Educational freedom has been hampered over the years in two important ways: There are only a limited number of programs that let families exercise choice, and the programs that do exist often come with restrictions. An example of the latter is the prohibition within some school-choice programs on using public funds at private religious schools.
This week, the U.S. Supreme Court took another step toward true educational freedom by declaring such restrictions an unconstitutional violation of the free exercise of religion. While the ruling isn’t likely to have immediate effects on school choice in Georgia, it does provide further protection for current and future programs.
The case known as Carson v. Makin came from Maine, which allows sparsely populated school districts to contract with private schools or provide tuition assistance to families rather than operating public schools of their own. But the law requires families to use the funds at “nonsectarian schools.” Two families sued, arguing this provision infringed their First Amendment rights.
The court agreed. Writing for the six-member majority, Chief Justice John Roberts said the Constitution does not allow states “to identify and exclude otherwise eligible schools on the basis of their religious exercise.” The ruling follows a 2020 decision, Espinoza v. Montana Department of Revenue, which forbid that state from discriminating against families that wanted to use tax credit scholarships at religious schools.
Detractors of the Carson ruling, including the three dissenting justices, argued that allowing families to use public funds at schools that offer religious instruction amounted to an unconstitutional establishment of religion. But as Roberts wrote, “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”
This focus on “the independent choices of … recipients” is crucial. How the money is spent is up to families, not public officials. If a school-choice program required the funds to be spent for religious instruction, the dissenters might have a point. But Maine’s program does the opposite, allowing any type of school except a religious one. That is not “establishment of religion”; it’s discrimination against religion.
Now-former Justice Stephen Breyer, in his dissenting opinion, notes that the United States has “well over 100 different religious groups, from Free Will Baptist to African Methodist, Buddhist to Humanist. … People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division.”
But the presence of so much religious diversity actually underscores the majority opinion. Maine’s program does not favor one religion or denomination over the others; it forbids participation by all religious groups. The effect is to favor nonreligion over religion – which is a choice about religion in and of itself. Again, it amounts to discrimination against religious schools as a category.
The reaction from opponents has been predictable. The headline for one story held that the court had “forced Maine to fund religious education.” This is ludicrous. As Roberts wrote:
“The State 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. As we held in Espinoza, 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.’”
Exactly so. Only in minds inclined toward authoritarianism is it true that everything not forbidden is compulsory.
It is morally right to have school-choice programs, for the benefit of those who cannot get a quality education at their assigned public school. And based on the evidence about student achievement, financial impact and more, it is also the wise thing for a state to do. But no law compels states to do the morally right or wise thing.
However, once a state does the right thing and establishes school choice, one thing that is forbidden is discrimination.
In Georgia, religious schools are already eligible to participate in our private choice programs. But that fact, and the programs themselves, are not without detractors. With its Carson ruling, the Supreme Court will help ensure those programs remain free from religious discrimination.