After high court ruling, is it tremors or earthquakes for public education?

Public education is navigating enrollment declines, shaky parental trust, and sizable learning losses. This week the U.S. Supreme Court added another factor to the rocky educational landscape: a ruling that permits more public funding to flow to religious schools. 

Though not as high-profile as gun and abortion cases decided by the justices this term, Tuesday’s ruling in Carson v. Makin could significantly impact schooling in the United States over time.

Some believe the very nature of secular public education is in play, and that’s causing both excitement and consternation. Effects of the decision could range from more families opting out of local schools, to more tax dollars being spent on religious education, to public schooling and a growing list of alternatives continuing to delicately coexist.

“This [case] already is a rallying cry for folks interested in defending public education and the value of public schools in American life. I also think this is absolutely a huge win for the school choice movement,” says Michael Graziano, director of the Institute for Religion and Education at the University of Northern Iowa. “This continues a trend that this particular court has of trying to collapse public institutions into private ones or religious ones more particularly.” 

In a 6-3 decision, the court ruled that Maine must include religious schools in its unique town tuitioning program. Maine, the most rural state in the U.S., has about 5,000 students who live in towns with no public schools for their grade level or contracts with nearby school districts. The state offers those families funds to attend public or private schools of their choice. The state had restricted the tuition funds to exclude “sectarian” religious schools until the court struck down that law.

“The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion,” wrote Chief Justice John Roberts in the court majority opinion. The court’s three liberal justices dissented.

The decision “will hopefully open back up the opportunity for parents to choose the best school for their kids under the tuition program,” says Amy Carson, who, along with her husband David, joined the lawsuit when their daughter couldn’t use state funding to attend their private school of choice, Bangor Christian Schools.

“Next domino to fall”

The ruling leads some scholars to question whether the reasoning – based heavily on First Amendment free exercise clause rights rather than establishment clause interests – could extend to permit religious entities to run public charter schools. Or to eventually require state funding of religious education. 

“The logic in this case, if extended, could be applied to [religious] charter schools, and many of us see that as the next domino to fall,” says Preston Green, a professor of educational leadership, law, and urban education at the University of Connecticut.

“This may not end with charters. It could go even beyond that,” to providing funding for religious education, says Professor Green.

It’s a point one of the justices raised as well. “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” wrote Justice Sonia Sotomayor in her dissent to the Carson opinion.

But there’s still an important distinction between programs that allow parents to choose from a variety of options and funds provided directly from the state to religious schools, says Jonathan Butcher, an education fellow at the Heritage Foundation in Washington. 

“If the money goes to the families who then decide what to do with it, then it’s not a question of the state advancing religion. If the money went straight to a school that had a religious mission and was using it for religious purposes, that then could be a question of establishing religion,” he says. 

Adding to case law

The court’s decision Tuesday builds on earlier Supreme Court cases expanding the rights of religious entities in education. In the 2020 case Espinoza v. Montana Department of Revenue, for example, the court struck down a law prohibiting funds from a state tax scholarship program to go to religious schools. 

Jessica Gresko/AP/File

Kendra Espinoza (center) of Kalispell, Montana, stands with her daughters outside the U.S. Supreme Court, Jan. 22, 2020, in Washington. Ms. Espinoza was the lead plaintiff in an earlier case heard by the high court, Espinoza v. Montana Department of Revenue, that allowed for state-offered tuition assistance scholarships to be used at private religious schools.

In both rulings, the court made clear that states do not have to subsidize private education, “but once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” as Chief Justice Roberts wrote in Espinoza, and quoted in Tuesday’s opinion. 

The chief justice laid out alternatives that Maine could consider for its tuition program, such as adding more public schools and transportation, providing tutoring and remote learning, or running boarding schools. 

In order to implement any of those ideas, “the state would have to be willing to fund it,” says Professor Green, who points out that states have historically underfunded education, especially in communities of color. 

The decision in Carson will encourage state lawmakers to see that “there are not federal obstacles in the way” of creating means for parents to choose how and where their children learn, says Mr. Butcher at the Heritage Foundation. 

He believes the ruling will boost educational savings accounts, a relatively new concept that is currently offered by eight states, according to EdChoice, a nonprofit promoting school choice. 

“This is the essence of what I believe the Carson decision is really speaking to, and that’s the idea that the money goes straight to a parent who can then choose from several things at the same time, [like] educational therapy, online classes, personal tutors,” says Mr. Butcher.

In Maine, parents can pick a secondary school for their children if the school is accredited by a regional body or the Maine Department of Education. Once parents select, the local school district transmits payments to the chosen school. Parents could choose religious schools until 1981, when Maine changed the law based on establishment clause concerns.

The National Coalition for Public Education, in a statement responding to Carson v. Makin, argued that the U.S. “must stop creating new private school voucher programs and end the ones that exist.”

“Public schools, which serve all students, are a cornerstone of our democracy. Our nation cannot afford to waste taxpayer money on a privately run education system, particularly one that fails to improve academic achievement,” the statement read in part. 

Some uncertainty in Maine

Whether the religious schools at the heart of the Carson case will end up accepting the public tuition money they are now eligible for is unclear. 

Bangor Christian Schools and Temple Academy, the two institutions that the plaintiffs in the lawsuit wanted their children to attend, admit that they “discriminate against homosexuals, individuals who are transgender, and non-Christians” in their admissions and hiring practices, according to a case brief by the state of Maine.

Last year, Maine legislators added wording to the state’s Human Rights Act that prevents employers from discriminating on the basis of gender identity. During Supreme Court arguments, the issue was raised whether the religious schools, if receiving state funds, would be exempt from Maine’s law, which already prohibits discrimination based on sexual orientation. The court opinion did not address that question.

Ms. Carson says she’s worried that after four years spent legislating the case, and the Supreme Court victory, families who want to use state funds to attend Bangor Christian still might not be able to if the schools choose not to participate.

“I do not expect any of the schools to change their policies just to be able to accept the funds, but it would be very disappointing to go through all this and have it be that the families that it would benefit could not use it,” she says. 

States could consider a strategy of making private schools ensure they aren’t discriminating in order to gain public funds, says Noelle Ellerson Ng, associate executive director of advocacy and governance at the School Superintendents Association, a member of the National Coalition for Public Education.

“If you cannot do the work to serve every child that wants to come to your school, you should not get the public dollars that go with that,” says Ms. Ng. 

The U.S. can have both strong traditional public schools and school choice, if states provide enough funding, says Professor Green. Even so, he says, having to provide more and more money to alternative choices could strain resources and cause issues with fulfilling state constitutional duties to provide a public education for all.

Mr. Butcher says public education and school choice programs will continue to coexist. Public schools still enroll about 50 million children, while about 600,000 kids are enrolled in school choice programs, he says. 

“Carson v. Makin reinforced that we can create other options for parents and not say either/or,” he adds. “It’s not either private or public – we can have both.”