What Will the Supreme Court’s “Carson v. Makin” Decision Mean for Public Schools, School Vouchers, Charter Schools, and Religious Liberty?

Last Tuesday, the U.S. Supreme Court released a decision in Carson v. Makin, a Maine, First Amendment case about the entanglement of religion and government funding for schools.  For the 6-3 conservative Court majority, Chief Justice John Roberts wrote that if Maine pays for private schooling in remote towns so small they lack a public high school, private religious schools that teach about and promote religion—and even those schools that discriminate against gay students based on the schools’ religious tenets—cannot be denied the publicly funded vouchers.

In a recent article, Kevin Welner, director of the National Education Policy Center at the University of Colorado, explains why the Carson v. Makin, church-state case seems so complicated and confusing: “The First Amendment prohibits laws ‘respecting an establishment of religion, or prohibiting the free exercise thereof.’ These two religion clauses have long existed in tension and in a balance. The Free Exercise Clause protects individuals’ right to practice their religion as they please, while the Establishment Clause keeps the government from (at least in some circumstances) favoring or disfavoring religion or religious institutions. But that balance has perished. A well-orchestrated push to lift the Amendment’s Free Exercise Clause above its Establishment Clause has seen a level of success enjoyed by few other legal-advocacy efforts.”

The specific issue tested in Carson v. Makin differs from a 2020 decision in Espinoza v. Montana, in which the U.S. Supreme Court found that, under the First Amendment’s Free Exercise Clause, the state could not discriminate against a school based on its religious statusCarson v. Makin is about the school’s practice—the explicit teaching of religion, which the state of Maine has prohibited. Both cases were litigated by a far-right law firm, the Institute for Justice, which has supported plaintiffs in a series of cases with the goal of expanding, step by step, the use of publicly funded school vouchers for religious schools.

The Washington Post‘s Robert Barnes explains the meaning of last week’s decision in Carson v. Makin: “Roberts was joined by fellow conservative Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett. The decision was an example of how Roberts prefers to move the law incrementally in a conservative direction. In 2017, he wrote the opinion that said a state could not exclude a church playground from a program that provided funding for safety measures. In 2020, he wrote for the majority that a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition must be open to private religious schools as well. ‘A state need not subsidize private education,’ he wrote: ‘But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.’  Roberts wrote in Tuesday’s ruling, ‘Maine’s decision to continue excluding religious schools from its tuition assistance program… promotes stricter separation of church and state than the Federal Constitution requires.'”

In a dissenting opinion, Justice Sonia Sotomayor declared: “Today, the court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.”

Lots of people seem to share Justice Sotomayor’s concern.  In a statement from the Education Law Center, Jessica Levin, senior attorney and director of the Public Funds Public Schools campaign explains: “Under a wealth of Supreme Court precedent, beginning with San Antonio Independent School District v. Rodriguez in 1973, Maine is well within its rights to limit the tuition program to private schools that meet the carefully designed criteria for providing a publicly funded education, including the requirement that these schools cannot provide a religious curriculum.”

The Southern Poverty Law Center’s interim deputy legal director, Bacardi Jackson adds: “What’s especially concerning about the prospect of diverting funds to religious schools is that these schools can and do discriminate against students, parents and educators… The private schools in this case have threatened expulsion of LGBTQ+ students and have reportedly suggested students undergo harmful conversion therapy. We have also seen far too many cases of educators losing their jobs because of their sexual orientation or gender identity. So what’s really at issue is the public funding of discrimination.”

