The Biggest Education Court Case in Decades
Possibly the most significant education-related Supreme Court case since Brown v. Board of Education was decided last week.
Carson v. Makin, a case involving schools in Maine, has been understandably overshadowed by the reversal of the precedent of Roe v. Wade and its protection to a woman’s right to an abortion, but its underlying motives — a conservative court removing previously settled federal rights — is the same, and its far reaching impacts could be significant.
The case is predicated on a quirk of the most rural state in the nation. Because nearly half of districts in Maine do not operate their own secondary school, students are provided tuition assistance payments that follow them to the schools they choose to attend, a kind of quasi voucher system.
While this is all public money, private schools have been allowed to receive those payments provided the school is accredited by the state and is “nonsectarian.” This did not necessarily exclude religious private schools, but it did require those schools to not promote a specific religious faith in their curriculum nor could they discriminate against students on the basis of any protected class.
This was the legal rationale under the Establishment clause of the First Amendment, which prohibits the government from establishing a state religion. Courts have previously held this to mean that taxpayer money could not be compelled to support explicitly religious activities, including religious schooling, and that public schools could not engage in the exercise of specific religious activities.
This restriction was challenged on the grounds that it violated a different part of the First Amendment, the right to free expression, with plaintiffs arguing that if Maine was going to fund private education with public money, excluding religious schools was discriminatory and violated the Constitution.
The conservative bloc of the Supreme Court sided with the plaintiffs, voting 6-3 to require Maine to make public funds available to those who wish to attend explicitly religious schools, with Chief Justice John Roberts arguing that free exercise trumps the Establishment Clause and that “a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits,” in this case the tuition assistance money.
The implications are significant, paving the way for public money to flow toward any private education provider. As Jennifer Berkshire, education journalist and author of The Wolf at the Schoolhouse Door: The Dismantling of Public Education and the Future of School previously told Educational Endeavors, the siphoning of public money into private schools via vouchers is an explicit goal of conservative education reformers, and the Supreme Court has just removed the last obstacle at the federal level to this goal.
While similar to the overturning of Roe, this is likely to primarily be a source of upheaval in states with conservative legislatures. Berkshire tells us to look toward California, where a school voucher law will be on the ballot this fall.
According to this new precedent, private schools could receive this public money while rejecting students on the basis of race, gender, and sexual orientation, a clear break with the longstanding purpose of public education, open and available to all. Different states will likely handle these issues differently.
States are unlikely to have legislation on the books addressing these issues. In anticipation of the Supreme Court’s decision in Carson v. Makin, Maine passed a new law forbidding any private school (religious or not) to discriminate based on gender identity and sexual orientation.
Illinois is one of the states that currently provides vouchers for low-income students to enroll in private schools, but as of yet, there is no law protecting students from being discriminated against by these schools. If the people of Illinois do not want their tax dollars to go towards schools that may exclude students based on their religious or gender identity, or sexual orientation, they will have to act to protect those rights.
As long as the Supreme Court holds its current ideological composition, the federal government will not be doing that particular job.