The Legacy of Carson for Religious Education
The Supreme Court’s most recent term ended with a bang, delivering historic decisions about the establishment and free exercise of religion, gun control, and abortion -- all in one final blockbuster week.
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The first of these cases was Carson v. Makin, which involved a challenge to a Maine tuition assistance program that provides parents in rural school districts without public high schools the ability to choose an approved public or private school for their children, with the state footing the bill.
Critics and advocates alike have characterized the decision as a landmark ruling that may transform both public and religious education in the United States. The opinion, authored by Chief Justice John Roberts, may be important doctrinally and precedentially, but it is unlikely to have the kind of impact those on both sides of the issue are predicting.
The issue was that Maine prohibits sectarian schools from participating in the program. A school is deemed sectarian if it “is associated with a particular faith or belief system and . . . promotes the faith or belief system . . . and/or presents the material taught through the lens of this faith.”
Two parents who wanted to send their children to sectarian schools that were not approved by Maine sued to strike down the program’s restrictions.
As a result of Supreme Court decisions from the early 1970s, state funding for parochial schools was generally deemed impermissible. The Court began to show a more permissive attitude in 2002, when it upheld an Ohio voucher program that included religious schools. That decision permitted but did not require states to include religious schools in programs funding other private schools.
That middle ground was on display two years later, when the Court upheld Washington State’s refusal to permit state scholarship recipients to use state funds to pursue theology degrees. The Court explained that there is “play in the joints” between what the Establishment Clause prohibits and Free Exercise requires. In other words, the twin mandates of requiring government to permit the free exercise of religion while also prohibiting its establishment by government are not all encompassing. Some things are neither required nor prohibited; they are simply permitted.
That’s where things remained until five years ago, when the Supreme Court invalidated a Missouri program that excluded religious institutions from eligibility to participate in a grant program that funded safety enhancements at school playgrounds. And just two years ago, the Court ruled that Montana acted unconstitutionally when it excluded religious schools from receiving funds provided to other private schools, declaring that “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.”
That is where things remained until Carson v. Makin, which made it clear that not only is the disqualification of a parochial school because of its religious status not justified but also that a parochial school’s exclusion because of the funds are used for religious instruction will also not be tolerated.
That is as it should be.
Principles of neutrality dictate that once a state offers parents the option of choosing a private school for their children, they cannot prohibit them from choosing a religious school. That is in furtherance of the great societal push toward diversity, equality and inclusion, and also prevents government from using the power of its ever-growing purse to disfavor religion.
Fifty years ago, in Wisconsin v. Yoder, the Supreme Court recognized the superior rights of parents versus the state to chart the education course for their children and acknowledged that “government regulation of human affairs has . . . become more detailed and pervasive. The Amish mode of life has thus come into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards.”
The reach and scope of government has grown exponentially since the Yoder decision, as has the hydraulic force that insists on conformity to society’s secular standards. The Carson decision is therefore best seen as a corrective to governmental disfavoring of religion.
Advocates and critics have predicted that the Carson decision will open the floodgates and allow a river of government money to flow to religious institutions. Such pronouncements are understandable, if only because they will surely lead to an increase in the flow of funds into the coffers of advocacy groups that both support and oppose the Carson decision. But the reality is that we are unlikely to see a significant increase in government funding of religious schools anytime soon.
For starters, such funding has already been permissible since 2002, when the Court greenlit states vouchers for use at religious schools. Yet not many new voucher programs have been established since then. And even fewer have the characteristics of the Maine program, which funded private education but excluded religious schools.
Even before the Carson decision, states with the political will to fund religious schools found legal ways to do so. As the Court observed in 2020, when in struck down Montana’s exclusion of religious schools, most “states with no-aid provisions allow religious options in publicly funded scholarship programs, and almost all allow religious options in tax credit programs.”
Demographics also play an important role. Religious school enrollment skews heavily blue. Consider Jewish schools. While there are more than 900 Jewish schools in 38 states educating approximately 300,000 students, 80% of those students are in New York, New Jersey and California —blue states that will not jump to increase funding for private schools after Carson.
All this is not to say that the Carson decision will not have an impact. It will, perhaps most immediately in higher education, where many states have long provided subsidies to private colleges. Traditionally, the price of admission to those programs has been for religious colleges to secularize themselves – by amending corporate charters and mission statements and sometimes by restructuring corporate relationships.
New York’s Bundy Aid, for example, provides unrestricted financial support to independent colleges in the state. Despite a stated goal to “promote and foster the diversity of educational options in New York State” it precludes the participation of sectarian institutions by prohibiting the use of any state aid for “religious instruction or religious worship or for the advancement or inhibition of religion.”
As a result, institutions such as Yeshiva College were placed in a bind: either disclaim the essential religious mission that permeates Yeshiva or be placed at a financial disadvantage relative to the secular colleges it competes with. After Carson, Yeshiva and similar institutions should no longer be forced to make that choice.
Early childhood education is another area that may be impacted. New York City poured enormous resources into its Universal Pre-K programs, and generously invited private and parochial schools to participate. But the price of participation was agreeing to a complete secularization of the Pre-K program. Those limitations should no longer be tenable after Carson.
If this is right, then the legacy of Carson will not be about increased funding for Jewish or other parochial elementary and high schools, but about something far more valuable than money: the right of religious schools to fully and publicly embrace a religious identity, purpose and mission without being excluded or disqualified from programs available to other private schools.
That may not be landmark or historic, but it is definitely worth celebrating.
Avi Schick is a partner at Troutman Pepper, a former New York Deputy Attorney General and the President of the Rabbi Jacob Joseph School
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