Education historian, Diane Ravitch responds to Chief Justice Roberts’ contention that the idea of separation of church and state originated in discrimination—in what he says were the 19th century anti-Catholic Blaine Amendments to many of the state constitutions: “The Court is right that there was a strong anti-Catholic bias in American society throughout the nineteenth century. The so-called Blaine amendments found in many state constitutions were animated in large part by a desire to block public funding of Catholic schools. As I showed in my book, The Great School Wars, a history of the New York City schools, the Catholic Church eagerly sought public funding in the 1840s. But the ban on funding religious schools that has been in place nationally for more than a century applied to all religious schools, not just to Catholic schools. Schools run by Protestants, Catholics, Jews, Muslims, and other religious faiths were ineligible for public funding. This view was reinforced repeatedly by the Supreme Court in numerous rulings. The common understanding, upheld by the Court, was that public funds should not be used to indoctrinate students into the belief system of any religious faith. Public schools exist to promote public purposes: literacy and judgment needed to vote, to serve on juries, to participate in civic life, to sustain a democratic polity. Religious schools exist to teach and perpetuate—and yes, to indoctrinate—the faith of adherents.”

Religious advocates for the freedom to worship without constraint strongly oppose the Court’s decision in Carson v. Makin. General Counsel for the Baptist Joint Committee for Religious Liberty, Holly Hollman critciizes the decision: “The Court’s decision to require Maine to fund religious instruction threatens our nation’s commitment to religious freedom and the understanding of church-state separation that protects it. A majority of justices on the Supreme Court keep ignoring the distinctive role of religion in law and society, which is best served by separating the institutions of religion and government.”

The President and C.E.O of Americans United for Separation of Church and State, Rachel Laser declares: “The court’s ultra-conservative bloc argued that refusing to tax citizens to fund religion is ‘discrimination against religion.’ It’s nothing less than gaslighting to cloak this assault on our Constitution in the language of non-discrimination. If the conservative justices were concerned with discrimination, they would not have issued this opinion because it forces taxpayers to fund to religious schools that discriminate against LGBTQ families, one barring their admission and the other forcing them to undergo ‘counseling’ and renounce their sexual orientation or gender identity, or be expelled. One school’s stated education objective is to ‘refute the teachings of the Islamic religion with the truth of God’s word’—and now Muslim taxpayers will be forced to fund that school…  Americans United is committed to defending true religious freedom and public education from the assault mounted by religious extremists.”

In an analysis that explores a number of the legal technicalities in last week’s decision, the National Education Policy Center’s Kevin Welner emphasizes one major development that is likely to arise as a result of Carson v. Makin: “(S)tates will probably be forced to let churches and other religious institutions apply for charters and operate charter schools. That is, religious status probably cannot be penalized in the process of opening up new charter schools… We are left… with a situation where we can expect litigation involving whether charters can be granted to churches, and we can expect to see such charters in the near future. We can then expect to see litigation around whether those church-run charters can successfully assert their Free Exercise rights in an attempt to run the school without restrictions on proselytizing and religiously motivated discrimination.”

For supporters of public education, VOX‘s Ian Millhiser offers one reassuring element of Chief Justice Roberts’ majority opinion in Carson v. Makin: “Traditional public schools probably are not endangered by Carson. The one silver lining in Carson, for anyone who cares about the separation of church and state, is that Roberts’s opinion explicitly preserves the government’s ability to operate traditional public schools that offer an entirely secular education… This suggests that a state may provide a public education in which it comprehensively regulates what is taught, how students are assessed, and who is  allowed to teach.  And the state may offer such a public education to the exclusion of all other education benefits—that is, a state may tell families that if they want a state-funded education, their children must attend a secular public school.”

Millhiser also identifies precisely what Carson v. Makin will change: “But if a state does subsidize private education that is not comprehensively regulated by the state, then these subsidies must be available to religious schools—even if those schools seek to indoctrinate students into religious beliefs that many residents of the state find abhorrent.”

Kentucky Judge Finds New School Voucher Program Unconstitutional

Here is some encouraging news at a time when legislators have been actively introducing a wave of legislation across the states to launch or expand all kinds of publicly funded private school tuition vouchers—regular old vouchers, tuition tax credit vouchers, and education savings account vouchers.

A judge in Kentucky just found a new tuition tax credit program unconstitutional.

