Minnesota ignores Supreme Court, continues religious discrimination

Since 2016, in three cases from Missouri, Montana, and Maine, the Supreme Court ushered in a new era in its blossoming First Amendment jurisprudence. It has emphasized that state officials cannot deny a faith-based institution, and by extension, individuals, including parents, “a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Yet, in 2023, after earlier attempts to change the law were unsuccessful, the Minnesota legislature passed—and Governor (and former Democrat Vice-Presidential nominee) Tim Walz (who defended the change banning faith statements as discriminatory) signed—a new version of the 1985 Postsecondary Enrollment Options Act (PSEO) into law with one major modification.

According to its original subdivision 2, the PSEO was designed “to promote ‘rigorous academic pursuits’ and to provide ‘a wider variety of options’ to high school students by enabling them to enroll full-time or part-time in classes at eligible postsecondary institutions” regardless of their religions and without incurring tuition debt. Purportedly intended to prevent discrimination, the PSEO’s new subdivision 3 essentially singled out two faith-based schools, stating that “[a]n eligible institution must not require a faith statement from a secondary student seeking to enroll in a postsecondary course under this section during the application process or base any part of the admission decision on a student’s race, creed, ethnicity, disability, gender, or sexual orientation or religious beliefs or affiliations.”

This change created two difficulties. First, it essentially forced religious families to stop using PSEO funds to send their children to faith-based schools. Second, it placed officials in faith-based institutions in the difficult position of choosing between continuing to require applicants to submit faith statements and admitting students to their on-campus PSEO programs who failed to do so.

Although Minnesota officials agreed with the plaintiffs not to enforce the revised PSEO, Christian families and the two institutions that accepted students, Crown College in St. Bonifacius and the University of Northwestern-St. Paul, the state’s largest PESO provider, turned to The Becket Fund for Religious Liberty, challenging the change in Loe v. Walz.

In June 2023 the federal trial court in Minnesota, at the request of both sides, enjoined enforcement of the disputed provision but allowed the rest of the statute to remain in effect. Subsequently, the court heard oral arguments on December 9, 2004.

On being denied the opportunity to participate in the PSEO program, three parents—Mark and Melinda Loe plus Dawn Ericson—joined by representatives at Crown College and University of Northwestern-St. Paul, sued Minnesota officials under Section 1983 alleging that the revised PSEO violated their civil rights.

Specifically, the complaint raised related First Amendment charges including that the revised law violated their rights to the free exercise of and against the establishment of religion by categorically excluding them from otherwise available governmental aid, was not generally applicable, discriminated between religious groups, trammeled the schools’ religious autonomy by interfering with their internal affairs on faith statements and targeted their religious beliefs.

The complaint also alleged that the PSEO violated the First Amendment’s Free Speech Clause by attempting to force officials to accept students who might oppose their teachings and their Fourteenth Amendment right to Equal Protection by discriminating against religion in denying the parents and schools of the opportunity to participate in the PSEO program.

Finally, the complaint charged that the PSEO violated the Minnesota Constitution’s rights to the free exercise of religion and conscience clauses by forcing parents to choose between their religious convictions and receiving a generally available state benefit.

Cases such as Loe v. Walz, like a recent dispute from California in which public officials attempted to limit special education services for children whose parents wished to send them to Jewish Day Schools, are troubling. They demonstrate blatant attempts by elected officials to impose their ideological biases as they ignore clear Supreme Court precedent emphasizing that people of faith and their institutions cannot be denied generally available benefits solely because they are religious.

Acting under the guise of preventing discrimination, Minnesota officials ultimately revealed their prejudice against Christian families and institutions by excluding them from the program solely due to their religious beliefs. The revised PSEO openly discriminates against the rights of parents to the free exercise of their religions by preventing them from sending their children to the faith-based schools of their choice because the latter requires faith statements from those who are accepted to attend in person, agreeing to abide with their sincerely held religious beliefs; this rule does apply to online classes.

The PSEO’s new provision raises a threshold question about the faith statements. It is ironic at best, and hypocritical at worst, that elected officials who often tout the importance of choice on matters such as sexuality and abortion demonstrate no such tolerance for religious beliefs inconsistent with their views. To the extent that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,” elected officials should not have interfered with the parental right to choose where their youngsters would attend school using a generally available form of state aid.

A second question arises under what is known as the Child Benefit Test, a term the Supreme Court has never used, even though it is credited with having enunciated it conceptually in 1947’s Everson v. Board of Education. In Everson, the Justices upheld the authority of New Jersey, and, by extension, other states to provide publicly funded transportation for students to their faith-based schools because they, rather than their parents or the schools were the ultimate beneficiaries of the educations they received. Over time, the Court has continued to expand the parameters of generally available state aid.

Other than their opposition to religious freedom and parental choice, it is unclear why elected officials in Minnesota opposed affording officials in participating PSEO schools their right to expect students to submit faith statements acknowledging that they will comply with institutional rules. Because parents are free to send their children to the schools of their choice, regardless of whether they are faith-based, it makes little sense that elected officials would explicitly reveal their prejudice against Christianity.

In light of clear precedent prohibiting the denial of generally available aid due to religion, based on an email exchange with a representative of Becket, it is not surprising that the federal trial court judge was skeptical of Minnesota’s argument for changing the PSEO. Of course, it still remains to be seen how the judge resolves Loe v. Walz. Regardless, one must wonder what Minnesota officials failed to grasp in enacting a law that is so facially discriminatory against religion.

Should the federal trial court judge in Loe v. Walz enter a judgment in favor of the parents and officials in the Christian schools, this will be another in a line of recent triumphs in the ongoing fight to preserve religious freedoms in education. Hopefully, there will be a sharp decline of such cases attacking these fundamental constitutional guarantees. But advocates of religious freedom and parental rights in education will need to remain vigilant in protecting their rights against future challenges.