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A Public School Can Constitutionally Contract with a Religious School for Alternative Education Services

By Marshall W. Grate / Jul 20, 2015

In a recent decision, the United States Sixth Circuit Court of Appeals found no constitutional violation when a public school district contracted with a religious school for alternative education services. Smith v Jefferson County Bd of Sch Comm'ers, LEXIS 9735 (CA 6, 2015). To save money, a public school eliminated its alternative education program and subcontracted with a religious school to provide alternative school services to public school students. As a result, the public school district laid off two public school teachers who sued the school district arguing that the contract with the religious school violated the First Amendment's Establishment Clause to the United States Constitution. 

The religious school operated two separate programs. A day program which included alternative education services and a residential program for troubled, neglected and abused children which maintained a religious character. The day students attended classes taught by state licensed teachers who were employees of the religious school. Religion did not take any part in the day program. A pastor conducted the initial intake for alternative education students, but there was no evidence suggesting that the pastor injected religion into the enrollment process. Day students attended assemblies in the chapel on some occasions, although attendance was strictly voluntary. The assemblies did not include any religious content, but the chapel did contain religious imagery. The alternative education classes took place in a separate school building that did not include any religious symbols or messages. The alternative education students were required to pray, observe a moment of silence, or engage in any religious or spiritual activity. Some of the school district's documents, such as its website, report cards and weekly reports, did contain religious messages. 

In finding that this arrangement was constitutionally acceptable, the Sixth Circuit applied the Lemon test which chiefly examines three factors: (1) does the activity have a secular legislative purpose; (2) does the principle or primary effect of the activity either advance or inhibit religion; and (3) is there excessive government entanglement with religion? 

In applying these factors, the Sixth Circuit upheld this contractual arrangement. The contract was for a secular purpose - to provide alternative school services which the public school eliminated because of budgetary constraints. 

The Sixth Circuit found that the activity did not advance religion. Students were not coerced or required to take part in any religious activity. A reasonable observer would not interpret the contractual arrangement as a governmental endorsement of religion. The Sixth Circuit regarded the religious references that students encountered as de minimis. The students were not exposed to any religious instruction, prayer, or curriculum involving religion. Their school building was devoid of any religious imagery. 

There was no excessive governmental entanglement between church and state. The relationship between the public school and the religious school was strictly one of a contractual nature in which money exchanged hands for fair value as opposed to subsidizing religious activity. 

For these reasons, as well as others, the Sixth Circuit reversed the lower court's decision and dismissed the constitutional challenge. Although the outcomes of Establishment law cases are factually dependent, the Jefferson County School Board case is an example of judicial tolerance toward good faith contractual arrangements between public and parochial schools that embody a secular educational purpose.

If you have any questions regarding this case, please contact your Clark Hill educational law attorney.