In a book he published in 2020,  Schoolhouse Burning, constitutional law professor Derek Black explores our society’s history of public education as it is reflected in our nation’s founding documents and in the fifty state constitutions. Today state legislatures are pushing the limits of the state constitutions, and ideologically driven law firms representing voucher advocates are testing whether the courts can protect public schooling and students’ rights. Black worries that today’s threats seriously threaten our society’s foundational institution of public schooling:

“State constitutions long ago included any number of safeguards—from dedicated funding sources and uniform systems to statewide officials who aren’t under the thumb of politicians—to isolate education from… political manipulations and ensure education decisions are made in service of the common good. The larger point was to ensure that democracy’s foundation was not compromised.  But the fact that politicians keep trying and sometimes succeed in their manipulations suggests these constitutional guardrails are not always enough to discourage or stop powerful leaders. This also reveals something deeper: modern-day incursions into public education are so unusual that our framers did not imagine them. They anticipated that legislatures might favor schools in their home communities at the expense of a statewide system of public education. They anticipated that public education might suffer from benign neglect when legislatures, from time to time, became preoccupied with other issues. But they did not anticipate that legislatures would go after public education itself, treating it as a bad idea.”  (Schoolhouse Burning, pp. 232-233)

In another important book published last year, A Wolf at the Schoolhouse Door, Jack Schneider and Jennifer Berkshire conclude: “(T)he present assault on public education represents a fundamentally new threat….  Put simply, the overarching vision entails unmaking public education as an institution. An increasingly potent network of conservative state and federal elected officials, advocacy groups, and think tanks, all backed by deep-pocketed funders, has aligned behind a vision of a radical reinvention.” (A Wolf at the Schoolhouse Door, p. xix)

In this context, we must welcome last week’s news from Public Funds Public Schools:  “A Kentucky trial court has ruled in Council for Better Education v. Johnson that a 2021 law establishing the state’s first private school voucher program violates the Kentucky Constitution and cannot be implemented.” Governor Andy Beshear had vetoed Kentucky House Bill 563 establishing the tuition tax credit voucher program when it came across his desk, but the state’s legislature had overridden his veto. The case will likely be appealed.

On Friday, October 8, the Louisville Courier Journal reported: “Franklin Circuit Court Judge Philip Shepherd’s decision delivers a crippling blow to the fledgling education opportunity account program, which narrowly became law earlier this year. In his decision, Shepherd enjoined state officials from enforcing the parts of House Bill 563 that deal with the school choice program. They will not be allowed to approve the creation of any account granting organizations or education opportunity accounts, nor can they grant any tax credits to fund either.”

Public Funds Public Schools summarizes the decision: Judge Shepherd held that Kentucky’s new voucher law “violates two separate sections of the Kentucky Constitution.  First… the voucher law violates Section 59, which prohibits laws that discriminate by singling out particular individuals or geographic locations, because it arbitrarily establishes private school tuition vouchers in only nine Kentucky counties. Second, the court agreed with the plaintiffs that the law violates Section 184 of the state constitution, which provides that funds raised or collected for education may be spent only in the public schools, unless otherwise approved by the voters. Judge Shepherd rejected the defendants’ claim that the funds raised for the voucher program ‘are ‘a donation’ in any meaningful sense of that word,’ noting that the legislation permits a ‘favored’ group of taxpayers to redirect money they owe to the state and send it to voucher-granting organizations instead.” The Louisville Courier Journal adds: “The Institute for Justice… (had) argued that the funds were merely private donations.”

The fact that the Institute for Justice litigated this case on behalf of voucher advocates demonstrates that this was not merely a spontaneous local effort by parents seeking help with their private school tuition. For decades the Institute for Justice has been a leader representing advocates for publicly funded tuition vouchers for private schools. On its website the Institute for Justice identifies itself as “The National Law Firm for Liberty, (which) litigates to limit the size and scope of government power and to ensure that all Americans have the right to control their own destinies as free and responsible members of society.”

