An Important Victory for School Choice

The Supreme Court’s 6-3 decision in Carson v. Makin on Tuesday was an important, if incremental, win for advocates of school choice. The six more conservative justices, with Chief Justice Roberts writing, built on several previous rulings to further solidify the ability of faith-based organizations to participate in public programs. Carson also all but closed the door on a strategy school-choice opponents have invoked (the “status-use distinction”) to try to limit the flow of government funds to religious schools.

But perhaps the key outcome of Carson is that the court has put two principles on a collision course—the right of states to operate secular public education systems and the right of faith-based groups to be treated the same as non-religious groups when a government benefit is at stake. It is clearer than ever before that a big case determining the legality of religious charter schools is in the offing.

Viewed one way, Carson isn’t so noteworthy. It produced an expected decision, and it was written matter-of-factly. The question was whether Maine could bar religious schools from participating in the state’s unusual choice program. Because Maine is small and mostly rural, fewer than half of its districts operate secondary schools. For generations, the state has allowed students in such areas to attend another district’s high school or an accredited private school (with the state picking up the tab). For about 40 years, the state has excluded faith-based schools from participating: Its state attorney general determined, because of that era’s federal court decisions, that having government funds flow to a religious institution would violate the Establishment Clause.

But in a series of decisions over the last two decades (most notably Zelman, Trinity Lutheran, and Espinoza), the court has shifted course. In short, voucher programs that ultimately fund faith-based schools are constitutional so long as family choices—not government decisions—direct the dollars. And when the government operates a program (like a grant competition) open to an array of non-government bodies, the state cannot exclude groups from participating simply because they are religious. The majority opinion states that a straightforward application of such precedents makes it clear that Maine’s exclusion of religious schools cannot stand. (“The principles applied in Trinity Lutheran and Espinoza suffice to resolve this case.”)

Maine tried to sidestep those precedents with two arguments—both accepted by the three dissenting justices and by the appeals court whose ruling was reversed by this decision. First, Maine cited the “status-use distinction.” In its 2004 Locke decision, the court drew a distinction between state programs that exclude religious groups simply because they are religious and programs that prohibit state funds from being used for religious purposes—for instance, the difference between stopping a church from winning a social-services grant and allowing the parish to win but barring it from using the funds for evangelization. The former, the court had said, were impermissible; the latter could be permissible. Roberts’ opinion in Carson nearly cabins Locke into nonexistence. 

At this point, it appears that states might be allowed to prohibit a college student from using government funds to study to become a member of the clergy (“Locke’s reasoning expressly turned on what it identified as the ‘historic and substantial state interest’ against using ‘taxpayer funds to support church leaders.’”). But Roberts’ language makes it seem as though the majority is now skeptical of any status-use distinction (a view sketched out by Justice Gorsuch in his Espinoza concurrence). In any event, that precedent did not sway the majority (“Locke v. Davey … does not assist Maine here.”).

Maine’s second effort was arguing that when private schools participate in the state’s program they are essentially functioning as public schools. Since the state can maintain a secular public school system, the state argued, it should be able to include only secular private schools in this program. Roberts’ opinion agrees that Maine’s public schools can stay non-religious (“Maine may provide a strictly secular education in its public schools”) but points out that Maine allows participating private schools to behave as private schools in most ways: Those schools can decide who attends, whether their teachers are certified, and what they teach. In other words, the majority found, the only meaningful thing the state requires participating private schools to give up are its faith-based activities. And that runs afoul of the Free Exercise Clause.

The decision appears to give clear guidance to states. States can maintain their secular public-school systems. States can create private-school-choice programs if they’d like, but they don’t have to. But if a state creates a choice program—opening the provision of K-12 education to an array of non-government organizations—the state cannot single out religious schools for exclusion.

But left unresolved is what would happen if a state opened its public education system to a diversity of non-government providers. That is, what if a state said that public schools could be run by different nonprofits? Indeed, what if the state had a process that allowed a wide array of nonprofits to apply to run public schools? Could the state prohibit religious organizations from running religious public schools—meaning the court would uphold the right of states to run secular public education systems? Or would the court uphold the right of faith-based groups to participate equally in government programs?

This isn’t hypothetical. Since 1991, states have had charter-school programs that permit nonprofits to apply to run public schools. It has been assumed from the start that since charter schools are public schools under state laws (44 states and Washington, D.C., have them today) they must be secular. But the spate of choice-friendly decisions culminating in Carson leave this assumption in doubt. 

Very soon, I suspect, the court is going to face the following question. “Religious entities can run religious schools in private-school choice programs; religious entities can run religious schools when a state has a program compensating for its lack of public schools; why exactly can’t religious entities run religious schools under charter-school laws?”

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