SCOTUS’s Carson Ruling Isn’t ‘Seismic’ Event for Schools — But What Comes Next Might Be

McCluskey: Carson is consistent with SCOTUS precedent dating to 2002, when justices ruled public funds reaching religious schools was constitutional

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Supreme Court decisions can feel like tectonic shifts – indeed, many people describe them with just such imagery. For the Dobbs abortion ruling, such a feeling reflects reality, with nearly 50 years of precedent upended. But for Carson v. Makin, arguably the biggest education case on the just-completed docket, not so much. Carson was important, but, despite many hyperbolic headlines and tweets that accompanied the Court’s opinion last month, it was ultimately just one in a long line of cases that have expanded school choice. It’s what lies ahead that may be much bigger. 

Carson was a bit odd. First, it concerned town-tuitioning, through which families in districts not sufficiently large to maintain schools at all levels can attend private institutions using public funds. Such programs only exist in three states: Maine, Vermont, and New Hampshire. The case also dealt with, basically, a loose end from previous cases that had reached the Supreme Court: Is choice of a religious school protected based on a school’s “status” — it identifies as religious — but not its “use” — it acts on that religion?

Town-tuitioning is different from most choice vehicles, such as vouchers, which allow funds to follow students regardless of whether a district school is available. Maine argued that tuitioning makes private schools essentially stand-ins for public schools, but that was not central to the decision. No matter what the intention, Chief Justice Roberts stated the simple core principle in the decision, “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” 

Far from a tectonic shift, the ruling was consistent with precedent going back to Zelman v. Simmons-Harris in 2002, in which the Court ruled that public funding reaching a religious school was not a violation of the First Amendment’s Establishment Clause as long it got there via families’ free choices. Carson also built on Trinity Lutheran v. Comer (2017), in which the Court ruled that an institution could not be excluded from a “generally available” state benefit just because it was religious, and Espinoza v. Montana (2020), which said a state could not exclude schools from choice programs simply because they were religious.

Viewed against the backdrop of these other cases, Carson essentially cemented the precedent that religious schools cannot be singled out for exclusion from private choice programs, including by rendering religion meaningless with a “use” prohibition. 

But this leaves much still to be resolved. 

The first reaction from Maine Attorney General Aaron Frey after the ruling was to declare that the schools Carson petitioners wanted to attend discriminated against other religions and LGBTQ families. “They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” he wrote. Frey said that going forward he would “ensure that public money is not used to promote discrimination, intolerance, and bigotry.” 

This is almost certainly the next major frontier in choice litigation: What restrictions can governments put on religious schools?

We’ve seen something of a preview of this in Maryland, where the state removed the Bethel Christian School from its BOOST voucher program because the school’s handbook said Bethel believes marriage is between a man and a woman and gender is assigned by God at birth. It also said, “Faculty, staff and students are required to identify with, dress in accordance with, and use the facilities associated with their biological gender.” The state said the policies were discriminatory and, hence, Bethel was ineligible for BOOST. 

The school sued for religious discrimination. It lost in a lower court in 2020, but in 2021 a U.S. district court sided with Bethel. The ruling, however, dodged whether the state had to allow Bethel to follow its beliefs. Judge Stephanie Gallagher held that there was no evidence that the school had ever acted on them, so Bethel was being punished unconstitutionally for the speech in its handbook, not its religion. 

Another possible arena for legal action: Religious charter schools. Charters are public schools but are run by private groups. Carson, and Espinoza before it, may have opened the legal door for groups to sue for the right to establish religious charters. If religion cannot be a reason to exclude schools from choice programs, that arguably includes charters.  

This is a viable theory, but there does not seem to be a major groundswell to act on it, with the idea mainly fodder for academics. Meanwhile, Nina Rees, president of National Alliance for Public Charter Schools, has explicitly spoken out against it, saying flatly, “Charter schools, as public schools, can never be religious institutions.” 

Ending school choice programs may also be a target for those who oppose choice in general, or religious options in particular. If choice cannot exclude religious schools, then the only option is to terminate the programs.

That, however, might well be mooted by a broader legal campaign to extend the rationale for religious inclusion in choice programs to all K-12 education: If government taxes everyone to pay for secular public schools, it must allow religious families to take their allocation to religious institutions. Without religious options, public schooling itself violates religious free exercise. 

This is not a new conclusion, but was anticipated by Justice Stephen Breyer in his Espinoza dissent: “If making scholarships available to only secular nonpublic schools exerts ‘coercive’ pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive?” 

The logical answer is that it is not — it, too, elevates the secular over the religious.

Were the Supreme Court to agree with that, unlike the incremental change in Carson, it would, indeed, be Earth shaking. 

Neal McCluskey is the director of the Cato Institute’s Center for Educational Freedom.

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