Implications of U.S. Supreme Court’s Upcoming Decision in Maine, Church-State, School Voucher Case

The Washington Post‘s Valerie Strauss recently published a warning about possible unforeseen consequences of the U.S. Supreme Court’s soon-to-be-released decision in a Maine school voucher case, Carson v. Makin. The Court is expected to release its decision by the end of June.

This is a First Amendment case about the entanglement of religion with government and government funding. Strauss warns: “In Carson v. Makin, the conservative majority of the Supreme Court is likely to require Maine officials to use public funding to subsidize religious teaching and proselytizing at schools that legally discriminate against people who don’t support their religious beliefs.”

Strauss refers readers to a May 12 policy brief, The Outsourcing of Discrimination: Another SCOTUS Earthquake?, by Kevin Welner, director of the National Education Policy Center at the University of Colorado. Welner 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 issue 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 currently prohibits.

Welner traces the history of church-state school voucher cases: “The legal landscape for vouchers supporting private religious schools has changed 180 degrees, corresponding to the shift in the makeup of justices on the Supreme Court. Vouchers for religious schools have moved from being broadly understood to be constitutionally forbidden in (the) 1970s to constitutionally allowed in 2003, via the Zelman v. Simmons-Harris (2002) decision, to now arguably constitutionally required, at least under the Montana circumstances.”  Here Welner is referring to the 2020 U.S. Supreme Court decision, Espinoza v. Montana Department of Revenue.”

Many have believed that the recent “Free Exercise” decisions—the 2020 Espinoza decision and the decision the U.S. Supreme Court will release this month in Carson v. Makin—will have little real impact on state policy.  The 2002 decision in Zelman v. Simmons-Harris—based on the old Establishment Clause definition of the separation of church and state—declared that as long as states awarded the voucher to the parents and not directly to the religious school and as long as the parents made the decision to use the voucher at the religious school, vouchers did not violate the separation of church and state.  Following Zelman, most states which award vouchers have already been allowing them to flow to religious schools.

In his new brief, however, Kevin Welner worries that Carson v. Makin could potentially have serious implications when religious schools violate students’ rights protected in federal law. Welner also explores, with a focus on charter schools, how the policy implications would be different in politically blue and red states.

Welner wonders about unexpected implications for all sorts of services which states operate by hiring private contractors—including charter schools: “In a nutshell, the majority of Supreme Court justices may adopt a rule requiring that whenever a state decides to provide a service through a non-state employee (e.g. through a contracting mechanism), the state will face the highest level of judicial scrutiny if it discriminates against churches and church-affiliated service providers that infuse their beliefs into the provided services. Moreover, the Court may determine—in Carson or a subsequent case—that it will apply that same heightened scrutiny to any state intervention if those beliefs drive those providers to engage in discrimination against people because of, for example, their gender identity or sexual orientation (as we see with the private religious schools at issue in the Carson litigation). For states that are politically inclined to engage in such discrimination themselves, this outsourcing of discrimination may be an attractive approach. But states that abhor such discrimination may find themselves forced to pull back on private contracting to provide public services, ending policies that allow private operators of everything from social services like foster care to health care, to prisons and, as I explain… charter schools.”

“If the Supreme Court shifts free exercise jurisprudence in the above-described direction, we can expect that religious nonprofits will apply to establish charter schools… These applications will likely set forth a curriculum consistent with their religious beliefs, including—in many cases—religious worship and proselytization. Some of these applications (or the charter schools’ stated rules) will include curriculum, policies and practices that discriminate against students based on their, or their family’s, gender identity or sexual orientation. If the state refuses these charter applications because of the discrimination, we will see lawsuits from the applicants. If the state grants the applications, we may see lawsuits from the aggrieved students… In contrast to these possible blue-state responses, many red-state policymakers can be expected to embrace the prospect of churches having equal access to government contracts and interjecting religious teachings while carrying out contracted work. Further, the new legal regime could, in these red states, become a red carpet for those with a motivation to discriminate. This discrimination may go beyond hiring or student admission; in some cases bigotry would be part of the curriculum and counseling programs. And it may target, for instance, disfavored religious groups in addition to LGBTQ+ community members.”

