Less than a month ago, attorney and education policy scholar Kevin Welner wrote on this blog that the Supreme Court would probably further erode the separation of church and state in a case known as Carson v. Makin, which was brought to expand voucher policies that provide public money for private and religious education. It did just that on Tuesday, ruling that the state of Maine cannot deny tuition aid to religious schools.

The case is centered on a Maine program that allows the state to pay for tuition at private schools in areas where there is no public school so long as that private institution is “nonsectarian in accordance with the First Amendment.” Two families, along with a libertarian institute, brought a suit asking that courts require the state to include sectarian religious schools in the program.

As my colleague Robert Barnes reported, the Supreme Court on Tuesday struck down that program with a 6-to-3 vote, saying it must allow tuition given by the state to go to religious schools as well as nonsectarian private schools. The ruling was the latest by the court in recent years that have been eroding the constitutional separation of church and state, including a 2020 5-to-4 decision that a Montana tax incentive program that indirectly helps private religious schools is constitutional.

The reaction was what you would expect: Those who support the privatization of public education were thrilled, and those who don’t were appalled.

The nonprofit Center for Education Reform said it was “a victory for students across the nation” and a validation of “parents’ right to direct the education of their children.” Richard Kahlenberg, a senior fellow and leading K-12 education expert at the nonprofit Century Foundation, echoed others in saying the court “further divided Americans by requiring Maine’s state tuition program to fund private religious schools that openly discriminate against LGBT people and non-Christians” — and said it “undercuts the venerable goal of promoting e pluribus unum.”

In this post, Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder’s School of Education, writes about the impact of the Carson v. Makin decision.

By Kevin Welner

The U.S. Supreme Court on Tuesday took the nation closer to converting its charter school laws into voucher laws, including for “the outsourcing of discrimination.” As I explained in a piece on The Answer Sheet last month, the Carson v. Makin case presented the court with the possibility of taking two major steps: (1) whether to do away with something called the “status-use distinction,” and (2) whether to require strict scrutiny for any state action that imposes a substantial burden on religious exercise. The court did the first, but it saved the second question for a later case — one that will probably present itself sometime in the near future.

Below, I again consider those two steps and then reevaluate where we stand — particularly regarding religious charter schools. In this regard, I also revisit the application of the crucial “state action doctrine” (explained below) to charter schools in light of another significant decision that was handed down last week.

The Maine “town tuitioning” law that was challenged in Carson v. Makin helps pay the private school tuition of some students who live in sparsely populated rural areas without a public secondary school. The state’s intent was to bring some private schools within the public system, but with the caveat that the private school must be nonsectarian. While the private school can be run by a religious organization, the education provided must be religiously neutral, without teaching through the lens of any particular faith and without proselytizing or inculcating children with a religious faith. That is, the school can have a religious status, but the public money could not be put to religious use.

This status-use distinction framed the key legal dispute before the court in Carson v. Makin. Two recent decisions from this court had held that a law would be subject to strict scrutiny under the Free Exercise Clause if it excludes religious entities or people from otherwise available public benefits. But both of those cases had declined to decide whether that strict scrutiny extended to laws that merely refuse to fund religious practices with otherwise available public money.

The majority opinion in Carson (written by Chief Justice John G. Roberts Jr. in a 6-to-3 decision) decided, for the first time, that there could be no sensible status-use distinction: “any status-use distinction lacks a meaningful application not only in theory, but in practice as well” (p. 17 of the slip opinion). That is, a law would be subject to strict scrutiny under the Free Exercise Clause if it places restrictions on religious uses of public money. Accordingly, the court held that “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment” (p. 18).

The Carson decision has an immediate effect only on Maine and similar town-tuitioning programs in Vermont and New Hampshire. These programs serve only a handful of students. Moreover, Roberts points out that Maine, if it does not want to fund the religious private schools, “retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own.” Justice Sonia Sotomayor’s dissent suggests the additional option of public schools contracting directly with private schools that agree to provide a public (nonsectarian) education, rather than setting up a school-choice program — thereby distinguishing the process from the 2002 Zelman v. Simmons-Harris precedent that relies on independent parental choice to remove Establishment Clause concerns.

This suggestion from Sotomayor, however, points to a conundrum created by the court’s recent decisions. Once the state sets up a program, it must be open to all — without regard to religious status. So the direct-contracting approach puts the state in the position of picking winners from among the universe of private schools — and excluding religious schools from the eligible pool. For that reason, I don’t share the justice’s confidence that this approach would survive the current court’s scrutiny.

