Last week, the Supreme Court’s 6-3 decision in Carson vs. McKinney navigated a new legal landscape for lawyers on both sides of the school choice debate.
The court ruled that excluding religious schools from a state education program in Maine was “discrimination against religion.” The program uses taxpayer dollars to help rural families who live away from a public school go to a private school instead.
Writing on behalf of the majority, Chief Justice John Roberts noted that a state does not need to fund a private, religious school, if public funding is to be extended to secular, private schools, it must also be extended to religious schools.
Now for the debate is the broader implications of this ruling, as well as its impact on public school funding.
Jessica Levine, director of the Advocacy Campaign Public Funds Public Schools, said the ruling currently only applies to Maine and neighboring Vermont and New Hampshire, where similar tuition programs already exist. This will not apply to any state operating a school voucher program.
“In light of Carson’s decision, a state cannot separate and exclude religious options from a program where other programs are allowed to participate. By doing so, it is paving the way for many, many more school-choice programs.”
Michael Bindas, a lawyer at the Institute for Justice, who represented the main plaintiffs
“Tuition programs are not vouchers. Vouchers are a separate statutory scheme to provide funding for the option of an additional private school on top of public schools that is available to all and this is not the case in these three states for historical and geographical reasons, ”Levine said.
Michael Bindas, a lawyer at the Institute for Justice who represented the main plaintiffs, said that while it is true that the lawsuit will have the most immediate impact on the administration of these three state programs, he sees the far-reaching consequences of the verdict.
“In light of the Carson decision, a state cannot separate and exclude religious options from a program where other programs are allowed to participate,” Bindas said. “By doing this, it’s going to pave the way for many, many more school choice programs.”
According to Bindas, the ruling repealed the non-supportive amendments found in the constitutions of 37 states. Sometimes referred to as the Blaine Amendment, these provisions prohibit government funds from going to private, religious institutions.
Bindas said the Carson decision removes the barrier to non-supportive amendments for states willing to establish school choice programs.
“The legal cloud has been lifted and we are going to see many more state legislatures adopt these programs,” Bindas said.
But not everyone agrees with this interpretation.
“There have been many attacks in the stream of helplessness that have not been successful,” Levine said.
Last year, the South Carolina Supreme Court rejected an attempt by a coalition of private colleges to repeal the state’s non-supportive amendment, finding that the amendment did not come from hostility to religion and refused to hit it.
“People recognize that we always strive to get enough money for our public schools and so people have included firewalls in their state constitution to keep that public money in public schools,” Levine said.
After Carson, Levin said public school advocates must prioritize educating the state legislature about the impact of the school choice program on public dollar allocations.
“If they are going to create a system where parents get public school funding [for their kids] They’re opening a Pandora’s box to finance private schools, to finance discrimination, to attend private schools, “Levine said.
Advocates for public schools in Maine, Vermont and New Hampshire say they are also considering a new campaign to scrap or reform tuition programs to ensure only public schools receive public dollars.
“We are talking about a Supreme Court decision that forced taxpayers to send their tax dollars to a religious institution. It’s another opportunity to siphon off public dollars from public schools, “said Don Tiny, president of the Vermont chapter of the National Education Association, a national teachers’ union.
Tiny said he would encourage union members to press the districts to remove any private school option – religious or secular – from their tuition programs.
“It’s important that our members stay engaged in this,” Tiny said, “because the whole system is at risk.”
Also up in the air after Carson’s decision is how future judges can explain the tension between a person’s religious rights under the First Amendment’s free practice clause and the state’s anti-discrimination policy.
Following the Supreme Court’s announcement of its decision, Maine Attorney General Aaron Frey issued a statement saying that any private, religious school accepting government dollars must comply with the anti-discrimination provisions found in the state’s human rights law. Last year, Maine legislators amended the law to explicitly prohibit discrimination on the basis of gender identity or sexual orientation in any publicly funded educational institution, including those funded through tuition programs, including private schools.
According to court documents, the two religious, private schools – Bangar Christian School and Temple Academy – located at the center of the Carson case, have clear policies to prevent the admission of LGBTQ students or the appointment of LGBTQ teachers.
In his statement, Frey said schools participating in the state’s education program must “comply with the anti-discrimination provisions of the Maine Human Rights Act and that some religious schools must eliminate their current discriminatory practices.”
This means that despite the Supreme Court’s decision to exclude religious schools from Maine’s state education program, schools that refuse to comply with the state’s anti-discrimination policy – such as Bangar Christian School and Temple Academy – will remain ineligible for public funding.
Dmitry Bam, who teaches constitutional law at the University of Maine School of Law, says Maine’s human rights law is a generally applicable legal policy, so religious institutions are ineligible for exemptions, but he said the policy could be tested.
“I think the field of law is flowing. I think the AG is right that under the current law, a generally applicable legal policy applies to everyone, so there is no need for religious exemptions, ”Bam said. “But the court seems skeptical about that line of reasoning and, at least in recent cases, has found the necessary way for states to grant that waiver, so I hope this is a developed field of law.”
Lawyers for both sides agreed that this tension could be taken to court in the future. In last year’s ruling in Fulton v. Philadelphia, the court unanimously found that a religious foster organization that refused to refer LGBTQ couples was entitled to an exemption from the law prohibiting such discrimination because the city had made exceptions to its anti-discrimination policy.
In Carson v. McKinney, the court did not answer the question of whether a religious institution could sincerely cite religious beliefs for violating the law against discrimination.
“The law we challenged was only on religion,” Bindas said.
“Are other cases coming down the road, where there is a problem of interaction between school choice and anti-discrimination laws? I doubt they will, ”Bindas said. “How these cases will come out – I don’t know.”
In his dissent in Carson, Justice Stephen Breyer wrote that the ruling ignored the long-respected “wall of separation” between church and state so that Maine could use taxpayer dollars to pay for a religious insight.
Following Carson, Left said it was conceivable that a religious private school, currently excluded from the tuition program under Maine’s anti-discrimination policy, could go to court to challenge state policy by claiming their religious beliefs deserve their exemption.
“When you say you’re going to publicly fund schools that are involved in discrimination, it’s not a victory of choice for families, it’s a choice for schools – it’s a choice to discriminate against them, a choice to exclude students.”
Jessica Levine, director of the Advocacy Campaign Public Fund Public Schools
Such an argument would challenge the precedent set by the Employment Division v. Smith in a 1990 case where the court found that generally applicable laws do not require religious exemptions, even if the laws refer to a religious practice. The left, however, says the current court may be more sympathetic to the argument for religious freedom.
“There are a lot of conservative judges who think this is the wrong procedure and states need to show some high standard of evidence before granting exemptions,” Bam said. Justice Samuel Alito, the court’s new conservative majority leader, argued in Fulton’s favor that Smith should be dismissed.
For public school advocates like Levine, this possibility poses even greater danger.
“When you say you’re going to publicly fund schools that deal with discrimination, it’s not a victory of choice for the family, it’s a choice for schools – it’s a choice for them to discriminate, a choice to exclude students,” Levin said.
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