Welner concludes the brief: “The Supreme Court’s now-dominant majority of justices with very conservative politics seems to have abandoned the relatively incrementalist (but still very conservative) agenda of Chief Justice Roberts… Religious believers’ claims of discrimination now have a preferred place in the federal courts. Other discrimination claims, particularly those on behalf of members of the LGBTQ+ community, are shown a back seat along with claims raising concerns about the establishment of religion. Riding the wake of these changes, private-school voucher policies have gained legal advantages that were, just decades ago, unimaginable pipedreams. But this may create very real political problems—in blue states at least—for charter school advocates. Of course, the Supreme Court’s majority may, in Carson or in later cases, attempt to carve out exceptions for charter schools and other types of contracting for governmental services… The one sure thing is that we now have a Supreme court that is unabashedly transforming the legal rules within which other governmental entities must make their rules—and education policymakers will have to respond accordingly.”

This blog commented on Carson v. Makin on December 13, 2021, after oral arguments before the U.S. Supreme Court.

U.S. Supreme Court Hears Oral Arguments in New Church-State Separation, School Voucher Case

On December 8, the U.S. Supreme Court heard oral arguments in another school voucher case that tests the separation of church and state. The case is Carson v. Makin, about school vouchers in the state of Maine.

Carson v. Makin was litigated by the Institute for Justice, a libertarian law firm. This case is not an example of parents who want vouchers going out and looking for a law firm to defend their case. For decades the Institute for Justice has been attempting to undermine the First Amendment’s protection of the separation of religion from the mandates of government.

The First Amendment of the U.S. Constitution protects citizens’ freedom to choose their religion or no religion, and to practice religion as they choose: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause declares that government won’t favor or establish any one religion. The Free Exercise Clause prohibits government from telling citizens how they should worship.

The Institute for Justice first litigated cases on school vouchers in the Cleveland voucher case, Zelman v. Simmons-Harris (2002), in which the U.S. Supreme Court found that vouchers are constitutional as long as the state gives the money to the parents and allows the parents to choose the school instead of awarding the voucher directly to the religious school.  It was a case decided on the Establishment Clause, which says government cannot endorse or establish any particular religion. Zelman v. Simmons Harris significantly expanded school vouchers across the states.

Then in 2020, when it argued for the constitutionality of state dollars going directly to religious schools in Espinoza v. Montana Department of Revenue, the Institute for Justice used an entirely new pretext, this time under the First Amendment’s Free Exercise Clause. The Institute for Justice alleged that if a state awards tax-funded vouchers for private schools, it can’t discriminate against religious schools just because they are religious. The logic seems tortured, but today’s U.S. Supreme Court majority accepted it.

In a recent newsletter, the National Education Policy Center traces the history of public funding for private high schools in some of Maine’s small towns: “The case, Carson v. Makin, challenges Maine’s exclusion of ‘sectarian’ schools—those that include religious instruction—from the state’s ‘tuitioning’ program. Maine has, for nearly 150 years, allowed towns too small to operate high schools of their own to pay for their students to attend other public or private high schools. The state has, since 1980, placed a ban on schools that would use the public funds for sectarian (religious) teaching… In Maine, tuitioning is used as a way to deliver public education, with the private schools standing in the shoes of the public schools that would otherwise have to be built. As such, it would make no legal or policy sense to hold the private schools to a different set of rules around curriculum, discrimination or proselytizing.”

A professor of law at the University of Dayton, Charles J. Russo explains how the issue in Carson v. Makin differs from 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 status. Carson v. Makin is about the school’s practice—the explicit teaching of religion, which the state of Maine prohibits. On this matter, the state has prevailed in two appeals of this case: “The federal trial court in Maine ruled in favor of the state, affirming that its “tuitioning” statute did not violate the rights of the parents or their children. On appeal, the First Circuit unanimously affirmed in favor of the state… First, the First Circuit decided the requirement that schools be ‘nonsectarian’ did not discriminate solely based on religion or punish the plaintiffs’ rights to exercise their religion.  This is because the rule has a ‘use-based’ limitation—which may prove to be a crucial distinction. In other words, sectarian schools are denied funding not because of their religious identity, the First Circuit wrote, but because of ‘the religious use that they would make of it.'”

Following oral arguments last Wednesday, VOX’s Ian Millhiser reported: “At an oral argument held Wednesday morning, all six members of the Supreme Court’s Republican-appointed majority appeared likely to blow a significant new hole in the wall separating church and state… All six of the Court’s Republican appointees appeared to think that this exclusion for religious schools is unconstitutional—meaning that Maine would be required to pay for tuition at pervasively religious schools. Notably, that could include schools that espouse hateful worldviews. According to the state, one of the plaintiff families in Carson wants the state to pay for a school that requires teachers to sign a contract stating that ‘the Bible says that God recognizes homosexuals and other deviants as perverted’ and that ‘such deviation from Scriptural standards is grounds for termination.’ In the likely event that these plaintiffs’ families prevail, that will mark a significant escalation in the Court’s decisions benefiting the religious right… The justices are likely to place some limits on its decision in Carson, but it’s not yet clear how they will justify those limits… (I)t’s hard to draw a principled line between a Court decision requiring Maine to fund religious education as part of its existing private school tuition program and a decision requiring all states with a public school system to fund religious education.”

