It was a big deal when the U.S. Supreme Court ruled just 20 years ago that states could legally provide tuition vouchers for students to attend private, religious schools. Now the court is poised to take a more radical step.
It’s likely to rule that denying public funding to religious schools is unconstitutional, at least in some circumstances. The question is, how far will the ruling go? Experts expect the court to overturn a Maine program that pays for student tuition at some private schools but excludes religious schools. But the decision could be written to apply more broadly.
The case, Carson v. Makin, involves a program that affects a handful of rural Maine school districts that are too small to support a local high school. The state pays for students in those areas to attend a nearby public school or private school. In 1980, citing concerns about separation of church and state, Maine barred religious schools from participating.
Parents eventually sued, arguing that denying them funding to attend a religious school was discriminatory and violated the Constitution’s guarantee of religious freedom. The court heard oral arguments in December 2021 and is expected to issue its decision this month.
Voucher programs have been the subject of heated debate in state legislatures, including Indiana’s, in recent years. But the decision in Carson v. Makin could kick open the door to more widespread public funding of religious schools. In a new twist, libertarians and “religious freedom” advocates are pushing vouchers as a right, not a popular reform.
“They are using the courts to privatize education because voters overwhelmingly oppose vouchers in their communities,” National Education Association President Becky Pringle said when the court heard the case.
The court already ruled, in a 5-4 decision in 2020, that Montana couldn’t exclude religious schools from a “neo-voucher” program that provided tax credits for private school donations. That was one of several recent cases in which the court prioritized claims of religious freedom over concerns about discrimination or the separation of church and state.
The court’s decision in Casey v. Makin could shake up public education far beyond Maine, however. For one thing, it could open the door to religious charter schools – or for private, religious schools to claim a right to state funding under charter-school laws.
Charter schools typically claim to be public schools, which suggests they shouldn’t promote religious doctrine or discriminate in admissions and hiring. A federal appeals court endorsed that view this week when it ruled against a North Carolina charter school’s dress code.
But the Supreme Court could disagree. Charter schools, like private schools, are operated by nongovernmental entities. The court could reason that it’s a violation of their religious freedom to forbid them from teaching religion or practicing discrimination.
Nicole Stelle Garnett, a University of Notre Dame law professor and a friend of Supreme Court Justice Amy Coney Barrett, gives that argument favorable consideration in an article for the conservative Manhattan Institute. Notre Dame’s Religious Liberty Clinic, where Garnett is a faculty fellow, filed two friend-of-the-court briefs supporting plaintiffs in Casey v. Makin.
Remember that Barrett, while a Notre Dame professor, served on the board of a Catholic secondary school that received almost $2 million from Indiana’s voucher program while barring the children of same-sex couples from enrolling.
In the 2020 Montana decision, Chief Justice John Roberts wrote, “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
But Roberts doesn’t speak for the court, and the other five conservative justices may not agree that a state need not subsidize private education. If a court “subsidizes” secular public schools, they could ask, is it discriminatory to not provide the same subsidy to religious schools? With this court, who knows what the answer would be?