When two parents with equal custody disagree about sending their kids to religious school, how does a court decide? A couple from Nevada just found out if courts must choose the religious school over the secular one.

Religious or Secular School?

A Nevada couple agreed to joint custody of their two children, to send their children to private school, and equally split the cost of private school tuition and costs for the minor children. But, they disagreed about which school.

The Father wanted his daughter to attend a religious private school, Faith Lutheran. He said it was in her best interest because she was used to private schooling, she wanted to enroll there, and it had a high college placement rate.

The Mother objected to her child receiving a religious education at Faith Lutheran. She argued that she should attend the local public school, Bob Miller Middle School, which was highly ranked for academics and closer to the daughter’s primary residence.

The trial court concluded that both schools were good, and didn’t make any findings that one was better, but chose the public school “because it was ‘taking into consideration the Mother’s religious objection.”

The mother appealed, saying her religious objection should categorically trump because courts can’t indoctrinate a child with their religious views, particularly over the objection of a parent.

Private School Tuition

I’ve written about the intersection of private school and child custody before. Very often the issue is should a parent have to pay for private school (religious or not).

Pursuant to Florida Statutes, a trial court cannot order a parent to contribute to private school expenses unless it first finds that:

(1) the parties have the ability to pay such expenses
(2) the expenses are in accordance with the customary standard of living of the parties, and
(3) attendance at private school is in the child’s best interest.

If parents are unable to reach an agreement with respect to the payment of tuition, a judge will review the evidence you present and make a decision.

If this becomes necessary, the judge will review all of the financial aspects of the case, including each parent’s income, the history of paying certain expenses and the schools themselves.

The Constitution and Religious Schools

Sometimes tuition cost is not the problem though, religion itself is. The Nevada Supreme Court rejected the mother’s argument:

“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Neutrality means that the court “may not be hostile to any religion or to the advocacy of no-religion.”

The court can violate this principle of neutrality when it treats one parent’s religious objection as dispositive when deciding between a religious school and a nonreligious school.

In the Nevada case, the family court disfavored religion rather than acting neutrally toward it. In ordering that the daughter attend a nonreligious school, the only explanation the court provided was that it had taken into consideration religious objection.

However, there were no findings regarding the child’s best interest and appears to have treated the Mother’s religious objection as dispositive in an attempt to avoid constitutional issues related to religion.

In trying to steer clear of constitutional issues, however, the district court collided head-on with the First Amendment’s Establishment Clause by disfavoring religion.

Neutrality, under the Constitution means that the father doesn’t have a right to demand that his child go to a religious school and the mother have a right to demand that the child go to a secular school. Courts have to decide issues like this on a basis other than the school’s religiosity.

The article from Reason is here.