It would be a big mistake to assume that most American religions are in favor of any of these cases. Under the free exercise clause, a large number of religious organizations do not want government interfering with their beliefs and practices. On behalf of 24 organizations, the American Civil Liberties Union, Americans United for Separation of Church and State and the Baptist Joint Committee for Religious Liberty filed an amicus brief arguing that the Supreme Court should not, under the Free Exercise clause, affirm the constitutionality of publicly-funded vouchers for religious schools in Maine.  The amici in this case include: the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty, Catholics for Choice, the Central Conference of American Rabbis, the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ; the Hindu American Foundation, the Jewish Social Policy Action Network, the Methodist Federation for Social Action; the National Council of Jewish Women, the National Council of Churches, The Sikh Coalition; and the Union for Reform Judaism.

The General Counsel and Associate Director of the Baptist Joint Committee for Religious Liberty, Holly Hollman explains why, from the point of view of the organizations filing this amicus brief, this libertarian school voucher case is bad for religion: “Should states be forced to fund the training of young men and women to serve the Lord and become leaders in their church?  Of course not…. In Carson v. Makin, parents are seeking state support for their children’s private religious education. The Baptist Joint Committee and its allies are urging the Court to recognize the historical reasons for keeping the government out of religion… These concerns include protecting individual conscience, respecting inherent limits of government authority in religious matters, and avoiding the creation of divisions based on religious differences.” Hollman reviews Espinoza v. Montana (2020) in which “the Court… held that a Montana tax credit program that funded scholarships to private schools must include private religious schools, notwithstanding Montana law intended to separate church and state.” She explains that in Espinoza, the Court held that the tax credit program violated the Free Exercise Clause because Montana provided tax credits for private schools but excluded some schools because of their religious status. She explains further: “The Carson case tests whether this Free Exercise Clause nondiscrimation rule will be extended to prohibit state programs that are designed to avoid government involvement in religious uses of government funds—such as the explicitly religious activity of providing an education designed to instill a biblical worldview. In our view, it should not.”

Finally in this school year when libertarian organizations like the Heritage Foundation, the Goldwater Institute, and the Manhattan Institute are coordinating and scripting the actions of parents mobbing school board meetings demanding the end of mask mandates, the banning of books, and limitations on what can be taught about slavery and racism, there is another way to look at this case as part of today’s American ethos of individualism and so-called parents’ rights.  Nobody is trying to stop parents from choosing a religious school, but the case of Carson v. Makin, litigated by the Institute for Justice, is intended to force government to pay for the parents’ private school choices.

Betsy DeVos: School Choice, the Establishment Clause, Religious Liberty, and Public Education

According to Benjamin Wermund of POLITICO, the religious views of Betsy DeVos, President-elect Trump’s nominee for Secretary of Education, are closely connected to her philosophy of school choice.  Wermund shares a transcript and video clips of a 15-year-old interview in which Dick and Betsy DeVos attribute their promotion of school choice and privatization through publicly funded school vouchers to their Christian values and their desire to “advance God’s Kingdom.”

Betsy DeVos explains: “We both believe that competition and choices make everyone better and that ultimately if the system that prevails in the United States today had more competition—there were more choices for people to make freely—that all of the schools would become better as a result.” Wermund continues: “However, the DeVoses also say public schools have ‘displaced’ the church in terms of importance.” Wermund quotes Dick DeVos, Betsy’s husband, who was also part of the interview: “The church—which ought to be in our view far more central to the life of the community—has been displaced by the school as the center for activity, the center for what goes on in the community.  It is certainly our hope that churches would continue, no matter what the environment—whether there’s government funding some day through tax credits, or vouchers, or some other mechanism or whatever it may be—that more and more churches will get more and more active and engaged in education.”

In the interview, Betsy DeVos is asked why the DeVoses have not spent their philanthropic dollars to support religious schools themselves.  She replies that they, “want to reform the whole system to bring ‘greater Kingdom gain… We could give every single penny we have, everybody in this room could give every single penny they had and it wouldn’t begin to touch what is currently spent on education every year in this country and what is in many cases… not well spent.'”

