Pushing States to Attach
Regulatory Strings to Vouchers
James G. Dwyer
This article is part of our “Kennedy, Carson, and Dobbs: Law and Religion in Pressing Supreme Court Cases” series. If you’d like to check out other articles in this series, click here.
In its Carson v. Makin decision, the Supreme Court held that the State of Maine violated the Free Exercise rights of parents who wished to send their children to religious schools using Maine’s tuition assistance program, by excluding “sectarian” schools from eligibility. Maine is unusual in paying private school tuition because some of its counties have no public high school. (Voucher programs in other jurisdictions subsidize private schooling even for parents in localities that have public schools.) Maine’s Attorney General had advised the state legislature that Establishment Clause strictures precluded use of taxpayer dollars to fund religious schooling. But the Carson Court declared that church-state separation concerns cannot justify discrimination against religious providers of private schooling.
The Court had already held, two years earlier in Espinoza v. Montana Department of Revenue, that states cannot exclude schools from participation in a program of public assistance (there, a tax credit for private scholarship programs) simply because they are associated with a religious denomination. Maine therefore argued that it excluded sectarian schools from its tuition payment program not just because they are associated with a religious organization but also because they do not provide the equivalent of a public school education and would apply the funds to religious uses.
Different people have different intuitions about the slipperiness of the slope from A) giving religious providers of services, such as education or shelter for the homeless, any state financial assistance to B) the state’s imposing a religious orthodoxy on citizens. And they have different intuitions about fairness to religious individuals and organizations who want to share in state support of private activities. As someone who has experienced and studied religious schools in depth, my own intuition regarding schooling is consistent with the Espinoza ruling; recipients’ religious affiliation per se does not make state aid problematic. But I would add the caveat: the state must ensure that all recipient schools are using state funds to further the state’s secular purposes. Many religious schools do share the state’s aim of providing a good secular education and preparing all students for a broad range of careers and other opportunities; their academic courses look very much like those in public schools. And from an economic perspective, if the aid is significantly less than the school’s entire cost of operations then one might say it is supporting the secular education and not catechism classes or religious services (which for many schools constitute a small fraction of the school week). Moreover, the state’s commitment to ensuring that all children receive a good education should extend to children in religious schools, who generally do not choose to be there rather than in a public school or nonsectarian private school.
In the Carson litigation, Maine depicted the particular schools at issue as infusing religious instruction and admonition into subjects ordinarily secular in nature, to such an extent that state money sent to those schools would necessarily go towards “religious uses.” Maine argued that it excluded those schools for that reason; the schools would use the state money for purposes other than—indeed, potentially in conflict with—those for which the state created the tuition assistance program.
Maine’s regulations, however, were not well crafted to exclude such schools. They required that any participating school be “nonsectarian,” which the State’s Department of Education defined broadly to exclude any school that “promotes the faith or belief system with which it is associated.” It is difficult to imagine a school that associates itself with a religious faith yet does not in any way promote that faith, not even with religious symbols on walls or the occasional prayer. In application, then, the regulations appear to exclude all religious schools. Maine’s DOE claimed that in administering the program it does not limit its review of applications to whether a school has a religious association, but rather also focuses on “what the school teaches through its curricular and related activities, and how the material is presented.” But it admitted that it actually engages in little scrutiny of applicant schools’ internal practices, and there was, apparently, no evidence that it had approved any other religious schools.
Based on its view of the schools at issue, Maine presented two complementary arguments to the Supreme Court: 1) We only want to fund private equivalents to a public school education. 2) We do not want taxpayer funds used for religious proselytizing. The Court found the first argument implausible, because Maine’s regulations are so permissive for “nonsectarian” private schools that they can receive state funds even if they have admissions policies, curricula, hiring standards, and assessment practices quite different from those of public schools. The only way in which Maine required participating schools to be like public schools, the majority perceived, was in being nonsectarian. And that, the Court said, was simply another way of saying they could not be religious. The state cannot justify discrimination against religious entities on the grounds that they are religious. Makes sense.
What makes little sense is the Court’s explanation for rejecting Maine’s aversion to funding religious activities, an aversion that certainly aligns with the Founders’ concerns underlying the Establishment clause. (Notably, in another case last term, Kennedy v. Bremerton School District, the conservative majority of the Court signaled that it plans to apply a “history and tradition” test from now on to assess the viability of Establishment Clause claims.) Justice Breyer’s dissent in Carson presents the famous Thomas Jefferson statement equating such funding to tyrannical compulsion of private individuals to pay to promote other people’s faith. The coherent—but inadequate—part of the Court’s explanation for why the government may fund religious activities alluded to the entanglement problem that arises from attempting to distinguish religious from non-religious uses of state funds. That point on its own would prove too much, unless the Establishment Clause is to be erased; presumably the state must sometimes assess whether a practice or program is religious or not, whether an organization is a church or not, and so forth, if there is going to be any limit on government payment for religion. For example, the Carson majority sought to distinguish the Court’s 2004 decision in Locke v. Davey, which upheld exclusion of ministry training from a state scholarship program, but that decision rested on a perception that the degree program at issue was “essentially religious” and that the Plaintiff was training to become a “church leader.”