This brings us to charter schools, which are privately operated but publicly funded. Pursuant to the court’s recent decisions (all written by Roberts) in Trinity Lutheran Church of Columbia v. Comer, Espinoza v. Montana Department of Revenue and now Carson, states will probably be forced to let churches and other religious institutions apply for charters and operate charter schools. That is, religious status probably cannot be penalized in the process of opening up new charter schools. Would a law be subject to strict scrutiny if it then requires this charter applicant to set aside its religiously motivated beliefs in running the charter school?

Put another way, must this hypothetical church run the charter school as a public school, or can it be run as a religious private school? To a large extent, the answer to the question depends on something called the state-actor doctrine.

Last week, an en banc (meaning all judges within the circuit) decision in the U.S. Court of Appeals for the 4th Circuit announced a decision that may provide a lifeline for charter school supporters who want to avoid the slippery slope of charter laws effectively becoming voucher laws. The decision was issued in a case out of North Carolina, called Peltier v. Charter Day School. Parents had challenged sexist policies at Charter Day School (CDS) that required female students to wear skirts, since girls are “fragile vessels” worthy of “gentle” treatment by boys — a code characterized by the school as “chivalry.” The main legal argument put forward by CDS was that the 14th Amendment, and its protections against sex discrimination, do not apply to charter schools.

This argument required the judges to apply the state actor doctrine, which is applied by courts to each instance separately — since whether a private person or organization is engaging in state action depends on many factors. Here’s how I recently described the application of the doctrine in charter school cases:

Briefly, courts making a state-actor determination in litigation concerning charter schools will consider — in addition the public funding itself — the following: Whether the private entity is fulfilling (or even replacing) a function that has been understood as public, the legal designation of the private entity as public or nonpublic, the degree to which the private entity is being regulated by the state, and the nature of the contractual relationship between the state and the private entity. Also, in the context of religious teaching, Saiger (2013) points to the core question of whether the specific agent (the charter-school teacher) is employed by or controlled by the state — with the answer generally being “no.” [internal endnote citations omitted]

As I’d noted, there are exceptions to the general rule that charter schoolteachers are not public employees, and North Carolina is one of those exceptions. Section 115C-218.90(a) (4) of the state’s statutory code provides, in part, that “the employees of charter schools are public school employees.” The Peltier court held that CDS is a state actor subject to the Equal Protection Clause.

While this provision making charter employees public employees was not the only factor weighing in favor of the court’s ultimate determination regarding state action, it may have been determinative. That is, a similar case in a state without such a provision may have been decided differently. Other states may, therefore, be wise to adopt language similar to that in North Carolina, legally specifying that charter school employees are government employees (even if hired and paid by a private management organization). Such states may be able to keep their charter schools subjected to anti-discrimination laws and prohibited from religious proselytizing.

If charter schools are state actors, they cannot engage in religious teaching or discrimination. The Peltier litigation did not, however, involve any claim by the school that its sexist dress code arose out of protected religious beliefs. If religious-liberty claims were to be asserted around a comparable policy adopted by a charter school run by a religious organization, the state-action inquiry should be very similar, if not identical, and the charter school should be prohibited from engaging in discrimination.

But as today’s Carson v. Makin decision illustrates, the introduction of free-exercise protections could greatly complicate the overall analysis. If courts side with a church-run charter school, finding that state attempts to restrict religiously infused teachings and practices at the school are an infringement on the church’s free-exercise rights, then the circle is complete: Charter school laws have become voucher laws.

Contemplating such a future, Sotomayor’s dissent warns: “If a state cannot offer subsidies to its citizens without being required to fund religious exercise, any state that values its historic anti-establishment interests more than this court does will have to curtail the support it offers to its citizens.”

Similarly, Justice Stephen G. Breyer considers the court’s elevation of the Free Exercise Clause over the Establishment Clause — its requirement that states cannot use discretion to separate church and state. He wrote in a dissent:

Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means — under the majority’s interpretation of the Free Exercise Clause — that the State must pay parents for the religious equivalent of the secular benefit provided?”

Sotomayor added, “Today, the court leads us to a place where separation of church and state becomes a constitutional violation.” The result, Breyer warns, is a further splintering of society, with winners and losers. For instance: “Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.”