Despite that in the 2002 decision in the case of Zelman v. Simmons-Harris, the U.S. Supreme Court permitted the use of publicly funded vouchers at religious schools as long as the voucher is given to the family and not directly to the school, endorsement by government of religious institutions is prohibited by the U.S. Constitution.  Provisions in a number of state constitutions also explicitly reject the expenditure of public dollars for sectarian institutions, including for tuition vouchers and tuition tax credits.

Here is the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”  The first part of the First Amendment (referred to as the Establishment Clause) protects against the government’s in any way favoring—“establishing”— any particular religion , and the second clause guarantees residents of the United States the right to worship according to their own traditions.

Despite that Betsy DeVos, President-elect Trump’s nominee for Secretary of Education, seems to have other views based on her own Christian beliefs, the principles of the First Amendment have been endorsed by religious people throughout our history.  America’s major religious denominations have strongly endorsed the First Amendment’s protection of religious freedom in the public schools. Ensuring that public schools do not “establish” or favor one set of religious beliefs over another means that parents will not have to worry that a school will teach religious beliefs contrary to the tradition of their family.

In 1995 the First Amendment Center convened a group of religious and educational leaders who endorsed a set of principles (Finding Common Ground, pp. 11-13):

  1. “Religious liberty is an inalienable right of every person.
  2. “Citizenship in a diverse society means living with our deepest differences and committing ourselves to work for public policies that are in the best interest of all individuals, families, communities and our nation.
  3. “Public schools must model the democratic process and constitutional principles in the development of policies and curricula.
  4. “Public schools may not inculcate nor inhibit religion. They must be places where religion and religious conviction are treated with fairness and respect.”

The communities of faith that subscribed to these principles were: the Catholic League for Religious and Civil Rights, the Central Conference of American Rabbis, the Christian Coalition, the Council on Islamic Education, the National Association of Evangelicals, the National Council of Churches of Christ, and the Union of American Hebrew Congregations.

Many religious organizations have passed strong resolutions to affirm their support of public schools that honor the First Amendment principle of religious liberty. Some have even formally opposed providing publicly funded vouchers for students to attend parochial schools. I must clarify Wermund’s commentary in one important respect: Dick and Betsy DeVos’s beliefs, as Wermund describes them, represent neither the views of all Calvinist or Reformed Protestants nor the policy resolutions of their communions.

Here is the statement passed in 1999 by the General Assembly of the National Council of Churches: “Although many of the member denominations of the National Council of the Churches of Christ have issued statements supportive of public education, and although the NCC itself has made its pro-public schools stance clear for several decades, in recent years the voices of our churches have been largely absent from the ongoing debate about the meaning and future of our nation’s schools.  As a result, public consciousness has been dominated by religious and political groups whose view of public schools is largely negative.  With this statement we propose to bring the voices of our member churches back into the present debate, bringing with us our traditional support for…  strengthening… the public schools… While we acknowledge and affirm the contribution of private schools to the welfare of children and the nation, public schools are the primary route for most children—especially the children of poverty—into the full participation in our economic, political, and community life.  As a consequence, all of us, Christians and non-Christians alike, have a moral responsibility to support, (and) strengthen… the public schools… Just as we encourage schools to ensure that all religions are treated with fairness and respect, so we urge parents and others to refrain from the temptation to use public schools to advance the cause of any one religion or ethnic tradition… We… caution that government aid to primary and secondary religious schools raises constitutional problems, and could undermine the schools’ independence and/or compromise their religious message.”

Later in 2010, the over-sixty members of the Governing Board of the National Council of Churches voted to adopt a pastoral letter that was sent to the President, the U.S. Secretary of Education and members of Congress.  The NCC Governing Board’s pastoral statement declares: “As a people called to love our neighbors as ourselves, we look for the optimal way to balance the needs of each particular child and family with the need to create a system that secures the rights and addresses the needs of all children… We support democratic governance of public schools.  Because public schools are responsible to the public, it is possible through elected school boards, open meetings, transparent record keeping and redress through the courts to ensure that traditional public schools provide access for all children. We believe that democratic operation of public schools is our best hope for ensuring that families can secure the services to which their children have a right. On balance, we believe that if government invests public funds in charter schools that report to private boards, government, not the vicissitudes of the marketplace, should be expected to provide oversight to protect the common good.”

Several decades ago, in a 1985 pronouncement, the General Synod of the United Church of Christ—the denomination where I staffed work in public education justice from 1998 until 2013—more explicitly rejects the use of publicly funded vouchers to pay students’ tuition in religious and private schools: “We defend the right of parents to choose alternative, private, religious, or independent schools, but continue to declare that those schools should be funded by private sources of income.”

