BOULDER, CO (May 12, 2022) – In the coming weeks, the U.S. Supreme Court will hand down a series of decisions that may transform American society. One of those decisions is in a case called Carson v. Makin, the latest in a series of cases brought to expand the use of private school vouchers. This decision in Carson may be particularly radical and transformative, explains University of Colorado Boulder professor and NEPC director Kevin Welner.

In a policy memo titled, The Outsourcing of Discrimination: Another SCOTUS Earthquake?, Welner, an education law and policy scholar, contends that the majority of Supreme Court justices, in deciding Carson v. Makin, will likely adopt a rule that requires public funding in Maine to be used to subsidize religious teaching and proselytizing. But the Court may also take the nation far beyond that determination.

Specifically, the Court may require that whenever a state decides to provide a service through a non-state employee (e.g., through a contracting mechanism), the state will face the highest level of judicial scrutiny if it “discriminates” against churches and church-affiliated service providers that infuse their beliefs into the provided services. Moreover, the Court may impose that same heightened scrutiny to limit any state anti-discrimination enforcement if providers’ religious beliefs direct them to engage in that discrimination against people because of, for example, their gender identity or sexual orientation.

Welner explains that such a judicial ruling would amount to a license to outsource discrimination. While a conventional public school cannot violate a state’s anti-discrimination laws, a school run privately by a religious organization might be allowed to do so. He points in particular to charter school laws as creating this possibility, and he describes how Supreme Court cases in recent years have laid the groundwork for courts to require authorizers to grant charters to religious organizations.

“The Supreme Court is just a few small steps away from transforming every charter school law in the U.S. into a private-school voucher policy,” says Welner. In addition, he argues, charters run by religious organizations would likely gain a constitutionally protected right to discriminate against, for example, members of the LGBTQ+ community.

If this happens, states that abhor such discrimination may find themselves forced to pull back on private contracting to provide public services, ending policies that allow private operators of everything from social services like foster care, health care, prisons, and charter schools.

Find The Outsourcing of Discrimination: Another SCOTUS Earthquake?, by Kevin Welner, at:
 https://nepc.colorado.edu/publication/carson-makin