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Clearly the establishment clause forbids a religious public school run by the federal government.

And by the process of incorporation of amendments 1 to 8 to the states by the due process clause of the 14th amendment, likewise for a state.

If a state gives complete autonomy to local schools and there's even no state or federal money taken by or given to the school, only money raised by local taxes, what makes a religious school illegal?

  • Is there some other example where local governments are exempt from some constitutional rule? – user9389 Sep 13 '17 at 22:28
  • @notstoreboughtdirt No there isn't, local governments are an extension of state governments, that posses only the powers given to them by the state. If the state tried to give them this power the state would be violating the constitution. – Braydon Sep 13 '17 at 22:55
  • How would a "local government" run a school without using any revenue? And if the school was an independent entity who would up financing itself and reimbursing the local government for their employee salaries, why would they do that instead of hiring their own administrators? I'm having trouble conceptualizing this school administration model. – PoloHoleSet Sep 14 '17 at 17:27
6

All local governments are essentially an extension of state governments. The powers a local government has are only those vested in it by the state. The state cannot give powers to local governments that it does not have, and all of the limits of state government are extended to local governments. If a state tried to give them this power that state would be violating the constitution.

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  • 1
    What makes a local government an extension of a state government? Is there an underlying law? If it's on a state-by-state basis, can you provide an example? – indigochild Sep 14 '17 at 16:44
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    @indigochild The local governments are actually created by the state government, through state laws. The U.S. constitution does not recognize any rights to local governments. It is the state constitutions that call for the formation of these local governments, and what they can and cannot do is dictated by state laws. – Braydon Sep 14 '17 at 23:08
  • I understand all that, but I'm asking you to [back up[(stackoverflow.blog/2010/09/29/good-subjective-bad-subjective) your answer. Assertions of fact should be backed up by references that support that fact. IMO this is already a good answer, it just lacks authoritative evidence that it is correct. – indigochild Sep 15 '17 at 3:03
  • @indigochild A closely related proposition was addressed in Hunter v. Pittsburgh, 207 U.S. 161 (1907). In practice, this has been assumed since the earliest U.S. court cases raising the issue. Exceptions apply, for example, in the area of civil governmental liability (e.g. the 11th Amendment to the U.S. Constitution and § 1983 suits) and in bankruptcy, both of which treat states differently from local governmentso. – ohwilleke Mar 6 '19 at 0:25
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It's actually not clear that the establishment clause in the first amendment prevents federal funds from being given to or benefiting religious schools. A complete ban of government doing anything regarding religion doesn't actually exist, only separate non binding writings endorse the concept. There have been rulings that allowed funding of religious schools. The current precedent is the Lemon Test which has three parts that must be true.

  1. The statute must have a secular legislative purpose.
  2. The principal or primary effect of the statute must not advance nor inhibit religion.
  3. The statute must not result in an "excessive government entanglement" with religion.

There are also the coercion and endorsement tests that prevent the government from appearing to coerce citizens to support a religion or provide an endorsement of a religion. Since this amendment has been Incorporated as you mentioned it applies to all levels of government, which includes local.

A government could never "run" a religious school, as that would most likely failed the third part of the Lemon test. A government could in theory provide nearly all funding to allow a religious school to operate provided the method of funding applied to more than just religious schools, was focused on non religious education. It would also likely require that the school didn't restrict admissions based on religion and could show that religious teaching was funded by non government funds.

A voucher system would likely allow for religious schools to get government funding, as it satisfies most the above scenario and the choice is placed in the student's/parent's so the government s not endorsing anything. This also happens to be a major criticism from opponents of voucher systems in the U.S. as it would take money from secular public schools.

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