Although very often we take the basic principles of civics for granted, we need to be able to articulate clearly and concisely what the First Amendment is about.  The purpose of this post has been to review the basic principle of religious liberty and to clarify that Betsy DeVos’s views on religion and public education are extremist; they not shared by the American religious mainstream.

Vouchers and Tax Credits Threaten Religious Liberty and Sense of a Shared Public Space

The idea of religious liberty in American public education is basic.  This is the promise that the U.S. Constitution protects children from the teaching of somebody else’s religious views at public expense in their schools.  The First Amendment of the Constitution protects religion in two ways: government may not impose religion (public schools may not teach religious doctrine) and government must protect the free exercise of religion.

The idea of religious freedom is being perverted in myriad ways by those who perpetually try to figure out how public schools or publicly funded schools can teach religion.  Yesterday, Stephanie Simon published a fascinating and detailed article at Politico about the many ways school vouchers and closely related tuition tax credits are being used by those who want to promote their religion.

Simon summarizes the thinking of Neal McCluskey, a libertarian analyst from the Cato Institute, for example, who says that public funds ought to be allowed to go to schools that promote all kinds of religious values.  Then parents should be free to choose for their children the schools that reflect their own beliefs.  “If you want very rigorous evolution instruction, you should be able to choose that.  But you have to let other people choose something else.”  McCluskey’s thinking gets us to a very peculiar definition of scientific thinking: you should be able to choose for your child what kind of science you want your child to believe.  Most scientists, however,  would define scientific thinking as a matter of empiricism not a matter of belief.

According to Simon, only 250,000 students use vouchers and tuition tax credit scholarships, a tiny percentage of the more than 50 million children in public schools in the United States, but the number has grown 30 percent since 2010.  Not-for-profit 501(c)(4) organizations actively pushing vouchers are the American Federation for Children, with leadership from the far-right Betsy DeVos, and Americans for Prosperity, the Koch-funded group.  Vouchers and tax-credit scholarships are constitutional under the U.S. Constitution under the 2002 decision in Zelman v. Simmons-Harris, in which the Supreme Court said vouchers can subsidize religious education if the state funds flow to the parents, not directly to the school, and if the parents have a choice about where to use the voucher.  Simon describes voucher programs in place in a growing number of states whose state constitutions do not prohibit them.

During his term as General Minister and President of the United Church of Christ, the Rev. John Thomas authored a profound pastoral letter that endorsed independent scientific inquiry: “Through the scientific advances of our time, we are seeing nature with new eyes, and what we see fills us with wonder and praise. Stunning images of deep space are like new windows on creation. Microscopic details of living cells show us the unexpected intricacies of our biology. Mathematical equations unravel the secrets of  the first seconds following the birth of the universe. Through these gifts of science, we look across ever-expanding vistas of cosmic beauty, almost to the beginning of time itself. What we see evokes wonder and humility, and we hear within ourselves a new voice arising and singing an anthem of praise that reverberates through the whole creation.”  Rev. Thomas understands that children ought to learn science including the theory of evolution, not religious stories of creation, in their public school science classes.

Just last week in a blog post at Chicago Theological Seminary where Rev. Thomas now teaches, he declares his support for public funding of public schools and  raises an additional set of concerns about tax credits.  These diversions of tax money to private entities are,  “one more part of the relentless chipping away at the public in our public school system.”  “A century ago the Progressive era ended the tyranny of business tycoons who controlled utilities, railroads, state houses, banking, city halls, and the wages and working conditions of millions, all without the inconvenience of public oversight. Today a new elite is returning us to a bygone era many of us thought we’d left in the 19th century.  The chipping away of the public is well underway.”

As a religious leader who supports each person’s freedom of religious belief, Thomas describes the importance of scientific research.  He also argues that tax dollars be directed to support a vibrant public space which all citizens, whatever their faith, are obligated to support, and from which all citizens, whatever their religion, can benefit.  Taxes, according to Rev. Thomas, should not siphoned off for private or religious purposes.  About a recent proposal for tax credits Thomas writes: “… it represents one more part of the relentless chipping away at the public in our public school system. By encouraging voluntary private donations by corporations and individuals directly to schools of their choice – public and private – we further shift control of the education of our children away from the public to the private sector. The tax credits further reduce state revenue, squeezing already inadequate public funding of our most struggling school systems. What happened to the notion that a fair tax system should support public responsibilities?”