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The Supreme Court’s Carson Decision Is Not a “Seismic” Event for Schools, but What Happens Next Could Be

In fact, many individuals compare Supreme Court rulings to seismic shifts when describing them.

With over 50 years of precedent being overturned, the Dobbs abortion decision mirrors reality in this regard.

Not so much, though, for Carson v. Makin, possibly the most significant education case on the docket that just concluded.

Although there were a lot of exaggerated headlines and tweets that preceded the Court’s decision last month, Carson was actually only one in a long line of cases that have increased school choice. What comes ahead could end up being far bigger.

A little strange, Carson. The first topic was town tuition, a method by which families in districts with insufficient enrollment to support all levels of education might use public monies to attend private universities.

Maine, Vermont, and New Hampshire are the only states with such programs. The case also essentially dealt with a loose end from earlier matters that had made it to the Supreme Court:

Is the decision to send a child to a particular religious school protected just because the institution declares itself to be religious but not because it practices that religion?

Town tuition is distinct from the majority of choice options, like vouchers, which let students follow their money regardless of whether a public school is accessible.

However, that was not the main factor in the judgment. Maine contended that tuition effectively turns private schools into stand-ins for public schools.

The State pays tuition for some pupils attending private schools — provided the schools are not religious, regardless of the decision’s intentions, Chief Justice Roberts declared in the ruling. That is prejudice towards religion.

Far from being a paradigm shift, the decision was in line with earlier precedent dating back to Zelman v. Simmons-Harris in 2002, in which the Court determined that public funding for religious institutions was not illegal under the First Amendment’s Establishment Clause as long as it was provided by families’ free will. Carson also drew from Trinity Lutheran v. Comer (2017), in which the Supreme Court held that a state could not bar a school from participation in choice programs merely because it was religious, and Espinoza v. Montana (2020). Both cases held that such exclusions were unlawful.

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When seen in the light of these other cases, Carson virtually established the rule that religious schools cannot be singled out for exclusion from private choice programs, including by removing all religious significance with a “use” prohibition.

But there are still a lot of unresolved issues.

Aaron Frey, the attorney general of Maine, immediately reacted to the decision by claiming that the schools the Carson petitioners wished to attend discriminated against LGBTQ families and people of other faiths.

He said that the school openly discriminated against gay and transgender students and promoted one faith at the expense of all others. Frey promised to “guarantee that public money is not used to promote prejudice, intolerance, and hatred” going forward.

The following area of choice litigation is likely certainly the most important: What constraints can a government impose on a religious institution?

An example of this can be found in Maryland, where the state removed Bethel Christian School from the BOOST voucher program due to the school’s belief that marriage is only between a man and a woman and that gender is determined by God at conception.

Faculty, staff, and students were also expected to dress and use the facilities consistent with their biological gender and identify with it. Because Bethel was not qualified for BOOST, the state claimed that the regulations were discriminatory.

Religious discrimination was the basis for the school’s lawsuit. It lost in a lower court in 2020, but a U.S. district court ruled in Bethel’s favour in 2021. But whether the state had to permit Bethel to practice its views wasn’t addressed in the verdict.

Bethel was being punished unconstitutionally for the speech in its handbook, not its religion, according to Judge Stephanie Gallagher, who concluded that there was no proof that the school had ever acted on them.

Religious charter schools are another potential target for litigation. Despite being privately administered, charter schools are public institutions. It’s possible that Carson, like Espinoza before it, paved the way for organizations to file lawsuits to secure the right to form religious charters.

Charter schools may be included in choice programs if religion cannot be used as a justification for exclusion.

This is a strong theory, but there doesn’t seem to be much of a movement to implement it; instead, the concept is mostly used by academics.

While this is happening, Nina Rees, the president of the National Alliance for Public Charter Schools, has vehemently opposed it, stating categorically that “Charter schools, as public schools, can never be religious institutions.”

Those who are against choice in general or religious options, in particular, can also aim to end school choice programs. The only alternative is to end the programs if choice cannot exclude religious schools.

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A larger legal effort to apply the justification for religious inclusion in choice programs to all K–12 education, however, may certainly raise this issue:

The government must permit religious families to divert their tax money to religious institutions if everyone is required to pay for secular public schools. Public education as a whole infringes the right to free exercise of religion without religious options.

In his Espinoza dissent, Justice Stephen Breyer predicted this outcome and asked, “How is a State’s decision to fund only secular public schools any less coercive if making scholarships available to only secular nonpublic schools exerts “coercive” pressure on parents whose faith compels them to enrol their children in religious schools?”

It is not, according to logic, because it also promotes the secular over the religious.

Contrary to Carson’s modest adjustment, if the Supreme Court agreed, it would be an Earth-shaking decision.

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