On Thursday morning in Austin, a federal district judge will hear oral argument on whether to make permanent an injunction against a Texas rule that excludes a specific category of religious schools from the state's $1 billion voucher program. The state will argue that the rule is a viewpoint-neutral educational-quality standard. The plaintiff schools will argue that it has operated, in practice, as a religious-status filter.
The constitutional doctrines the court will apply are complicated, and they have been discussed elsewhere. What is less often discussed is the fact that, outside Texas's narrow exclusion, the federal government has for decades funded religious schools through dozens of channels — none of which have raised the Establishment Clause concerns the state is now invoking to justify its carve-out.
This matters for two reasons. First, it is the single most consequential contextual fact about tomorrow's hearing. Texas is not defending the status quo of American education finance. It is defending a narrow departure from it. Second, it is the fact least often included in coverage of the case, because it requires walking through program-by-program federal appropriations data that most readers, understandably, have not walked through.
This piece walks through it.
What Federal Aid to Religious Schools Actually Looks Like
The phrase "federal aid to religious schools" activates a set of Establishment Clause assumptions that, in modern federal education finance, are largely anachronistic. Under the equitable-services provisions that have been standard in federal education statutes since at least 1965, federal funds appropriated for low-income students, special-education students, English-language learners, and high-poverty schools reach students at private religious schools on a student-by-student basis, with program oversight handled by the local public school district acting as the administering agency.
The principal vehicles are:
Title I-A (Education for the Disadvantaged). Federal Title I provides approximately $18 billion per year in formula grants to local school districts for educational services to low-income students. Under the equitable-services provision, districts receiving Title I funds must provide equitable services to low-income students at private schools — including religious private schools — within their attendance boundaries. In fiscal year 2024, approximately $1.8 billion in Title I services reached students at private schools, a substantial majority of which were religiously affiliated.
Title II-A (Teacher and Principal Training). Federal Title II-A provides professional-development funds to public school districts, with equitable-services provisions requiring that private school teachers — including religious school teachers — be eligible for funded training. FY2024 obligations: approximately $2 billion nationally, with a portion flowing through equitable services to private schools.
Title III (English Language Acquisition). Equitable-services provisions apply to English-language-learner services provided to private school students. FY2024: approximately $840 million.
Title IV-A (Student Support and Academic Enrichment). Flexible block grant used by public districts for counseling, technology, and enrichment. Equitable-services provisions apply. FY2024: approximately $1.4 billion.
Individuals with Disabilities Education Act (IDEA). The federal special-education statute provides approximately $14 billion per year in formula grants. Under Section 1412(a)(10)(A), local school districts are required to identify, locate, and evaluate children with disabilities attending private schools — including religious schools — within their attendance boundaries, and to provide a proportionate share of federal IDEA funds for special-education services to those children. FY2024: approximately $450 million flowed to private-school students under this provision.
E-Rate (Universal Service Fund, Schools and Libraries). The E-Rate program, administered by the FCC, subsidizes internet and telecommunications services for eligible schools and libraries. Religious schools are eligible applicants under the same criteria as secular schools. FY2024 E-Rate disbursements: approximately $2.4 billion, a portion of which went to religious schools.
National School Lunch Program. Federally subsidized school meals are available to students at religious schools under the same nutritional, procurement, and free-and-reduced-price criteria as public school students. USDA disbursements: approximately $13 billion per year.
Head Start. Federally funded early-childhood education includes religious providers as eligible grantees. Annual budget: approximately $12 billion.
GI Bill (Post-9/11 Veterans Educational Assistance). Federal veteran educational benefits are portable to religious colleges and universities, including seminaries. FY2024: approximately $12 billion.
Pell Grants. Federal need-based postsecondary aid is usable at religious colleges and universities. FY2024: approximately $29 billion.
Charter School Program. Federal grants for charter school development have supported religious-affiliated charters in several states, under the Supreme Court's evolving religious-status doctrine.
Perkins Career and Technical Education. Federal career-and-technical-education funding is available to private religious schools under certain conditions.
The aggregate amount of federal education funding reaching religious schools, either directly or through equitable-services provisions administered by public districts, is conservatively $5 billion per year. Over the decade since Congress reauthorized the Elementary and Secondary Education Act in 2015, it has totaled more than $50 billion.
None of these programs has been held by any federal court to violate the Establishment Clause. The Supreme Court has repeatedly affirmed that neutral, generally available federal aid programs that reach religious schools do not violate the Establishment Clause when the funds reach those schools as a result of individual decisions by students, parents, or eligibility formulas applied equally across religious and secular institutions.
What the Supreme Court Has Said in the Last Decade
The Supreme Court has decided three major religious-status cases since 2017, each of which narrowed — not expanded — the class of permissible state-level exclusions of religious institutions from neutral public benefit programs.
In Trinity Lutheran Church of Columbia v. Comer (2017), the Court held that Missouri could not exclude a church-operated preschool from a state grant program for resurfacing playgrounds. The ruling was 7-2. The exclusion, the Court held, discriminated against the church "solely because it is a church" and was therefore subject to strict scrutiny.
