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.”)