them from fulfilling their religious obligations, and until Orthodox schools can persuasively show that the status-use distinction is dead, both parties fail to show a substantial indirect burden on their religious exercise, and, consequently, fail to trigger strict scrutiny.

* Edward Stein is a J.D. Candidate (2025) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 National Moot Court Competition in Law & Religion, hosted by Touro Law Center. One of the questions presented was whether a state’s exclusion of private Jewish Orthodox schools from a federal funding program violates the First Amendment free exercise rights of those schools and their students. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. See 20 U.S.C. § 1400.

2. 20 U.S.C. § 1412(a)(10)(A)(vi)(II).

3. U.S. Const. amend. I.

4. See Ryan Colby, Jewish Parents and Schools Ask Los Angeles Federal Court to Protect Children with Disabilities, Becket (May 22, 2023), https://www.becketlaw.org/media/jewish-parents-and-schools-ask-los-angeles-federal-court-to-protect-children-with-disabilities/ (discussing Loffman v. Cal. Dep’t of Educ. and plaintiffs’ potential claims therein).

5. For example, under Employment Division v. Smith, a free exercise claimant must show that the challenged law is not “neutral” and that it is not “generally applicable,” i.e., that it purposefully—rather than merely incidentally—burdens religious conduct. 494 U.S. 872, 878 (1990); see also Elizabeth Ernest, Not Congress, But the Judiciary: How the Roberts Court’s Religion Clause Decisions Are Creating an Establishment of Religion, 20 First Amend. L. Rev. 53, 64 (2021) (explaining that Smith echoed the concern that “religious exemptions permit an individual ‘to become a law unto himself’”(internal citations omitted)). This element is beyond the scope of this Contribution.

6. See Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (“The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.”).

7. Jess Zalph, A Weighty Question: Substantial Burden and Free Exercise, 25 U. Pa. J. Const. L. 953, 966 (2023) (“Laws imposing direct burdens are ones that specifically mandate a religiously prohibited practice or ban a religiously required one.”).

8. 406 U.S. 205, 218 (1972).

9. Id. at 211.

10. Id. at 218.

11. Daniel O. Conkle, Religion, Law, and the Constitution 103 (2nd ed. 2022).

12. 374 U.S. 398, 399–402 (1963).

13. Id. at 404.

14. See Colby, supra note 4 (discussing Loffman v. Cal. Dep’t of Educ.); Loffman v. California Dept. of Education (9th Cir.), Lindsay and Matt Moroun Religious Liberty Clinic, https://religiousliberty.nd.edu/clinic/cases/loffman-v-california-dept-of-education-9th-cir/ (same); Reply Brief of Plaintiffs-Appellants at 1–2, Loffman v. Cal. Dep’t of Educ., No. 23-55714, 2024 WL 1144503 (9th Cir. Feb. 5, 2024), (“By virtue of [California’s] nonsectarian restriction, under no circumstances may a ‘sectarian’ religious school ever be certified, and under no circumstances may a religious family ever successfully have their child placed in such a school. That is a clear-cut violation of the First Amendment, forcing religious individuals and schools to choose between their faith and a public benefit for which they would otherwise qualify.”).

15. See, e.g., David Benkof, No, Orthodox Jews cannot ‘Just send their kids to public school’, Jewish Journal (Feb. 6, 2017), https://jewishjournal.com/commentary/opinion/david_benkof/214412/no-orthodox-jews-cannot-just-send-kids-public-school/ (discussing one Orthodox mother’s perception that public school made it difficult for her to transmit Yiddishkeit, or the Jewish way of life, to her son).

16. Sherbert, 374 U.S. at 404 (“The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.”).

17. Conkle, supra note 11, at 103.

18. See Suri Kinzbrunner, Educating All of Our Children: Community Support for Homeschooling in the Jewish Community (Nov. 2, 2020), https://www.lookstein.org/journal-article/role-of-parents-fall-2020/educating-all-of-our-children/ (noting the rise of homeschooling in the Orthodox Jewish community, and one Jewish mother’s belief that “you can delegate th[e] responsibility [of Hinukh, or the educating of children] to teachers and schools, or you can do it yourself”) (emphasis added).

19. See generally 485 U.S. 439 (1988).

20. Id. at 450–51 (“[Sherbert’s holding] does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions.”) (emphasis added).

21. Id. at 452.

22. Reply Brief of Plaintiffs-Appellants, supra note 14, at 1 (“California makes [IDEA] funding available for private schools to serve students with disabilities who are placed there as a means of receiving a free and appropriate public education. And . . . California requires that all such schools certify they are ‘nonsectarian’ as part of their application to serve these students.”).

23. Trinity Lutheran v. Comer, 582 U.S. 449, 469 (2017) (Gorsuch, J., concurring) (“[T]he court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use.”).

24.  Trinity Lutheran v. Comer, 582 U.S. 449, 466 (2017) (finding a substantial burden because the state’s denial of a church’s application for public funding was based solely on the church’s religious status).

25. 540 U.S. 712, 712–13 (2004).

26. Id. at 713.

27. 582 U.S. at 464.

28. 20 U.S.C. § 1412(a)(10)(A)(vi)(II).

29. Brief of the Jewish Coalition of Religious Liberty as Amicus Curiae Supporting Petitioners at 4, Carson v. Makin, 596 U.S. 767 (2022) (No. 20-1088), 2021 WL 4173242 (“There are no religious-in-name-only Orthodox Jewish day schools—all incorporate Jewish teaching into their curriculum and provide education ‘through the lens’ of Judaism. . . . That is why Jewish parents send their children to those schools: to receive a strong education in an environment that facilitates their spiritual leaning and development.”).

30. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 738 (2020).

31. Id.

32. See generally 596 U.S. 767 (2022).

33. Sarah Perry & Jonathan Butcher, With Carson v. Makin, the Supreme Court Closed the Book on Religious Discrimination in School Choice, The Heritage Foundation (Sept. 2, 2022), https://www.heritage.org/education/report/carson-v-makin-the-supreme-court-closed-the-book-religious-discrimination-school (claiming that the Carson Court held that “any ‘status versus use’ distinction was a distinction without a difference”).

34. 596 U.S. 767, 780 (2022).

35. Carson, 596 U.S. at 786.