The case of Carson v. Makin, in which the Supreme Court ruled Tuesday, concerns an unusual school voucher program with about 5,000 students in parts of Maine so rural that there are no public high schools. But the consequences of the decision are likely to be broader, offering more legal support for religious institutions, including schools, seeking public funds.
Two Maine families had sued after the state said they could not use public tuition assistance to send their teenagers to Christian schools. The high court ruled in their favor, telling Maine it could not exclude religious institutions from the program because it was discriminatory, violating the Constitution’s Free Exercise Clause.
Despite its limited impact, the decision marks a victory for proponents of school privatization and school choice. In the last year, they have successfully lobbied state lawmakers to create or expand programs that send taxpayer dollars to private schools. These come in a variety of forms — and put taxpayer dollars directly in the hands of parents, who can choose what kind of education they want for their children.
“This ruling affirms that parents should be able to choose a school that is compatible with their values or that honor and respect their values,” Leslie Hiner, vice president of legal affairs for EdChoice, said in a statement. “By shutting out parents with certain values, that’s discrimination run rampant.”
“Faith-based are really critical to their success because they have a very proven track record of educating disadvantaged kids.”
Legal scholars and advocates say the case itself will have little immediate impact, but they worried the case signals that the court will continue to open the door for religious institutions, including schools, to access public funds.
“Overall this is a deeply disappointing decision that further erodes the separation of church and state,” said Daniel Mach, who heads the American Civil Liberties Union’s program on freedom of religion and belief.
The decision follows a string of rulings that have favored religious institutions seeking public dollars. Two decades ago, the court ruled that tuition voucher programs could be used to help students attend religious schools, partly because it was the parent, not the state, making the decision to send them there.
Then, in 2017, the court ruled in favor of Trinity Lutheran Church, which sought a state grant from Missouri to repave the playground at its day care. And last year, the court sided with parents in Montana who wanted to use the state’s tuition voucher program to send their children to Christian schools.
Public school advocates worry that funding for school choice programs cuts in to budgets for traditional public schools.
“If this means that states will now be encouraged to put into place voucher schemes, then that could be a challenge in the future, and the issue of course would be the price tag for voucher schemes,” said Francisco Negron of the National School Boards Association.
There are also concerns over whether the civil rights laws that apply to public schools extend to private schools that receive public funds. In the Maine case, for example, one of the Christian schools bars gay and transgender students and teachers, a practice that would violate federal law if enacted in a public school.
Legal scholars anticipate that, at some point, the court will have to decide whether religious charter schools are permissible. Charter schools are publicly funded but privately managed, including by religious organizations that deliver nonsectarian instruction during the day but provide religious after-school programs.
Courts continue to grapple with whether charter schools are truly public schools and subject to the same civil rights laws, which would preclude the creation of religious charter schools.
A recent ruling spoke to that question: The U.S. Court of Appeals for the 4th Circuit recently held that a charter school’s gender-based dress code, requiring girls to wear skirts, was unconstitutional — just as it would have been at a mainstream public school.
In the 2017 Trinity Lutheran case about religious schools that score state funds, Justice Sonia Sotomayor had worried that the majority was leading Americans “to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” On Tuesday, in a lone dissent, she wrote that now “the Court leads us to a place where separation of church and state becomes a constitutional violation.