In tandem with its reversal of Roe v. Wade, the Supreme Court stands to substantially alter everyday life in America with its recent decisions of Carson v. Makin, amplifying its support for public funding of religious schools, and Kennedy v. Bremerton School District, allowing prayer in public schools.
The significance of Kennedy is blunt. With the Court ruling 6-3 along party lines that the dismissal of a football coach at a public high school in the state of Washington for holding post-game prayer meetings violated his First Amendment right to free exercise of religion, we can expect similar meetings as well as Bible study sessions, nativity pageants, and the like in public schools across the country. Such events will surely lead some students to feel coerced into participating for fear of disappointing peers and authority figures. In her dissent, Justice Sonia Sotomayor indeed noted that a lower court had determined that some players said they joined the coach's prayer meetings "because they felt social pressure to follow their coach and teammates."
The significance of Carson is more subtle but equally profound. In Carson, the same justices ruled 6-3—as forecasted on this site following oral arguments in December—that Maine's exclusion of religious schools from partaking in its Town Tuitioning Program likewise violated the right to free exercise of religion. This program covers all or part of the cost for students in rural districts without high schools to attend either public or nonsectarian private high schools in nearby districts or beyond (if the school is public, the total cost is covered; if it is private, coverage is pegged to per-pupil statewide average spending). With this decision, we can expect religious groups in considerably rural states across the country to lobby legislators to create programs similar to Maine’s.
But there’s another dimension to Carson, which derives as much from what it did not say as from what it did. To grasp the wider implications of Carson requires understanding what is missing from the decision.
While many countries—such as Belgium, France, and the Netherlands—have for many years allowed a considerable portion of their students to attend religious schools with public funding, the Court did not cite such foreign practice. In the Netherlands, in fact, 55 percent of students attend religious schools with public funding.
Why then didn’t the Court cite foreign practice? This indifference to foreign practice holds, as well, for the majority opinions in Zelman v. Simmons-Harris in 2002, validating the provision of government-funded vouchers to cover tuition at religious schools in Cleveland, and Espinoza et al. v. Montana Department of Revenue in 2020, mandating that if a state permits students to attend private schools with scholarships funded by a tuition tax-credit program, it cannot bar religious schools from participation.
American jurisprudence does tend to stick to domestic precedent, but that custom cannot explain this disregard for education policy abroad. After all, former Justice Anthony Kennedy, who voted with the majority in Zelman, was a prominent champion of deference to foreign practice and inspired others to follow in his path. In authoring the majority opinion in Lawrence v. Texas in 2003, Kennedy famously drew on British legislation and the European Convention on Human Rights to overturn state laws criminalizing homosexual relations. Two years later, Kennedy made use of the United Nations’ Convention on the Rights of the Child in writing the majority opinion in Roper v. Simmons to nullify the constitutionality of the death penalty for juvenile offenders.
The answer to this question is crucial. To have invoked foreign practice would have been to invite trouble. Publicly funded religious schools in such countries as Belgium, France, and the Netherlands are regulated to a degree that American proponents of religious schools would find unacceptable.
In Carson, Chief Justice John Roberts conceded in this light that while Maine public schools must adhere to specific standards for instruction in a range of subjects, that is not so for nonsectarian and religious private schools. Though accredited by the New England Association of Schools and Colleges (NEASC), such schools, wrote Chief Justice Roberts, “are exempt from these requirements, and instead subject only to general ‘standards and indicators’ governing the implementation of their own chosen curriculum.”
As Justice Stephen Breyer pointed out in his dissent, one of the two schools at the heart of Carson, both of which are accredited by NEASC, considers academic and religious education “completely intertwined,” so much so that “in science class, students learn that atmospheric layers ‘are evidence of God’s good design.’”
At religious as well as nonsectarian private schools funded with public money in such countries as Belgium, France, and the Netherlands, curricula must comport with national standards (meaning, for example, no attribution to divine design for atmospheric composition). In addition, teachers must be certified and guaranteed access to union membership while members of the LGBTQ community cannot be barred from either enrollment or employment.
The parameters of NEASC and other independent school organizations across the United States do not come close to such expectations, as Justice Breyer’s point about science education indicates. Indeed, many religious schools, such as the two defining Carson, refuse to hire gay or lesbian teachers.
While Maine passed an amendment to its human rights act to bar schools from receiving public money if they discriminate based on sexual orientation or gender identity, that does not mean other states motivated by Carson to create similar programs will enact such protections; nor does it mean that Maine’s amendment will go unchallenged on the grounds that it interferes with an institution’s right to free exercise of religion.
In a guest essay in The New York Times, Aaron Tang, a professor of law at the University of California, Davis, cited this amendment as a model for deflecting the impact of decisions like Carson, but he neither acknowledged that other states implementing town tuitioning programs might not take such action nor recognized that Maine’s amendment might not last.
Setting aside whether public funding of any form of religious schooling poses a threat to democratic values by fostering societal division and conflict, as Justice Breyer claimed in his dissent, there can be no doubt that public funding of lightly regulated religious schooling poses precisely such a threat.
Policymakers abroad have understood this. And it is basic to our own tradition. The Supreme Court made this clear in 1925 in Pierce v. Society of Sisters, ruling unanimously that Oregon could not, as decided by a statewide referendum in 1922, bar private schools from operating but that it was empowered to carefully regulate them.
“No question is raised concerning the power of the State reasonably to regulate all schools,” the Court declared in Pierce, “to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”
With Carson building on Zelman and Espinoza, public funding of religious schooling appears irreversible. But that does not mean the message of Pierce and the lessons from abroad cannot be heeded. With Kennedy, the public school as neutral common ground is over.
Samuel E. Abrams
June 30, 2022