A Supreme Win for School Choice


There was an important decision by the U.S. Supreme Court last week that has not attracted a lot of attention. The case is Carson v. Makin.

It involved a challenge to how the state of Maine made public education available to high school students in sparsely populated school districts. Previously, the state provided public funds to such students to attend a distant public school or an independent school of their choice — but refused funding for those wanting to attend sectarian schools. A group of parents who wanted to send their children to sectarian schools sued, claiming that Maine’s law violated the Free Exercise Clause of the First Amendment by treating religious persons and groups differently than their secular counterparts.

In a 6-3 decision, the court agreed. According to Chief Justice John Roberts, who wrote for the majority, the issue is straightforward: “The State pays for tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” And he noted that “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

In recent cases, the court distinguished between religious institutions that receive public funds for secular projects — like a playground — and schools that use public funding for religious purposes. Now, that distinction — known as the “status/use distinction” — has been abandoned. Instead, the court made clear that the Free Exercise Clause requires the government to treat religious persons and groups equally with their secular counterparts.

The decision is significant for several reasons, not the least of which is that it opens up funding possibilities for sectarian schools, including Jewish day schools, and sweeps away distinctions in how sectarian schools can use funds that are made available to other educational institutions. Such permissible use of government funding may lead to the rebirth of the Catholic school system. And it should open opportunities for Jewish schools to get funding for some of their programs — although the scope of such funding will likely be tested on a case-by-case basis.

That court’s liberal justices were troubled by the majority position and worry that the conservatives on the court are moving to dismantle the wall of separation between church and state that the Framers of the Constitution sought to create. While we respect the minority view, we do not understand the Carson decision to “direct the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction,” as Justice Sonia Sotomayor claimed in dissent. Rather, as the majority notes, neither Maine nor any other state government must offer benefits to private persons or groups. It is only when a program is offered by the state — as was the high school education funding by the state of Maine — that entitlement to the funding must be religion-neutral, since discrimination against religion is as unconstitutional as promoting religion itself.


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