The Washington PostDemocracy Dies in Darkness

Supreme Court likely to drop school voucher bombshell

Fencing outside the U.S. Supreme Court on May 16. (Bonnie Jo Mount/The Washington Post)

The public focus on upcoming Supreme Court rulings has been on Roe v. Wade, the 1973 ruling that legalized abortion nationwide, and the Dobbs v. Jackson draft opinion overturning that precedent. But the court will also soon be handing down a decision in another case that could cause an earthquake for public education.

The case is Carson v. Makin, which was brought to expand voucher policies that provide public money for private and religious education. The case involves a program in Maine that allows the state to pay for tuition at private schools in areas where there is no public school — so long as that private institution is “nonsectarian in accordance with the First Amendment.” Two families, along with a libertarian institute, brought a suit asking that courts require the state to include sectarian religious schools in the program.

Similar requests have been rejected by lower courts. But, as my Post colleague Robert Barnes reported, during hearings last December in Carson v. Makin, the conservative justices on the Supreme Court — who represent the majority, “seemed ready … to extend a line of recent rulings favoring religious interests” and “were critical” of the Maine program that disallowed public funds from going to religious instruction.

A movement to privatize public education in this country has been gaining strength at a time when traditional public school districts are facing some of their most severe challenges. Most states have some school “choice” program, and during the coronavirus pandemic, a number of Republican-led legislatures pushed through new legislation to expand charter schools and voucher programs. Most of them lack serious safeguards to ensure that students, families and taxpayers are protected from “discrimination, corruption and fraud.”

Privatization of public education gaining ground, report says

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. A ruling in favor of the families would “amount to a license to outsource discrimination,” according to Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder’s School of Education. He is also an attorney and a professor of education.

Supreme Court’s conservatives critical of tuition program excluding religious teaching

Welner also wrote that a ruling against the state could affect charter schools, which are publicly funded but independently operated. A Carson ruling in favor of the families may mean that states could be seen as “engaging in discrimination if they did not allow a church or religious entity to operate a publicly funded charter school as a religious school.”

Schools in traditionally operated school districts are not allowed to violate Maine’s anti-discrimination laws, but a school run privately by a religious organization may be able to under such a ruling. The Supreme Court has in recent years laid the legal groundwork for courts to require authorizers of charter schools to allow religious organizations to be granted charters without regard to their religious status.

“The Supreme Court is just a few small steps away from transforming every charter school law in the U.S. into a private-school voucher policy,” he writes. “Further, the nation may be facing a future of religious organizations proselytizing through charter schools that have been freed from obeying anti-discrimination laws — with LGBTQ+ community members being the most likely victims.”

Here’s the full policy brief:

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