One hundred years ago, the U.S. Supreme Court decision in Pierce v. Society of Sisters determined “the child is not the mere creature of the State.” In effect, that decision established a dual system of schools in the United States by protecting the right of the non-public schools to exit and the freedom of parents to choose from among alternatives for their children.
The creation of this duality resulted in a diversity of educational opportunities and a variety of ideologies concerning the role of education in a democratic and pluralistic society. However, the decision did not address the question of whether there would be public financial support for the choices exercised by parents in educating their children. That unresolved issue has surfaced repeatedly in public policy debates after Pierce and opened the door for the school choice movement we see today.
The Pierce case was brought before the U.S. Supreme Court on behalf of a religious and a nonsectarian military school in opposition to a state law in Oregon that mandated all children must attend government-controlled schools. Although the case was challenged as a loss of substantive due process (private schools denied their right to exist), the decision went far beyond that issue. In its ruling, the Court enunciated the principle of parents as the primary educators of their children: “The child is not the mere creature of the State . . . those who nurture and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” This principle is the foundational basis upon which the parental choice in the schooling movement has built its platform and advocacy programs.
In the 20th Century, as private schools began to reflect upon their service to the common good and examined the fiscal costs in providing such public service, they began to challenge the inequities inherent in denial of public funding provided to some students and not to others because of educational choices exercised by parents. Ultimately, lobbying efforts resulted in the acquisition of some benefits for students in the form of provisions for school lunches, public transportation, student textbook loans and participation in federal education programs like the Elementary and Secondary Education Act (ESEA), reauthorized as the Every Student Succeeds Act (ESSA).
Later attempts to secure direct public assistance for non-public schools resulted in a series of Supreme Court decisions that became increasingly unfavorable in the later part of the 20th Century. During that period, the Court focused legal and political emphasis on the concept of maintaining a strict separation of church and state. The Court struck down attempts to reimburse schools for secular educational services, payment of salaries for teachers of secular subjects and tuition tax credits for private school parents.
As the operating costs for private schools increased in the 1960s, private foundations began tuition assistance scholarship programs to supplement the financial aid that dioceses and parishes could provide for families needing assistance. The extraordinary number of applicants for all the limited privately financed scholarships led many of their sponsors to conclude that private philanthropy alone was not the answer and they began to put resources into public relations and advertising campaigns designed to build grassroots support for public tax-supported initiatives.
Initially, three states established limited publicly funded voucher programs for students to attend private and religious schools. The programs in Florida and the cities of Milwaukee, WI, and Cleveland, OH, were under legal challenge since their inception, but all three were validated by the Court, beginning in 1998 with the Milwaukee case, Jackson v. Benson.
In the early part of the 21st Century, as cases involving private and religious schools were brought to the attention of the U.S. Supreme Court, the rulings have promoted the concept of neutrality toward religion when deciding the merits of cases dealing with religious institutions that serve the common good. The Court shifted legal arguments away from separation to focus on free exercise rights as it enunciated the conditions under which taxsupported assistance can be provided constitutionally. The choice of the parent to determine where the scholarship would be used is an act of private choice in exercising their parental and religious rights. This was articulated in the 2002 Zelman v. Simmons-Harris decision that upheld the constitutionality of the Cleveland Scholarship Program that provides financial assistance to parents to use for tuition at private schools and in the 2011 Arizona Christian School Tuition Organization v. Winn et al. Although the tax credits for donations to scholarship organizations were used primarily by students in religious schools, the Court decided that the program gives taxpayers the right to freely contribute their own money to organizations, no taxpayer was forced to contribute and that tax credit funds were never public funds or government property.
In the 2020 Espinoza v. Montana Department of Revenue, the Court ruled that the application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families in violation of the Free Exercise Clause of the First Amendment. The Court said that the amendment “protects religious observers against unequal treatment” and against “laws that disqualify otherwise eligible recipients from a public benefit solely because of their religious character." The Court expanded upon that in the 2022 Carson v. Makin decision, which held that Maine’s program of tuition assistance for parents who live in school districts that do not operate a secondary school may not exclude sectarian schools from parents’ choices. Maine’s
“nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.
The U.S. Supreme Court heard arguments on April 30, 2025, in St. Isidore of Seville Catholic Virtual School v. Drummond. which involved the creation of a Catholic charter school in Oklahoma. It would operate as an authentically Catholic school and participate in the “evangelizing mission of the church.”
The state of Oklahoma argued that charter schools are public schools and must remain nonsectarian and cannot be affiliated with a specific religion. St. Isidore School argued that denying them the charter to operate as a religious charter school amounts to unconstitutional religious discrimination. This case differed from other school choice cases in that the school would be directly funded by the state, not by individual vouchers used by parents to choose to attend, thus making the school a state agent. On May 22, a divided Court left standing a lower court’s decision invalidating a charter for St. Isadore.
With decisions rendered by the U.S. Supreme Court during the past two decades, Zelman v. Harris (2002), Trinity Lutheran v. Comer (2017), Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022), the Court upheld public financing options for parental choice of schooling that includes faith-based options, but under specific conditions. These decisions have led to a significant expansion of school choice options so that today 35 states and the District of Columbia and Puerto Rico have at least one private school choice program.
With a potential federal income tax credit program for donations to private scholarship organizations in the recent budget bill, choice programs may be available for options in states that do not currently provide them. The Education Choice for Children Act (ECCA) will be administered by the Internal Revenue Service, as are other income tax exemptions. In the coming months, NCEA will provide additional information and assistance for organizations regarding the specifics of ESSA and the creation of scholarship organizations to receive tax credit donations.
NCEA’s official public policy position echoes that of the Pierce decision and has supported parents’ rights to direct the education of their children and to be supported in the right if they need assistance to exercise it. NCEA encourages Catholic leaders to collaborate with other religious leaders, with civic and business leaders and with all those who support full and fair educational choice for all children.
Sister Dale McDonald, PBVM, Ph.D.is the vice president of public policy for NCEA.McDonald@ncea.org