After imposing a strict church-state separation for decades, the Supreme Court appears poised to allow — and in some cases even require — more government funding of church-run schools.
Legal experts say that could open the door to church-sponsored charter schools operating with public funds in many cities.
Previously the high court held the Constitution called for a clear separation of church and state, which had long been interpreted to mean that public funds could not flow to religious schools.
But in recent years, the court’s conservatives have argued this exclusion amounts to discrimination against religion.
On Wednesday, the court will hear a new test of church-state separation in a case from Maine, which has no public high schools in some rural communities.
The state pays tuition to send those students to private high schools, but only if they are “nonsectarian” schools. The state adopted this rule 40 years ago believing it was required as a matter of church-state separation.
Now this seemingly small case is at the center of a large dispute over when religious schools are entitled to public funding. And it arrives at a time when the court’s conservative majority has been strengthened.
Conservative justices in recent years have been insisting that the tradition of church-state separation should be cast aside because it grew from an anti-Catholic bias in the late 19th and early 20th centuries.
“It was an open secret that ‘sectarian’ was code for ‘Catholic,'” Chief Justice John G. Roberts Jr. wrote last year describing the common state laws that prohibit sending tax money to schools affiliated with a church.
These restrictions were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,” he said in Espinoza vs. Montana.
His June 2020 opinion overruled Montana’s state high court and held that parents who sent their children to a Christian school were entitled to a state scholarship on the same basis as those who went to other private schools. The Constitution “condemns discrimination against religious schools and the families whose children attend them,” he wrote.
Two other justices said they would go much further and rule that states were free to promote religion.
The 1st Amendment forbids laws “respecting an establishment of religion,” which had been seen as barring the government from subsidizing religion. But Justices Clarence Thomas and Neil M. Gorsuch disagreed.
“The modern view which presumes that states must remain … virtually silent on matters of religion is fundamentally incorrect,” Thomas wrote. “Properly understood, the Establishment Clause does not prohibit states from favoring religion.”
The Maine dispute has drawn national attention. Lawyers for a religious-rights group in Texas and the school-choice movement in Virginia are representing David and Amy Carson, who sent their daughter to the Bangor Christian School, but were denied state tuition money.
“Government discriminating against parents because of their religious choices for their children is not only unconstitutional, it’s wrong,” said Kelly Shackelford, president of First Liberty Institute in Plano, Texas. “We are hopeful the Supreme Court will put an end to these violations, not only for the sake of the Carsons … but for the sake of all parents in America.”
Maine Attorney General Aaron Frey counters that the state and its taxpayers are paying for a “public education” for all children and do not want to “subsidize religious exercise” for some.
He pointed out the Bangor Christian School’s curriculum guide promises to teach children to “recognize G-d as the Creator of the world” and to “refute the teaching of the Islamic religion.”
Four liberals dissented from last year’s ruling in the Montana case, including Justice Ruth Bader Ginsburg. She died three months later, and now with Justice Amy Coney Barrett in her place, the court’s conservatives may be poised to go further.
A crucial question is what are the limits of this nondiscrimination rule. Does it apply only to special state scholarships or voucher programs, or could it apply broadly, including to charter schools that can be privately owned but publicly funded?
Experts in education law say the next battleground will be charter schools, which have been growing in California and in many parts of the nation as privately run, taxpayer-funded alternatives to traditional public schools.
Notre Dame law professor Nicole Garnett, a former Thomas clerk, predicts there will be a move “in the near future to permit religious charter schools,” either through the courts or the states. If these “charter school programs are properly considered programs of private school choice,” they can take advantage of a high court ruling forbidding the exclusion of religious schools, she said.
But Francisco M. Negron, chief counsel for the National School Boards Association, urged the court to move with the caution.
“This is a case about the historic right of the states to use public dollars for a public purpose,” he said. Another ruling requiring public funds for religious schools could “put us on a slippery slope that ends with the funding of religious education with public dollars,” he said.
Some legal experts foresee the more conservative high court deciding that parents have a right to send their children to religious schools at public expense.
“The really big question that Carson tees up is whether by funding public schools, the state incurs a duty to fund religious schools as well,” said Aaron Saiger, a law professor at Fordham in New York. This could trigger “a cataclysmic change in the place of public education in American society and government. But if one extends the kinds of arguments that have been winning in the Supreme Court, this may be the future.”