Carson v. Makin: Implications for Students’
Civil Rights in Taxpayer Funded Religious Schools
Suzanne Eckes and Preston Green
This article is part of our “Kennedy, Carson, and Dobbs: Law and Religion in Pressing Supreme Court Cases” series.
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In June 2022, the U.S. Supreme Court ruled that when a state funds private school education it must also fund religious education. The state of Maine created a tuition assistance program for rural areas that had no public school option; it funded only those private schools that offered an education similar to one that children would receive at a public school. Because religion is not endorsed in Maine’s public school system, the state did not want to pay for religious schools that endorsed or promoted religion within its tuition assistance program. In its recent 6-3 opinion, the Court held that the tuition assistance program violated the Free Exercise Clause of the First Amendment.
The Carson v. Makin case is significant because it is the first time that the Court required public money to be used to support religious instruction. In the past, the Court had only required funding as it related to the religious status (e.g., the religious identity) of the school. Justice Breyer signaled in his dissent various concerns related to the potential for discriminatory practices in religious schools that receive public funds. This concern was not surprising; at the oral argument for this case, Justice Breyer questioned whether public funds should be used in private religious schools that teach that the “man is the boss of the woman.” He also asked if public dollars should be funneled to schools that are allowed to discriminate against gay teachers and students; both schools involved in the case had anti-LGBTQ policies in place. In her dissenting opinion, Justice Sotomayor raised similar concerns and wrote that: “While purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds.” Although discrimination is not the focus of the case, this decision raises questions about whether religious rights should be prioritized over civil rights.
Education is not mentioned in the U.S. Constitution, and the control of education has been generally reserved for the states. Accordingly, Maine tried to find a way to provide a high-quality education in its sparsely populated rural communities. This tuition program had been challenged in the past on similar grounds, and the program had been upheld by every previous courts for over 20 years.
As the Supreme Court began to shift to the right, the country saw the wall of separation of church and state begin to crumble, a shift that will impact civil rights in the U.S. education system. This was evident in the 2017 Trinity Lutheran v. Comer decision, in which a church that operated a preschool challenged a state program. The church argued that the exclusion of churches from an otherwise neutral and secular aid program violated its rights. The Supreme Court agreed, finding that the program violated the Free Exercise Clause. In 2020 the Court extended its reach even further.
In the Espinoza v. Montana Department of Revenue decision, the Supreme Court ruled that the Free Exercise Clause prohibited a state from excluding sectarian schools from private aid programs. In this case, the state had enacted a tax-credit scholarship program, but these scholarships were not available to religious schools because the state constitution prohibited public funds to be used for any school controlled by a religious institution. As such, religious schools were being denied benefits solely because of their religious status. In both the Trinity Lutheran and Espinoza decisions, therefore, the Court rejected state laws that were grounded in their own state’s constitutions. Unlike what occurred in the Carson v. Makin decision, these cases focused on the exclusion of religious organizations from public funding because of their status. To the contrary, Carson focused on the religious use of funds.
How is this case connected to civil rights?
The two religious schools involved in the Carson v. Makin case engaged in discriminatory practices that would never be permissible in public schools. For example, one of the schools involved in the case teaches students to “refute the teachings of the Islamic religion” and believes that men serve as the head of the household. The schools could expel students and fire teachers whose beliefs or conduct do not align with their religious beliefs. Students who had same-sex parents would not be permitted to enroll. The result of this decision is that taxpayers are funding not only religious education, but, in some cases, religious indoctrination .
After this decision, the attorney general in Maine stated that any school, including private schools, receiving public money may not discriminate under the state’s Human Rights Act. This is a generally applicable law that applies to all schools receiving public money in the state. In Employment Division v. Smith, the Supreme Court held that generally applicable laws can be permissible even when such laws burden religious practice.
It would appear that anti-discrimination laws could fall under the framing articulated in the Smith decision. Although it appeared that some of the justices would like to overturn the Smith decision, the Court has not yet done so. Also, according to Kevin Welner, even if the Court were to adopt a new test that required strict scrutiny review for any governmental action that imposes a substantial burden on the right to freely exercise one’s religion, a state could conceivably narrowly tailor an anti-discrimination law to serve a compelling governmental interest (e.g., protecting students from having to experience discrimination at a private religious school that receives taxpayer money).
However, because the current Court seems to be prioritizing religious rights over citizens’ civil rights, it is unclear how it may address this type of anti-discrimination law. In Carson v. Makin, the Court did not examine this particular question related to discrimination, but in 1983 the Supreme Court’s ruling in Bob Jones University vs. United States held that civil rights trumped private religious schools’ free exercise rights in a different type of challenge. In that case, the private religious schools discriminated against African American students in admissions; school leaders claimed that their sincerely held religious beliefs about inter-racial relationships allowed them to implement discriminatory admissions policies. The Court found that these discriminatory policies were contrary to U.S. public policy. As a result of this decision, private religious schools that discriminated against African American students in this way would lose their tax-exempt status. The Court has also ruled in a 1973 case that private schools that engaged in racially discriminatory practices could be excluded from programs that benefitted from state funds. In Norwood v. Harrison, parents in Mississippi questioned the validity of a state-sponsored textbook lending program that allowed private schools with racially discriminatory policies to participate. The Supreme Court found that these free textbooks were a form of financial assistance that benefitted these private schools and ruled in favor of the parents. In the 1976 Runyon v. McCrary decision, the Court found that private schools violated Section 1981 when they denied Black students admission. According to the Court, prohibiting this type of discrimination was not a governmental intrusion of the privacy related to parental interests. Both Norwood and Runyon did not involve religious schools. It is unclear whether the current Court, which seems to favor religious rights over other rights, would examine this case or related cases involving sex discrimination in the same way.
This decision permits the funding of religious education with public money in the U.S. The Court has weakened the wall between the separation of church and state in decisions in 2017, 2019, and 2022. The crumbling of the wall raises concerns for those states that do not want to use public money to fund discriminatory practices in religious schools.
In a subsequent decision, it is possible that the wall might completely crumble. In Carson v. Makin, for example, Justice Roberts wrote the decision applies only to states that choose to fund private schools. As stated above, only if the state funds private schools must it also fund religious schools. At the same time, however, Justice Roberts seemed to suggest that there is no historic and substantial state interest in preserving secular education. Some may wonder if in a future lawsuit a plaintiff might argue that no state can refuse to fund sectarian schools if there is no historic and substantial state interest in preserving secular education. As Justice Stephen Breyer noted in his dissent, Carson v. Makin has the potential to dismantle secular public education in the United States. If this occurs, courts will need to sort out whether states must fund schools that embrace discriminatory practices. ♦
Suzanne Eckes is the Susan S. Engeleiter Professor of Education at the University Wisconsin-Madison School of Education. She has published widely on education law issues.
Preston Green is the John and Maria Neag Professor of Urban Education at the University of Connecticut’s Neag School of Education. He has written extensively on educational law and policy issues.
Eckes, Suzanne, and Preston Green. “Carson v. Makin: Implications for Students’ Civil Rights in Taxpayer Funded Religious Schools” Canopy Forum, September 28, 2022. https://canopyforum.org/2022/09/28/carson-v-makin-implications-for-students-civil-rights-in-taxpayer-funded-religious-schools/