The only other explanation the Carson majority gave for dismissing the religious-use concern is incoherent. It stated that the Court’s past decisions “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. `[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.’” The implicit major premise of this syllogism seems to be: “If you really want to use state money for religious proselytizing and training, then the state cannot cite that as a reason not to give you the money.” That is, of course, bizarre. Yet based on that implicit bizarre premise, the Court said quite clearly that “use-based discrimination” is just as “offensive to the Free Exercise Clause” as status-based discrimination and that the Establishment Clause does not give states “a permission to engage in use-based discrimination.”
This declaration is extraordinary, even shocking. Neither the majority nor the dissenting Justices considered the implications beyond schooling, but there is no basis in the majority opinion for confining this new principle to schooling, and the potential additional applications are unlimited. State funding for “the arts,” “the humanities,” “community education,” “public lectures,” “public celebrations,” and so forth presumably must now be open to religious organizations for any of their activities that they can plausibly claim fall under those headings. That could certainly include weekly worship services in church, which can entail artistic expression (e.g., music), reading of literature, historical and ethical instruction, and celebrations. Even with respect to schooling, the Court seems to have left Maine no room to exclude religious academies in which children do nothing but study religious texts, as is the case with some yeshivas, or watch proselytizing videos all day. Twenty years ago, religion law scholars cited state funding of jihadist training facilities as a hypothetical example of something that would obviously violate the Establishment Clause, but now it seems that denying funding to jihadist youth training is an obvious case of Free Exercise Clause violation. And if you do not like this new spin on the religion clauses, the Carson majority suggested to Maine, then just stop funding private schools altogether.
Or, though the Carson majority did not suggest this, the state might impose rigorous secular academic requirements as a condition for any private school’s participation in government financial assistance programs. Real accountability measures would likely have the effect of excluding “schools” whose main, or only, goal is proselytization. Incidentally, it would likely also exclude schools that aim to provide some secular education but do not do it well because their primary aim is inducing ideological conformity; many such schools have precious few resources, and some even lack teachers. From a child-centered perspective, states ought to be limiting funding for private schooling to those that provide a good secular education, not because of concern about taxpayers but because state funding of some schools, perhaps including Bangor Christian and Temple Academy, amounts to state support for and involvement in general educational deprivation and, more specifically, autonomy-defeating, cognitively oppressive, tyranny over children—including, ironically, denying children their religious freedom.
Certainly, if a state explicitly adopted a program of funding organizations that aggressively impose a Christian worldview on children, this would be constitutionally problematic not just because of discrimination against non-Christian organizations but also because it violates children’s inherent right to freedom of thought and expression. The state could not do this to children in public schools and should not be able to do it indirectly by aiding private entities to do it. This might have been in part what Maine was getting at when it argued that it wished to limit its funding to schools that provide an education like that in public schools; whereas it expects its public schools to foster critical and independent thinking and freedom of expression, proselytizing academies deliberately do the opposite. The Court, though, is not going to allow states any longer to use a “nonsectarian” criterion as a shortcut to accomplishing any such aim. They must do so more directly, and cannot assess whether a school is “too religious,” but only whether it benefits children academically.
What states might also do is impose non-discrimination conditions on participation in the tuition assistance program. Some such conditions would, it seems, exclude the religious schools under discussion in Carson. According to Justice Sotomayor’s dissent, those schools have policies under which they might “deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians.”
What to watch for, then, are two possible responses states might have to the Carson Court’s startling declarations about discrimination against religious uses of state funds—that is, that the Establishment Clause does not require such discrimination and the Free Exercise Clause does not allow it. Some states might begin funding religious organizations with abandon, sending them money for anything they do that can plausibly be characterized as analogous to something non-religious organizations do. The only cause for restraint for some state legislatures might be that they must be even-handed with all religious groups; they cannot fund only their favorites. Conversely, state legislatures that retain anti-establishment scruples (perhaps pushed to do so by state constitutional provisions) might finally attach meaningful regulatory strings to their various private school financial assistance programs, from direct payments or “vouchers” to tax credits for scholarship programs or expense reimbursements. Were many states to do the latter, Carson might turn out to be more of a boon for children, and less of a blessing for religious organizations, than it at first appears.♦
James G. Dwyer is the Arthur B. Hanson Professor of Law at William & Mary School of Law. He is the author of Vouchers Within Reason: A Child-Centered Approach to Education Reform and Religious Schools v. Children’s Rights, and he is a co-author of Homeschooling: The History and Philosophy of a Controversial Practice.
Dwyer, James G. “Pushing States to Attach Regulatory Strings to Vouchers.” Canopy Forum, November 4, 2022. https://canopyforum.org/2022/11/4/pushing-states-to-attach-regulatory-strings-to-vouchers/