Supreme Court May Soon Force Taxpayers to Pay For Private Schools

Could individual states soon be required to use taxpayers' money to pay for religious education, potentially siphoning scarce resources from public schools? Not too long ago, such a scenario would have been unthinkable. In 2021, however, the U.S. Supreme Court may be poised to take this dangerous step.

On December 8, the Court heard arguments in Carson v. Makin, a case that could further breach the line between church and state and expand the reach of private school vouchers across the United States. At issue in Carson is Maine's unique tuition assistance program for families who live in rural areas that don't have a public high school. Over half of the school districts in Maine do not have one, affecting around 5,000 students.

The program helps families send their children to schools in other communities but excludes private sectarian schools that would use the state funding for religious purposes, including religiously driven discrimination. Maine does not want to fund such religious activity nor subsidize such discrimination.

The plaintiffs in the case—who are seeking to overturn a lower court ruling that upheld Maine's refusal to fund such religious activity—argue that prohibiting families from using these funds for religious education is a violation of the free exercise of religion.

Citing the Free Exercise Clause is an often-deployed tactic to conceal the real agenda behind these well-funded legal actions: to expand private school vouchers, the marquee item in the privatization agenda championed and bankrolled by Betsy DeVos and far-right libertarian think tanks. 

"They are using the courts to privatize education because voters overwhelmingly oppose vouchers in their communities,” says NEA President Becky Pringle. “No court has ever concluded that states are required to provide public money for private school tuition with no strings attached to ensure education quality or prevent discrimination. Yet the petitioners and their backers seek such a ruling now.”

Using Public Funds for Religious Education

For years, the Institute for Justice (IJ), whose funders have included the Koch brothers and the DeVos Family Foundation, have targeted provisions in state laws and constitutions that forbid public money being used for religious purposes, including private religious schools. 

The Carson case is IJ's latest and potentially most consequential legal action yet.

The Supreme Court has proven to be friendly ground. In 2020, the Court ruled in Espinoza v. Montana Department of Revenue that religious schools could not be excluded from a state tax credit scholarship program (essentially a school voucher by another name) simply because they are religious. However, the decision left in place—for the time being—the distinction between whether the institution was merely affiliated with a religion or would use the funds for religious or sectarian activities. 

"This principle constitutes the last remaining barrier between church and state in the field of education," writes Mark Joseph Stern in Slate. "And Carson may obliterate it."

Under the program at issue in Carson, families in Maine may still send their children to religious schools, but the state will not pay for children to attend those religious schools that promote and instill religious faith.

The IJ, however, hopes the Court will ignore this distinction and force states to subsidize schools that not only are affiliated with a religion but would actually use public funds for religious education.

In October, the National Education Association, joined by the American Federation of Teachers, Maine Education Association, Sanford Federation of Teachers AFT Local 377, and the Service Employees International Union, filed an amicus brief ("friend of the court"). 

The brief argues that Maine’s school funding program doesn't discriminate against religious families because it provides "the same type of educational benefit that Maine offers the rest of its citizens: a free secular education funded by the State."

"Neither the First Amendment nor the Equal Protection Clause entitles Petitioners to a more generous public benefit than Maine provides to its other residents," the brief states.

Furthermore, if the Court sides with IJ on Carson, public funds may soon be directed to private institutions who enforce and teach discrimination. For example, openly LGBTQ teachers and students are not welcome at Bangor Christian School—one of the schools in question in the Carson lawsuit.

While the school has a right to practice these beliefs," writes Stern, "if SCOTUS forces Maine to fund these schools, it will tacitly suggest that such noxious ideas have an equal place in a secular, diverse world."

'Aggressive School Privatization Effort'

For too long, voucher schemes have experimented with children’s education without any evidence of real, lasting positive results. Improving public schools requires more money, not less, and public money should be used to help public schools only, says Grace Leavitt, president of the Maine Education Association. 

“There is a responsibility to provide great public schools for all students—no matter what they look like, where they’re from, where they live, or which language they speak,” explains Leavitt. “Vouchers are the exact opposite of what students need because they strip public schools of scarce funds and give them to private schools that are unaccountable to the public.”

During her four years helming the U.S. Department of Education, Betsy DeVos made school voucher expansion at the federal level her number one priority. Even though her plans ran aground in Congress, they provided a jolt of energy to privatization champions at the state and local levels who had long been looking for ways to implement voucher programs in various and somewhat disguised forms. 

"No court has ever concluded that states are required to provide public money for private school tuition with no strings attached to ensure education quality or prevent discrimination. Yet the petitioners and their backers seek such a ruling now.” - NEA President Becky Pringle

"The fight now is even more intense. If you look at what these GOP legislators are doing after DeVos, you're seeing a brutal and aggressive school privatization effort, so it's moved back down to the state and local level," Jon Hale, associate professor of education policy at the University of Illinois and author of "The Choice We Make."

In mobilizing against the school privatization agenda for years, if not decades, educators and parents have successfully curbed the expansion of vouchers in many communities. However, if the Supreme Court rules that taxpayers in Maine are constitutionally required to fund religious education, the impact on public education could be far-reaching, says Pringle.

“Public schools remain one of our most powerful institutions for maintaining a democratic society and fostering common understanding among our people. The Supreme Court must not make a radical departure from our traditions and force a state to fund private religious schools that provide an education antithetical to the aims of the state’s public schools."

The Supreme Court’s decision in Carson v. Makin is expected by the end of June.