The dissenting justices also pointed out that the Maine parents were seeking to send their children to private Christian schools with clearly discriminatory policies (with the discrimination aimed at the LGBTQ community). Sotomayor wrote about the irony of the court protecting the plaintiffs against alleged discrimination while ignoring these practices: “The majority, while purporting to protect against discrimination of one kind requires Maine to fund what many of its citizens believe to be discrimination of other kinds.” Maine then is put in the untenable position of being forced to fund religious teaching and discriminatory practices if it wants to continue helping its most rural residents.

Importantly, the court’s majority expressly declined to resolve issues around these school policies. In a footnote, the chief justice wrote: “Both dissents articulate a number of other reasons not to extend the tuition assistance program to BCS and Temple Academy [the two private schools], based on the schools’ particular policies and practices. … Maine rightly does not attempt to defend its law on such grounds, however, because the law rigidly excludes any and all sectarian schools regardless of particular characteristics.”

This means we will have to wait until the court revisits its 1990 decision in Employment Division v. Smith, which I discussed in my earlier analysis of the then-pending Carson decision. In Smith, the court held that the Free Exercise Clause does not prevent enforcement of a neutrally applicable law (such as a nondiscrimination law) that only incidentally hinders a religious practice. The majority of justices on the current court seem interested in changing that rule. But they did not engage with the issue in the Carson decision. No court has yet decided whether a voucher-receiving private school can successfully assert a free-exercise right to religiously motivated discrimination — but that sort of challenge seems inevitable.

We are left then with a situation where we can expect litigation involving whether charters can be granted to churches, and we can expect to see such charters in the near future. We can then expect to see litigation around whether those church-run charters can successfully assert their Free Exercise rights in an attempt to run the school without restrictions on proselytizing and religiously motivated discrimination.

Must these churches run their charters as public schools or are they free to run them as private schools, with religious teaching and even religion-motivated discrimination? If states can require them to run the charter schools as public, adhering to existing rules prohibiting the infusion of religion, then the state is arguably infringing on religious practices; if allowed to run them as private schools, then states’ charter-school laws have effectively been converted into voucher laws. As Breyer’s dissent points out, the Supreme Court has created its own conundrum.

This is, of course, not the only overreach of the current Supreme Court. Pollsters sprang into action after the leak of Justice Samuel Alito’s draft opinion in Dobb v. Jackson Women’s Health Organization — signaling an overturning of the historic Roe v. Wade ruling. The main conclusion from these polls was that Americans disapprove of the court’s presumed decision. But a secondary conclusion is worth noting here, as I write about today’s voucher decision in Carson v. Makin: a drop in Americans’ approval of the Supreme Court.

The Marquette Law School has asked Americans whether they “approve or disapprove of the way the Supreme Court is handling its job” in seven polls since September 2020. This poll found the court to now be underwater by 11 points — by far its worst showing. Less than two years earlier, when their polling started, the public approval of the high court was 2-to-1 positive (66 percent versus 33 percent). Similar trends are seen in the Gallup polls, with the court now at or near historic lows.

The Supreme Court has historically been relatively trusted by Americans, who have generally seen it as rising above the partisan politics of the other two federal branches. As we stare now at the threatening “age of instability” in electoral politics and civic cohesion, a trusted court system would be enormously helpful. While he’s a staunch conservative, Roberts presents himself as an institutionalist and gradualist, at least relative to his conservative colleagues. But this activist, right-wing Supreme Court has used Carson v. Makin to once again toss aside precedent it found ideologically displeasing.

The earliest of the Gallup public opinion polls mentioned above (from May 1972) captured a time when the Supreme Court was still requiring school desegregation. President Richard M. Nixon’s campaign attacked the court’s decisions, and he was rewarded with a lopsided victory that November. Earlier, Presidents Dwight D. Eisenhower and John F. Kennedy had controversially federalized state National Guard troops in Arkansas and Mississippi to enforce the high court’s desegregation orders. Yet the public retained much more confidence in the court than it does today. It is one thing to disagree with the court; it’s another to see the court as using the law as simply a veneer for political decisions — what Laurence Tribe calls “politicians in robes.”

So now might be a good time to ask how far the Supreme Court can go without losing so much legitimacy that it can no longer be an effective arbiter of key disputes.

Here’s the ruling:

Supreme Court Ruling by Valerie Strauss on Scribd