SourceWatch reports: “According to a statement on the Institute for Justice’s  website, ‘Charles Koch provided the initial seed funding that made it possible to launch the Institute in 1991.’ … Since its founding, the Institute for Justice has received donations from a number of groups with links to the Koch brothers, including a donation of $15,000 from the Charles G. Koch Foundation in 2001 and two donations of $250,000 each from the David H. Koch Foundation in 1999 and 2001. The Institute for Justice also received $716,800 from DonorsTrust and the Donors Capital Fund between 2010 and 2012. Other organizations with links to the Kochs have worked on cases with the Institute for Justice, including the Cato Institute and the Goldwater Institute.”

The law firm successfully represented Ohio voucher advocates in Zelman v. Simmons-Harris, the 2002 case in which the U.S. Supreme Court permitted tax dollars to fund tuition vouchers for education at religious schools as long as the vouchers were awarded to the parents and not directly to the schools. In 2011, the Institute for Justice also represented voucher advocates  in Arizona pushing an education savings account program—the Arizona Empowerment Scholarship Accounts—whose expansion was at least prevented in 2018 when public school advocates passed a referendum to limit the size of the program. And in 2020, the Institute for Justice successfully represented voucher advocates in Espinoza v. Montana Department of Revenue, seeking to protect voucher schools under the U.S. Constitution’s Free Exercise Clause by arguing that if the state awards vouchers to private schools, it may not discriminate against religious private schools.

Today’s attacks on public schools are strategically planned and well funded.  It is worth considering the consumerist and anti-democratic ideology that underpins the idea of marketplace school choice. For this, we must turn to the late political philosopher, Benjamin Barber:

“It is the peculiar toxicity of privatization ideology that it rationalizes corrosive private choosing as a surrogate for the public good. It enthuses about consumers as the new citizens who can do more with their dollars and euros and yen than they ever did with their votes. It associates the privileged market sector with liberty as private choice while it condemns democratic government as coercive… Privatization ideology today encourages us to believe that the market is not only efficient and flexible but can somehow turn its regressive impulses into the service of what is left of the idea of the public good.” (Consumed, p. 143)

Barber continues: “Privatization is a kind of reverse social contract: it dissolves the bonds that tie us together into free communities and democratic republics. It puts us back in the state of nature where we possess a natural right to get whatever we can on our own, but at the same time lose any real ability to secure that to which we have a right. Private choices rest on individual power… personal skills… and personal luck.  Public choices rest on civic rights and common responsibilities, and presume equal rights for all. Public liberty is what the power of common endeavor establishes, and hence presupposes that we have constituted ourselves as public citizens by opting into the social contract. With privatization, we are seduced back into the state of nature by the lure of private liberty and particular interest; but what we experience in the end is an environment in which the strong dominate the weak… the very dilemma which the original social contract was intended to address.” (Consumed, pp. 143-144)

This post has been updated.  The Arizona Empowerment Scholarship Accounts program was not eliminated.  Instead, by referendum in 2018, voters prohibited the vast expansion of this education savings account voucher program.

The Same People Now Trying to Undermine Democratic Elections Have Been Trying for 30 Years to Privatize Public Schools

The players are the very same. For decades they’ve been coming for our public schools. Now they are coming for the democratic process itself by trying to undermine fair elections.

Jane Mayer’s article in the July 9, 2021 New Yorker, The Big Money Behind the Big Lie, begins: “Trump’s attacks on democracy are being promoted by rich conservatives determined to win at all costs.” Mayer uncovers the players behind the Arizona Senate’s demand for an audit of the 2020 election results in Maricopa County. They include the very same people who have worked systematically over the past 30 years to privatize and undermine our American system of public education.

On the significance of this year’s election audit in Phoenix—an election audit conducted by a questionable private contractor—Mayer quotes Ralph Neas, who formerly led the Leadership Conference on Civil Rights and later People for the American Way: “The Maricopa County audit exposes exactly what the Big Lie is all about. If they come up with an analysis that discredits the 2020 election results in Arizona, it will be replicated in other states furthering more chaos. That will enable new legislation. Millions of Americans could be disenfranchised….”

