Two major SCOTUS decisions: here’s one….

You can expect another heavy push for vouchers in the next legislative session in Texas. Those who support “the money following the child” are sure to emphasize the Supreme Court’s ruling in Carson v. Makin, decided on June 21 of this year.  The Court, by a 6-3 vote, approved for the first time the use of public funds to promote particular religious beliefs in schools that openly discriminate in ways the public schools cannot.

To put this in perspective, you need to understand the situation in Maine that led to this particular scheme.  Here’s something I learned from reading Justice Roberts’s opinion: “Maine is the most rural State in the union.”  It is so rural that over half of its school districts do not operate a public secondary school.  The school district can contract for secondary school services with another school district or with a private school, but if it does not do that, the local district must “pay the tuition…at the public school or the approved private school of the parent’s choice at which the student is accepted.”

To be approved, the private school has to meet certain criteria.  It must be either approved by the state agency or by the New England association of schools and colleges.  It must use English as the language of instruction, offer a course on Maine history and its cultural and ethnic heritage, and maintains a student-to-teacher ratio of not more than 30 to 1.

One more thing: the school cannot be “sectarian.”  A school is considered “sectarian” if it is “associated with a particular faith or belief system and…in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material through the lens of this faith.”

So Mr. and Mrs. John Doe, residing in the backwoods of Maine where there is no high school, can get a grant from the state to send their child to any public or private school that meets that minimal criteria. But they could not send their children to Bangor Christian School or Temple Academy. Those schools were “sectarian,” and thus excluded. 

Chief Justice Roberts wrote the majority opinion that holds that the exclusion of the religious schools is unconstitutional. It infringes on the Free Exercise Clause of the First Amendment.  If parents are allowed to choose a private school, that choice must incorporate schools that are faith-based.

From the dissenting opinion we learn that Bangor Christian and Temple Academy deny enrollment to students based on gender, gender-identity, sexual orientation, and religion.  Moreover, “both schools require their teachers to be Born Again Christians.” In other words, they discriminate in ways that the public schools cannot. They are not required to accept any child. So for the first time, this opinion permits the use of taxpayer funds to support specific religious instruction in institutions that discriminate in ways no public entity can. 

Justice Roberts is not alarmed by this for one basic reason: no state has to spend a penny on private schooling.  Here’s an important part of the majority opinion:

The dissents are wrong to say that under our decision today Maine “must” fund religious education.  Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it.  The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in Espinoza, 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.” (Emphasis in the original).

This case will help frame the upcoming debate in Texas.  Currently, the only taxpayer money that goes to private schools comes from federal funds.  No state or local tax money goes to private education. We now know that if the legislature chooses to open that spigot, it will flow to schools that teach beliefs espoused by Christians of all kinds, as well as Jews, Muslims and all other religious groups.  Let’s hope that at a minimum, any public funding of private schools will come with some conditions. Those conditions should include the requirement to accept any student that the public school would be required to accept.  Those conditions should include STAAR testing, accountability and transparency in financial and governance issues. Let’s see how many private schools want to accept those terms.

Carson v. Makin was decided on June 21, 2022 and is cited at 142 S.Ct. 1987. 


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Tomorrow:  What SCOTUS did: Round Two….