June 2022 — 

The MLO Minute: “The Supreme Court Orders Public Funding for Private Religious Schools” by Jennifer Grobe, Esq. — 

For the first time, the Supreme Court of the United States (SCOTUS) has ordered a state with tuition vouchers to offer such public funding for private religious schools.

 

In the case Carson v. Makin, SCOTUS ruled Maine could not exclude religious schools from a state tuition assistance program. The opinion specifies that although states are not required to support religious institutions, if a state offers benefits subsidizing private school tuition, it cannot disqualify some private schools solely because they are identified as being religious institutions.

 

Although this decision is limited to an atypical school voucher program implemented in rural areas of Maine, its consequences are likely to be broader. For instance, states may be required to permit the establishment of religious charter schools, which would be publicly funded but privately managed by churches or religious organizations.

 

The movement of public funds to religious education may complicate the analysis of application of civil rights protections for all students, families, and teachers. If a school receives public funding, then it historically has been required to comply with federal and state civil rights laws which prohibit funding in support of religious teaching and discrimination on the basis of race, sex, nationality, and religion. Per the Carson decision, religious schools may conceivably be able to use public funds while potentially maintaining discriminatory curricula and policies, which would appear contrary to existing federal and state civil rights laws if they were in effect in a public or charter school.

 

For example, one of the religious schools in Carson bans LGBTQ+ students, parents, and teachers from consideration for admission and hiring. The school’s curriculum is not religiously neutral and teaches through the lens of a particular form of Christianity. The school is said to instruct students to refute the teachings of the Islamic religion and to accept the husband as the leader of the household. These policies would be unconstitutional if implemented in a public or charter school.

 

Justice Sotomayor wrote in a dissenting opinion:

 “The majority, while purporting to protect against discrimination of one kind requires Maine to fund what many of its citizens believe to be discrimination of other kinds.” 

 

Although no court has ruled a voucher-receiving private school can successfully assert a right to discrimination based on particular religious tenets, many observers believe that Carson opens that worrisome door.