Whether public money can flow to religious instruction is a question the Supreme Court has answered in very different ways over time. Longstanding constitutional doctrine and federal regulations say the government must not contribute to the establishment of religion by funding religious instruction. Yet recent Supreme Court caselaw – notably Carson v. Makin, 596 U.S. 767 (2022) – holds that, in some circumstances, the government must fund religious instruction to avoid violating the Free Exercise Clause of the First Amendment and the Equal Protection guarantee of the Fourteenth Amendment. That tension plays out squarely in Board of Education of the City School District of New York v. E.L., No. 24-CV-1176 (JGLC), 2025 WL 2781305, 125 LRP 29275 (S.D.N.Y. Sept. 30, 2025), where the court upheld an order of the State Review Officer (SRO) requiring the New York City public school system to reimburse parents for the entire cost of instruction at their child’s religious school. The court rejected the school system’s arguments that the reimbursement violated federal regulations, state law, and the First Amendment’s Establishment Clause.
The student was a kindergartner with an unspecified disability. Believing the program the public schools proposed failed to offer a free appropriate public education (FAPE), the parents unilaterally placed the child at a Jewish private school and sought full tuition reimbursement in a due process proceeding. The Impartial Hearing Officer (IHO) agreed the public school program did not offer FAPE and ordered reimbursement – but deducted the share of tuition attributable to Judaic Studies, reasoning that that portion of the instruction was non-secular. The parents appealed that exclusion to the SRO, who reversed the IHO’s deduction. The public school system then sued in district court to overturn the portion of the SRO’s decision requiring payment for the Judaic Studies share of tuition.
In affirming the SRO, the court said that a plain-language reading of 34 C.F.R. § 76.532(a)(1) – which provides that “[n]o State or subgrantee may use its grant or subgrant to pay for . . . [r]eligious worship, instruction, or proselytization” – would violate free exercise principles as articulated in Espinoza v. Montana Department of Revenue, 591 U.S. 464, 488–89 (2020), and other recent Supreme Court holdings. The court made the same point about the New York State Constitution’s language that “[n]either the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any [religious school].” N.Y. Const. art. XI § 3. Recent Supreme Court cases such as Espinoza prohibit disqualifying otherwise eligible recipients from funding based on their religious character, and the Court has viewed funding disqualification as a form of indirect coercion. The E.L. court further observed that the relevant New York State Constitution language may not even apply to education of children with disabilities.
The court went on to say that even under Supreme Court caselaw predating the recent Free Exercise developments, funding the Judaic Studies classes did not violate the federal regulations, New York’s Constitution, or the Establishment Clause. The aid here, in the court’s view, conformed to a principle of neutrality, and any religious indoctrination was not done at the direction of the government – the religious use of the aid was the result of the independent choice of the aid recipient. The school system argued that the Judaic Studies classes were not covered by a neutral program, but the court said it would defer to the SRO’s determination that, for this student, the absence of enrollment in those classes would deny FAPE. Even without applying deference, the court said, it would conclude that the Judaic Studies classes were a core part of the student’s FAPE, as they were said to develop reading comprehension skills and expressive and receptive language skills.
The court continued: “Moreover, the classes comprise a key part of the school day, taking place for thirty minutes to an hour in the morning, between other classes such as language studies, art therapy, and educational therapy. . . . For a five-year-old, these are critical periods of learning and development. To deny funding for these specific class periods would effectively exclude the child from these periods of learning.” 2025 WL 1781305, at *4. On that basis, the court rejected an argument that equitable principles militated against a full tuition reimbursement award, explaining that the classes were not extraneous school services but a part of the core curriculum. The court also noted that the Free Exercise principles advanced by the parents might provide an additional basis for its decision, though it said it was not necessary to resort to those principles to uphold the SRO’s determination that full tuition reimbursement should be provided.
The significance of E.L. lies in how the opinion weaves together several threads the court itself identifies. It treats a plain-language reading of the federal regulation and the parallel state constitutional provision as, in this setting, incompatible with recent Free Exercise doctrine. It accepts that aid flowing to religious instruction can still satisfy neutrality and independent-choice principles when the religious use results from the recipient’s decision rather than government direction. And it ties all of that to the FAPE determination: because the Judaic Studies classes were found to be a core part of the student’s FAPE rather than extraneous services, carving them out of the reimbursement would, as the court put it, effectively exclude the child from critical periods of learning. The court’s observation that Free Exercise principles might independently support the same outcome – though unnecessary to the result – underscores why, on these facts, full tuition reimbursement survived challenges grounded in federal regulation, state constitutional text, and the Establishment Clause alike.