Ohio’s capital grants to religious schools draw criticism

A little-noticed new program in Ohio’s capital budget is drawing attention after a nonprofit advocacy group called its grants to religious groups unconstitutional.

The One Time Strategic Community Investment Fund forces taxpayers to support religious instruction, argues Americans United for Separation of Church and State, a 501(c)(3) devoted to the Establishment Clause of the First Amendment. The nonprofit announced an investigation into the spending and released an accompanying legal analysis on Oct. 3. 

“I understand the opinions of the group, but what is left out of [their analysis] is the long history in Ohio and of other states of making similar expenditures in this area that have benefited religious institutions,” said Dan Tierney, press secretary for Ohio Gov. Mike DeWine. “Obviously, the state does more to support public schools, but there is at least minimal support for students in private institutions.”

The fund was included in the state’s fiscal year 2024-25 operating budget as part of the construction budget for capital projects, according to a press release. Republicans control the Ohio governor’s office, state House and state Senate. 

The fund provides $700 million of one-time grants to community projects around the state, funded by an appropriation of surplus general fund cash.

“Since this program is funded by general revenue, there is flexibility to support critical needs within communities that may not have qualified for traditional capital debt-supported funding,” the governor’s Office of Management and Budget said in a grant announcement.,

An Ohio Legislative Service Commission report on the fund released this summer lists earmarks for building expansions, renovations and school improvements, among other things, at the following private religious schools: St. Mary School ($4,000), Cornerstone Community School ($76,393), Victory Christian School ($100,000), Bellefontaine Calvary Christian School ($250,000), Temple Christian School ($250,000), St. Edward High School ($800,000), Holy Trinity Orthodox Christian Academy and Preschool ($1 million) and Mansfield Christian School ($1.5 million).

Several churches and two synagogues received funds for capital projects like roof repairs and building expansions. Also receiving funds were three private Christian colleges.

Rebecca Markert, vice president and legal director at Americans United, said the nonprofit is focusing mainly on the K-12 religious school earmarks “because of the relationship between these grants and the state private school voucher program.” If any of the church funding is used for religious worship or instruction, “we would consider investigating that as well,” she said.

“The architect of this law bragged about the goal of bolstering private school vouchers and creating greater capacity for further diversion of taxpayer money to private religious schools that indoctrinate and discriminate,” she said. “Ohio should focus on providing adequate resources to public schools that welcome and serve all families.”

Ohio Senate President Matt Huffman, R-Lima, who helped spearhead the fund, did not respond to a request for comment.

“They may be right that they’ve been doing it [for awhile]; it’s certainly new whether it’s constitutional or not,” said Steven Green, Fred H. Paulus professor of law and affiliated professor of history at Willamette University College of Law and a former legal director at Americans United.

“To actually pay for the bricks and mortar of a religious school where religion is taught, is an extension beyond where the [Supreme] Court has been,” Green said.

“This has been the policy of the state of Ohio for decades,” Tierney said. “Ohio’s school voucher program, in particular the one that was done in Cleveland, resulted in a United States Supreme Court case. So we have case law going back at least that far.”

Tierney was referring to Zelman v. Simmons-Harris, a 2002 Supreme Court case that established the constitutionality of school vouchers provided parents are able to choose between secular and religious schools. 

The Supreme Court’s position since Zelman has tilted toward the concept that as long as the particular thing the government is paying for serves a secular goal, some public funding of religious schools is acceptable. 

But Zelman did not eliminate barriers to public funding of religion at the state level, sometimes known as Blaine amendments, or constitutional provisions in 37 states blocking state funding for religious education. The Supreme Court last week declined to hear a case in which the plaintiffs sought to overturn Michigan’s Blaine amendment.  

Green argued the Zelman case before the Supreme Court as co-counsel for the plaintiffs, and he said that while the Court has since chipped away at the no-funding rule through three major decisions — 2017’s Trinity Lutheran Church of Columbia v. Comer, 2020’s Espinoza v. Montana Department of Revenue and 2022’s Carson v. Makin — the uses of grant funds in Ohio go “a step beyond” even those more recent examples.

“The point when we were litigating [Zelman] was, does it make a difference when you give the check to the parents?” he said. “The Court seemed to suggest that there’s this middleman, by virtue of the voucher, and this concept of parental choice. And so it was the independent choice of the parent making the determination of where the public funds went. That’s the central point of the Zelman holding. 

“It’s hard to draw the line” with this new fund, he added. “If you can repair the [church] roof, can you start doing repairs for the interior? Stained glass windows? The altar? Where is that line going to be drawn? Or is it going to be just anything?”

The First Amendment strikes a balance between the Establishment Clause and the clause defending the free exercise of religion, and recent Supreme Court decisions have shifted the emphasis toward the free exercise of religion, said Stephen Spitz, public finance partner at Orrick, Herrington & Sutcliffe.

“That shift tilts the balance,” he said. “And it tilts it more in the direction of permitting or compelling state support for sectarian institutions. What I mean by compelling is that… if the state chose to have tuition grants for non-sectarian institutions, it couldn’t exclude sectarian institutions.”

That has implications for conduit bond financing for nonprofits, for example. What it means in the case of the Ohio strategic fund is difficult to say, Spitz said: it would be an overstatement to say that public funds can now go to religious groups for any and all uses, but a court will need to look at the specific facts at play.

“There’s a need to draw lines, and the lines are often very difficult to draw,” he added. “And it’s very difficult to draw them in the abstract… But the considerations about how to draw the line have been tilted more toward facilitating a free exercise and away from pro-Establishment.”

Of the states that do not have amendments modeled after Rep. James Gillespie Blaine’s failed addition to the U.S. Constitution, many have language concerning the public use of funds or barring compelled support for religion. When all three types of provisions are combined, Green said, that leaves only two states without some form of restriction on public support for religious groups or religious schooling.   

“No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted.,” according to a provision in Article I, section 7 of Ohio’s constitution.

“If the state has actually been funding the building of not only parochial schools, but then churches, that is different,” said Green. “This is clearly a step beyond vouchers. It makes Zelman seem old school.”