Editor’s note: This article appears in the Winter 2023 issue of Education Next.
In June 2022, the U.S. Supreme Court held in Carson v. Makin that Maine violated the Free Exercise Clause of the First Amendment by excluding religious schools from a private-school-choice program—colloquially known as “town tuitioning”—for students in school districts without public high schools.
Writing for the majority, Chief Justice John Roberts concluded that “the State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”
Carson was, in some ways, unremarkable. For the third time in five years, the court held that the Constitution prohibits the government from excluding religious organizations from public-benefit programs, because religious discrimination is “odious to our Constitution.” But the fact that Carson was not groundbreaking does not mean that it is not important.
On the contrary, Carson represents the culmination of decades of doctrinal development about constitutional questions raised by programs—including parental-choice programs—that extend public benefits to religious institutions. Among the most important of these questions is whether there is “play in the joints” between the First Amendment’s religion clauses—the Free Exercise Clause and the Establishment Clause—that might permit government discrimination against religious institutions in some situations.
Going forward, the answer in almost all cases is likely to be no. Both clauses, the court has now made clear, require government neutrality and prohibit government hostility toward religious believers and institutions. (The court clarified—but did not overturn—its 2003 decision in Locke v. Davey. In that case, the justices upheld, by a vote of 7–2, a Washington State law prohibiting college students from using a state-funded scholarship to train for the ministry; that law, the court ruled, did not violate the Free Exercise clause.
Arguably, Carson narrows and effectively confines Locke to its facts by characterizing it as advancing only the “historic and substantial state interest” against using “taxpayer funds to support church leaders.”)
Carson does, however, leave at least two important questions unanswered. The first concerns the decision’s scope. The holding makes explicit 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.” Carson is silent, however, on what it means for the government to “subsidize private education.”
In particular, it leaves unanswered the question of whether the nondiscrimination mandate applies to charter schools, which are privately operated but designated “public schools” by law in all states—and supported by tax dollars. Does the Free Exercise Clause require states to permit religious charter schools?
The second question concerns which regulations states may lawfully impose as a condition of participation in private-school-choice programs. Right after the court issued its decision, for example, Maine’s attorney general, Aaron Frey, clarified that all private schools taking part in the program, including religious schools, are bound by the Maine Human Rights Act, which prohibits discrimination on the basis of sexual orientation or gender identity.
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Oklahoma Attorney General John M. O’Connor released an advisory opinion on Dec. 1, which concluded in essence that enforcement of Oklahoma’s statutory prohibition on religious charter schools was likely unconstitutional given a series of rulings by the United States Supreme Court. Nicole Garnett made a similar case in a policy brief for the Manhattan Institute in 2020. Describing the legal issues as “complex” would be to grossly understate the matter. After reading both documents at the other end of the above links it seems likely to me that people will attempt to open religious charter schools (meaning schools that teach religion as truth) and that the issue will be tied up in court for many years.
While I am open to challenge and reserve the right to be persuaded, put me down as the founding member of a camp that holds religious charter schools as “permissible, mandatory and a bad idea.”
I’ll leave the permissible and mandatory arguments to those trained in constitutional law. I find Garnett’s interpretation of recent Supreme Court rulings persuasive on both counts. Even if O’Connor and Garnett prove right about constitutional law, (they may or may not be) it does not mean that it is a good idea for religious groups to open charter schools.
People deserve an equitable share of K-12 funding to pursue the education they find best for their child, whether that involves religion, philosophy etc. Current policy hugely discriminates against families desiring a religious education. Families are the clear customer of private schools, which are driven by voluntary association and exchange and operate in a relatively permissionless space. With regards to charter schools, this is sadly murky.
Charter schools also receive funding on a per-pupil basis, but given that they are authorized by the state, the more intrusive the state authorizer, the more the state becomes the master at the expense of families. The combination of powerful opposition and cartelism on the part of many charter school supporters have combined in recent years to create many state charter sectors that lack many charter schools. In one case, any charter schools.
Mississippi’s authorizer allowed exactly one charter school to open last year. Congratulations, Natchez; the rest of you, better luck next year. Arizona’s authorizer withdrew charter authorization from a school that Stanford University scholars found had a rate of academic growth 43.4% above the national average between 2008 and 2018. This school didn’t space out their recess periods enough to suit state statute — tsk, tsk — and Arizona has far too many highly effective schools. Oh, wait you can never have too many! Oops, there I go again with that whole “logic” thing. This is politics. Politics does not need to make the least bit of sense.
The King James Bible translates Matthew 6:24 as “No man can serve two masters: for either he will hate the one and love the other; or else he will hold to the one and despise the other. Ye cannot serve God and mammon.” Charter schools represent a large advancement over regulatorily captured school districts attempting to engage in central planning to suit their dominant interests. In charter schooling however, the state is still a master. Those hoping to serve God should choose wisely when it comes to religious charter schools: permissible and desirable are not one in the same.
