Last week’s release of the 2024 National Assessment of Education Progress—often called the nation’s report card—brought sobering news. One-third of America’s eighth-grade students and 40 percent of its fourth-graders read below “Basic” level. The gap between high-performing and low-performing students, closely linked with family income, has widened. Education experts agree that early childhood education is crucial for closing that gap. Yet faith-based preschools, which make up more than 48 percent of all pre-K options, face pervasive and unconstitutional discrimination in publicly funded programs, limiting their ability to help.
In Carson v. Makin (2022), the Supreme Court ruled that Maine’s exclusion of religious schools from public aid for private educational institutions was unconstitutional. This case built on previous rulings, reaffirming that denying religious schools access to funding provided to private secular schools violates the Constitution’s Free Exercise Clause. Time and again, the Court has ruled that the First Amendment demands government neutrality, not hostility, toward religion.
Unconstitutional religious discrimination, however, remains prevalent across many public programs—particularly in pre-K. Most states claim to offer funding to all private schools, even religious ones, but require that the funds be used only for secular purposes. The Court has rightly clarified in Carson this is a distinction without a difference, noting that it has “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.” Moreover, the Court noted, “[a]ny attempt to . . . scrutinz[e] whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism.”
Perhaps surprisingly, some red states are among the worst offenders. Kentucky, for example, allows state pre-K funds to be used for private programs only if the provider signs a contract attesting that “a) The program is separately incorporated from a religious institution; b) The program maintains a non-sectarian board of directors; . . . ; and e) The program’s curriculum is not religious in nature.” In Iowa, FAQs for the State Voluntary Preschool Program instruct “all faith-based partners” to “ensure that, from the time instruction supported by [state funds] starts until the time such instruction ends, no religious instruction takes place. There is to be no interruption (no ‘sprinkling’) of such religious instructional time for any faith-based purpose.”
Some states that claim to permit religious programming impose regulations that discourage faith-based providers from participating. Consider Colorado’s new Universal Preschool Program. The state technically allows for religious providers, and lets them teach their faith, but prohibits—among other things—participating schools from preferring co-religionists in admission and hiring and from expressing religious views that the state considers discriminatory. Last year, two federal judges enjoined the enforcement of these regulations, finding them discriminatory on the basis of religion.
Similar restrictions on pre-K funding exist even in states with generous, religion-neutral, private-school-choice options for K-12 students, including Arizona, Arkansas, Georgia, Iowa, and North Carolina. These laws are particularly worrisome, since many states rely on private providers, including religious ones, for pre-K instruction, and do not extend private-school-choice programs to pre-K students.
Some states have begun to acknowledge and address the problem. In Vermont, the legal code continues to contain discriminatory pre-K funding provisions, but the state’s secretary of education had declared these unenforceable in light of Carson. While this kind of guidance is a good first step, state legislatures should formally update their laws to align with constitutional obligations.
Fixing these laws is not only a practical necessity but also a crucial statement of principle. The First Amendment’s religion clauses require government neutrality and pluralism—not the outdated strict separationist approach reflected in many state pre-K programs. These laws are often rooted in historical anti-Catholic bias, particularly in so-called Blaine Amendments barring the use of public money for religious schools, which the Court has made clear are unconstitutional. States should embrace the opportunity to move beyond this discriminatory past.
Fortunately, some states provide a model of constitutionally sound funding. Florida’s Voluntary Pre-Kindergarten Program, which funds pre-K education for over 150,000 children annually, permits religious instruction in faith-based preschools. Indiana bars regulators from considering religious instruction in eligibility determinations. And Alabama recently changed the guidelines for its First Class Pre-K program to allow religious instruction and activities. Legislators in other states should follow these states’ lead.
The Supreme Court has determined that the Constitution forbids the sort of anti-religious bias that pervades public pre-K funding. Such discrimination keeps families from educating their children in religious settings and forces faith-based providers to choose between public funding and religious fidelity. It’s time for states to conform their laws and policies with the Constitution and fund faith-based pre-K programs.
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