Mayer continues: “Although the Arizona audit may appear to be the product of local extremists, it has been fed by sophisticated, well-funded national organizations whose boards of directors include some of the country’s wealthiest and highest-profile conservatives. Dark-money organizations, sustained by undisclosed donors, have relentlessly promoted the myth that American elections are rife with fraud., and… they have drafted, supported, and in some cases taken credit for state laws that make it harder to vote.”

Mayer names some of the organizations involved in the attack on the integrity of last year’s election: the Heritage Foundation; the American Legislative Exchange Council (ALEC)—a corporate funded nonprofit that generates model laws for state legislatures; the Federalist Society; the Judicial Education Project, “which has rebranded itself as the Honest Election Project”; and FreedomWorks. Here is what all these groups have in common: “They have all received funding from the Lynde and Harry Bradley Foundation. Based in Milwaukee, the private, tax-exempt organization has become an extraordinary force in persuading mainstream Republicans to support radical challenges to election rules…. With an endowment of some eight hundred and fifty million dollars, the foundation funds a network of groups that have been stoking fear about election fraud, in some cases for years.”

What is the Lynde and Harry Bradley Foundation, and where might we have heard of these people before? Mayer provides some history: “The Bradley Foundation remains small in comparison with such liberal behemoths as the Ford Foundation, but it has become singularly preoccupied with wielding national political influence. It has funded conservative projects ranging from school-choice initiatives to the controversial scholarship of Charles Murray, the co-author of the 1994 book, The Bell Curve.”

A long time ago, in the early 1990s, the Bradley Foundation was a major force behind the first school vouchers in the United States—in Milwaukee, Wisconsin. The Bradley Foundation funded the state’s defense against a legal challenge to the program and also paid for mounting an enormous public relations campaign behind school vouchers. In 2003, People for the American Way explored the sudden appearance of a new advocacy group, the Black Alliance for Educational Options (BAEO): “BAEO seemed to come out of nowhere with a series of compelling television ads featuring African-American parents talking about the importance of school choice… BAEO bills itself as a coalition of up-and-coming leaders working within the African American community.  But a closer look shows that BAEO has been bankrolled by a small number of right-wing foundations… It is not surprising that BAEO is headquartered in Milwaukee. Wisconsin has been the linchpin of the voucher movement for over a decade and the Milwaukee-based Bradley Foundation has been at the center of the action…  The Bradley Foundation played a key role when the Milwaukee voucher program came under legal challenge for violating the separation of church and state… Bradley gave the state of Wisconsin $350,000 to pay for the work that Kenneth Starr… and his firm… did to defend the voucher program before the Wisconsin Supreme Court.”

In a 2017 investigation for Madison Wisconsin’s Cap Times, Mary Bottari comments on the outrageous irony that the Bradley Foundation, despite its history of giving to far-right political causes, continues to be designated by the IRS as a charitable nonprofit: “The Bradley Foundation, organized as a tax-exempt ‘charitable’ foundation under 501(c)(3) of the tax code, appears to be pursuing a highly partisan game plan: funding an ‘infrastructure’ on the right that benefits the Republican Party, while at the same time attempting to crush supporters of the Democratic Party.”

The American Legislative Exchange Council is another of the major players Jane Mayer identifies behind today’s outrageous attack on the authenticity of the 2020 election. The Center for Media and Democracy lists ALEC as a regular and significant recipient of operating grants from the Lynde and Harry Bradley Foundation.

Common Cause has had a long running whistle-blower complaint lodged against ALEC because, while it is also identified for tax purposes by the IRS as a “charitable” nonprofit, ALEC is a bill mill with a long history of churning out model school voucher bills along with other far-right projects. ALEC’s Education Task Force regularly drafts and circulates model school privatization bills, which are written as templates to be introduced in any state legislature after state-specific details are inserted.

