Explainer: A Supreme Court Victory for School Choice and Families

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For decades, opponents of school choice[1] have raised an array of arguments against various means by which public educational funding could be used for alternative schooling options for children.[2] The following has been among school-choice opponents’ most effective arguments: the United States Constitution prohibits the establishment of religion and state constitutions prohibit the payment of state money to sectarian institutions, and consequently private religious schools may not be included as a publicly-funded alternative schooling option. This particular argument has been effective because the federal and state constitutions are fundamental laws that trump practical concerns, policy goals, and statutory law.

In its June 21, 2022, decision in Carson v. Makin, the Supreme Court rendered this argument less effective.[3] This important decision and its implications for school choice and families are deserving of our reflection.

The Court’s decision should inspire state and local efforts to expand and deepen school-choice options.

The Court’s Decision

In Carson, the Court determined that the Free Exercise Clause of the First Amendment to the United States Constitution prohibits a state from excluding from public funding religious schools that are otherwise qualified to participate in a state program solely on the basis of religion.[4] The Maine statute that the Court reviewed in Carson had created a tuition-assistance program that authorized parents who live in school districts that do not operate public secondary schools or contract with nearby secondary schools to choose secondary schools for their children to attend and receive school-district funding to help offset tuition costs. The statute, however, imposed a requirement that any school receiving tuition assistance must be “nonsectarian.”

According to the Court, Maine violated the Free Exercise Clause by unlawfully discriminating against religious schools when it excluded them from otherwise available public benefits. In support of this conclusion, the Court observed that this Clause safeguards against government prohibitions of religious exercise as well as indirect coercion or penalties imposed on religious exercise. The Court also explained that the Clause is violated when the government excludes religious observers from otherwise available public benefits. The Court noted that it had recently applied these principles in two cases in which otherwise available public benefits had been withheld from religious organizations. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Court found “odious to our Constitution” Missouri’s discriminatory exclusion of otherwise qualified grant applicants solely because they were owned or controlled by a church, sect, or other religious entity. In Espinoza v. Montana Department of Revenue (2020), the Court determined that the Free Exercise Clause prohibited Montana from denying tuition assistance under a tax-credit and scholarship program to parents who send their children to private religious schools based upon a state constitutional provision that barred government aid to any school controlled in whole or in part by a church, sect, or denomination.[5]

Maine’s program, the Court determined, likewise violated these free-exercise principles. And, because the program discriminated against some schools simply because they are religious, the strict-scrutiny standard applied. This standard requires Maine to show that its program advances a compelling government interest, but the Court concluded that Maine’s interest in separating church and state more rigorously than the U.S. Constitution requires did not qualify as a compelling interest because the state was discriminating against religion and thereby infringing the free exercise of religion. In reaching this conclusion, the Court also highlighted its 2002 decision in Zelman v. Simmons-Harris, in which it had held that the Establishment Clause of the First Amendment is not violated by a neutral public benefit program in which private citizens “direct government aid to religious schools wholly as a result of their own genuine and independent choice.”

In Carson, the Court also addressed an issue involving the status-use distinction that it had left unresolved in Trinity Lutheran and Espinoza. The Court indicated that it was unpersuaded by Maine’s attempt to redefine the public benefit under the statute as a free public education—according to the statute, the public benefit was the tuition at a public or private school. Furthermore, in the Court’s view, redefining the public benefit to be a secular education so as to exclude religious schools would result in the same prohibited discrimination against religious schools but through semantic manipulation. The Court thus clarified that the Free Exercise Clause forbids government discrimination through classifications or restrictions whether based upon the school’s religious status (i.e., its religious identity) or based upon the school’s use of funding (i.e., its religious instruction).

What the Decision Means for School Choice

The Carson decision, together with the Espinoza, Trinity Lutheran, and Zelman decisions, should mean that the widely used argument that religious schools must be excluded from school-choice options because of constitutional prohibitions against the establishment of religion has been stripped of its force. In Carson, the Court made clear that governments discriminate unlawfully when they exclude otherwise qualified religious schools from programs on the basis of religion. Accordingly, this ruling opens the door to greater participation by religious schools in school-choice initiatives and to more educational options for families.

The Court’s decision should inspire state and local efforts to expand and deepen school-choice options, and as legislators and policymakers work to develop the available options, they may confidently include religious schools. As the argument that including religious schools violates constitutional prohibitions against the establishment of religion fades into the background, other concerns and arguments will come into the foreground. And proponents of school choice must be prepared to spell out the many good policy reasons for school choice, support those reasons with research, and answer new arguments advanced against school choice.

As proponents of school choice engage publicly on the school-choice issue, they should convey a clear and positive message (1) that the principal aims of school-choice initiatives are the enrichment of the lives of their neighbors and their neighbor’s children and the flourishing of their communities, (2) that increasing educational freedom will contribute to that enrichment and flourishing for this generation and the next, and (3) that religious schools share these aims.

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[1] The term “school choice” (the term “education freedom” is sometimes used as well) refers to a range of educational alternatives to traditional public schools that allow public education funding to follow families with K-12 students to the schools or services that they determine best meet their needs and fulfill their desires. These alternatives include public schools, magnet schools, charter schools, private secular schools, private religious schools, home schools, online academies, and other learning environments that families choose.

[2] The following is a sampling of arguments made by school-choice opponents based upon practical concerns and policy goals. School-choice alternatives divert public money away from public school systems and undercut public education. School-choice alternatives simply make private schools cheaper for rich families. School-choice alternatives take stronger students away from public schools, leaving behind students who have no real choice and leading to poorer performance on standardized tests by public school students relative to private school students. Private schools are selective regarding which students they admit and thereby deprive excluded students of any benefits that might flow from school-choice alternatives. Allowing parents to choose private schools while receiving state money leads to segregated schooling and not to the sort of integrated, unifying, civic education that public schools exist to provide. States are less able to ensure the quality of the education in private-school settings than they are in public-school settings, and the best way to ensure a good, quality education for every child is to protect public school systems.

[3] Chief Justice John G. Roberts, Jr. wrote the opinion for the Court, and five justices joined in his opinion. Three justices dissented

[4] The First Amendment states in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

[5] Additional discussion of the Espinoza case can be found in the following Intersect essay: Michael J. DeBoer, 5 Recent Supreme Court Rulings on Abortion and Religious Liberty (July 23, 2020).

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Michael J. DeBoer

Michael J. DeBoer is Associate Dean for Academic Affairs and Associate Professor of Law at Faulkner University, Thomas Goode Jones School of Law. He holds degrees from Liberty University, Southeastern Baptist Theological Seminary, Valparaiso University, and Indiana University. He is currently pursuing a ThM in Christian Ethics at Southeastern Seminary.

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