In Espinoza v. Montana Department of Revenue (2020), the Court held that Montana could not exclude religious schools from a state tax-credit scholarship program. The ruling was 5-4. The Court specifically rejected the argument that a state's "no-aid" constitutional provision (a so-called Blaine Amendment) could justify religious-status exclusion from an otherwise-neutral benefit program.
In Carson v. Makin (2022), the Court held that Maine could not exclude religious schools from a state tuition-assistance program used by families in districts without public secondary schools. The ruling was 6-3. The Court held that the exclusion was not merely a religious-status rule but a religious-use rule — and that, under Trinity Lutheran and Espinoza, both types of exclusions were subject to strict scrutiny.
In the Court's own framing across these three cases, the constitutional question is not whether states may fund religious institutions. It is whether, once a state has created a neutral public benefit program, the state may then carve religious institutions out of it.
The answer, across ten years of increasingly clear doctrine, has been: generally not.
Where the Texas Rule Fits
The Texas voucher program is a neutral public benefit program in the sense those three Supreme Court cases mean. It provides education-savings-account funds to eligible Texas families, which families can then use at participating schools — public, private, religious, and secular — of their choosing.
Texas's exclusion rule, issued by the Comptroller's office in December 2025, does not exclude all religious schools. It excludes a specific category of religious schools whose curricular framework the Comptroller has determined, after review, to be "incompatible with constitutional order." The Comptroller's review identified 14 schools — all sharing the same religious affiliation — as falling within the exclusion.
At the preliminary-injunction stage in February, Judge Bennett's court held that this exclusion, as applied, functioned as a religious-status test under Trinity Lutheran and was subject to strict scrutiny. The state's legitimate interest in educational quality, the court found, was not narrowly tailored to the exclusion as implemented. A preliminary injunction was issued.
Thursday's hearing is on whether to make that injunction permanent. The state has filed a motion arguing that the rule is a viewpoint-neutral educational-quality standard, not a religious-status test, and that the Court should apply rational-basis rather than strict scrutiny. The plaintiff schools have filed a cross-motion arguing that the Comptroller's review process — which was advised by outside organizations with documented positions on the specific religious tradition of the excluded schools — is disqualifying under the neutrality analysis of Church of the Lukumi Babalu Aye v. City of Hialeah (1993).
Both sides have substantive constitutional arguments. Either could prevail. What makes the case consequential is not the specific outcome but the precedential footprint. If the injunction is made permanent, Texas's rule will be the first post-Carson state-level religious-status exclusion to be durably struck down in a Fifth Circuit district court. If the injunction is dissolved, the state will have created a template for other states to design narrow religious-status exclusions around curriculum-review procedures rather than religious-institution categories.
What This Means for the Broader Accountability Picture
The accountability question for readers — separate from the constitutional question for the court — is whether the Texas rule's defenders have been forthright about what they are defending.
In public statements, advocates of the rule have framed it as necessary to prevent "foreign legal traditions" from influencing American education. This framing implies that federal education law has generally kept religious schools at arm's length and that Texas's rule is a modest, state-level course-correction in a generally secular system.
The actual structure of federal education finance is substantially different. Federal education law has, for sixty years, extended neutral aid programs to religious schools on an equitable basis. The Supreme Court has, for ten years, narrowed the class of permissible state-level religious-status exclusions from those programs. Texas's rule is not a continuation of the American legal tradition. It is a narrow, specific state-level departure from it.
Readers evaluating the merits of tomorrow's case deserve the fuller contextual picture. Federal aid to religious schools is not a rare, contested, or legally marginal practice. It is the dominant structural feature of American education finance as it has operated since 1965. The single Texas rule that may be struck down Friday or upheld is a single carve-out from that structure — and a narrow one, affecting 14 schools out of several thousand participating in the Texas voucher program.
Whether that carve-out is constitutionally permissible is what the court will decide. Whether it is the dominant, traditional, or normal American practice — it is not.
Why It Matters
Accountability journalism, at its core, is about giving readers the contextual information that advocacy is designed to obscure. When a state defends a narrow rule by framing it as a defense of American legal tradition, readers deserve to know what that tradition actually includes.
It includes, in the last fiscal year alone, approximately $5 billion in federal education aid flowing to religious schools through Title I, Title II, Title IV, IDEA, E-Rate, the National School Lunch Program, Head Start, Pell, and the GI Bill. It includes three Supreme Court decisions in the last ten years affirming that state-level exclusions of religious institutions from neutral benefit programs are subject to strict scrutiny. It includes a federal constitutional doctrine that has grown, not shrunk, in its protection of religious institutions' access to publicly available benefits.
The Texas rule before the court Thursday is a narrow exclusion from an otherwise-neutral program. Whether that exclusion survives tomorrow's hearing is a question of constitutional doctrine. Whether the exclusion represents the dominant American tradition or a narrow departure from it — that is a question of fiscal fact.
The fiscal fact is that the tradition, for six decades, has been inclusion. The rule before the court is an exception.
Sources cited in this piece include the U.S. Department of Education's Title I equitable services guidance, the Supreme Court's Trinity Lutheran, Espinoza, and Carson opinions, and the Texas Tribune's coverage of the Comptroller's December 2025 exclusion review.