A quarter-century ago, as a young attorney, I participated in the first litigation challenging the exclusion of faith-based schools from Maine’s tuition-assistance program for students in rural school districts. On Tuesday, in Carson v. Makin, the Supreme Court agreed with me, holding in a 6–3 vote that the program unconstitutionally discriminates against faith-based schools. (I cried. Twenty-five years is a long time.)
In some ways, Carson is unremarkable. The case reiterates, for the third time in recent years, that the Constitution prohibits the government from refusing to permit religious organizations, including religious schools, to participate in programs providing public benefits—including school-choice programs. Chief Justice John Roberts’s majority opinion hammered the point home with perfect clarity: “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion” which “violates the Free Exercise Clause of the First Amendment.”
Critics of the decision, including the dissenting justices, responded with dark warnings about Carson ushering in a theocracy. Justice Sonia Sotomayor complained bitterly that the “Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” Justice Stephen Breyer predicted that the decision would increase “the potential for religious strife.” Such statements are hyperbolic at best. As a matter of constitutional law, the opinion breaks little new ground, merely reiterating what the Court has said repeatedly: the Constitution demands government neutrality toward religious believers and institutions. Full stop.
That Carson was not groundbreaking does not mean that it is not a landmark decision. On the contrary, the ruling represents the culmination of a battle for the equal treatment of faith-based schools that stretches back to the first half of the nineteenth century, when Catholic bishops began to demand public funds for Catholic schools on equality grounds, since public schools at the time were functionally Protestant and hostile to Catholic children. Those demands largely fell on deaf ears, and later, courts—including the Supreme Court—took a hard line against aid to children attending faith-based schools, invalidating on Establishment Clause grounds even programs providing modest financial benefits.
Beginning in the 1980s, the Supreme Court gradually began to embrace the view that government could include faith-based schools in religion-neutral public-benefit programs. When I first challenged the exclusion of religious schools from the Maine program ultimately invalidated in Carson (along with colleagues at the Institute for Justice, which represented the plaintiffs in Carson), it wasn’t clear whether the Constitution even permitted states to include religious schools in choice programs, let alone whether it required them to do so. In 2002, in Zelman v. Simmons-Harris, the Court finally answered that first question in the affirmative, holding that the Establishment Clause does not preclude faith-based schools from being included among the range of options available to students participating in a private-choice program.
After Zelman, key questions remained. Even if states could include religious schools in private-school-choice programs, could they opt not to? What if a state constitution requires the exclusion of religious schools, as opponents of school choice began to argue when litigation challenging new programs shifted to state courts? Carson puts those questions to rest. In the chief justice’s words: “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.”
Importantly, Carson eliminates the last remaining hook upon which states have sought to hang their discriminatory-funding hats: the argument that there is some constitutionally relevant distinction between discrimination based on the religious character of a school and discrimination grounded in a desire to avoid putting public funds to religious uses. The majority clarifies that the Court has “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination. (For reasons illustrated in an amicus brief I filed in the case on behalf of Catholic, Muslim, and Jewish schools, these two categories quickly collapse into one another under scrutiny.)
The implications of Carson for education policy are arguably even more significant than for the law. Over the past few decades, school choice has exploded in the U.S. Thirty-one states, Puerto Rico, and the District of Columbia now have at least one private-school-choice program. Faith-based schools are critical to the success of these programs. Throughout our nation’s history, faith-based schools have provided affordable, high-quality educations that have lifted generations of children out of poverty and prepared them for successful, productive, and fulfilling lives. Indeed, the available research suggests that the most disadvantaged children receive the greatest benefit from attending them. Not surprisingly, many parents participating in choice programs choose faith-based schools for their children.
In other words, policies that exclude faith-based schools from private-school-choice programs are not just unconstitutional; they are unwise. Carson v. Makin is a victory not just for religious liberty but for educational pluralism. And the decision comes at a time when we need educational pluralism more than ever.
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