The Center for Media and Democracy traces ALEC’s direct involvement in 1990 with the birth of the Milwaukee school voucher program: “Decades ago, ALEC targeted Wisconsin as a test case for their agenda. Tommy Thompson, who served as a state legislator from 1966-1987 and then as governor for a record 14 years, was an early ALEC member and supporter… It is now apparent that Thompson was the enthusiastic frontman for a slew of ALEC ideas and legislation — most famously ‘Welfare to Work’ and ‘School Choice.’ In 1990, Milwaukee’s school voucher program for low-income children was the first in the nation, the camel’s nose under the tent for a long-term agenda with the ultimate goal being the privatization of public schools.”

In this week’s New Yorker piece, Jane Mayer mentions another player in this year’s attempt to overturn the 2020 presidential election through the right-wing Maricopa County election audit: Shawnna Bolick.  Bolick is currently an Arizona state representative from Phoenix; she is also running for Arizona secretary of state.  Although Mayor doesn’t trace this history, Shawnna Bolick has family ties to the far-right promotion of school vouchers back in the 1990s.

Mayer leaves out the story of Shawnna Bolick’s husband, Clint Bolick.  In May of 2000, PBS Frontline produced a special on The Battle Over School Choice, which featured an interview with Clint Bolick, along with this introduction: “Bolick is a co-founder and Director of Litigation for the Washington D.C.-based Institute for Justice, begun in 1991 as the ‘nation’s only libertarian public interest law firm’ and as an alternative to the American Civil Liberties Union. The Institute for Justice represents parents and children in various legal cases across the country in support of school choice, including the Cleveland, Ohio lawsuit regarding a publicly funded scholarship program.”

In the interview, Clint Bolick explains: “We have been involved in the school choice battle since we opened our doors in 1991…. The very first court battle was in the spring of 1990, when the first school choice program was passed in Milwaukee. It was a tiny program that evoked a tremendous response from the educational bureaucracy, in the form of a lawsuit and an onslaught of regulations. We represented the parents and children defending the program and challenging the regulations.  And on the first day of school in the year 1990, we were successful.”

In that interview in 2000, Clint Bolick speculated that a case to overturn the “Cleveland Scholarship” voucher program would rise to the U.S. Supreme Court. In the spring of 2002, Bolick served as chief litigator in Zelman v. Simmons-Harris, defending Ohio’s right to spend tax dollars for tuition vouchers to be used in private schools that include religious education. He argued that, “as long as a program gives parents the choice of where to send their kids and does not create any sort of financial incentive for them to do so,” vouchers do not violate the Establishment Clause of the U.S. Constitution’s First Amendment.  In June of 2002, the U.S. Supreme Court decided in favor of allowing the Cleveland Scholarship Plan to proceed.

Now in 2021, Shawnna Bolick, the American Legislative Exchange Council, and the Lynde and Harry Bradley Foundation—along with many of the groups who have been recipients of Bradley Foundation grants—are working to undermine the democratic process itself by attacking what courts have already declared  to be a fair election in Maricopa County, Arizona.

Jane Mayor describes the troubling role of dark money: “It might seem improbable that a low-profile family foundation in Wisconsin has assumed a central role in current struggles over American democracy. But the modern conservative movement has depended on leveraging the fortunes of wealthy reactionaries.”

In his history of the American battle over protecting the right to public education, Schoolhouse Burning, Derek Black describes the fall of Reconstruction after 1876 as the period when states across the former Confederacy attacked the two institutions essential for democracy:  “The new constitutional agenda was two-pronged: disenfranchise black voters and segregate and underfund public schools.” (p. 139)  For the past three decades, The Lynde and Harry Bradley Foundation, ALEC, The Institute for Justice and their allies have been pursuing a similar attack on the same two institutions—the right to vote and the public schools that prepare children to become citizens—which the Founders understand as an essential foundation for democracy.