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Church and state

The implications of Supreme Court’s ruling in Carson v. Makin are huge for both America’s public schools and the separation between church and state


Hannah Decker for the Deseret News

When Amy Carson and her husband, David, decided to sue their state, they didn’t set out to be part of a landmark Supreme Court ruling. It was much simpler than that. “Our town has an elementary and middle school, just no high school,” Carson says of where the family lives in Maine. And the private school the Carsons wanted to send their daughter to in the neighboring city of Bangor just so happened to be Christian.

The Carsons’ hometown of Glenburn, a town of 4,500 situated on the emerald shore of a warm-water lake in rural Maine, is so tiny it doesn’t have its own ZIP code. There are 143 districts like theirs in Maine: rural areas that lack public high schools, a deficit the state makes up for by paying to send children to local private schools instead — but only if they’re “nonsectarian,” that is, nonreligious. 

While the Carsons wanted to send their daughter to Bangor Christian, religion wasn’t the appeal. Carson told me that the family doesn’t go to church “as much as we should,” explaining that she doesn’t go at all and that her husband goes only a few times a year. “We really do work seven days a week,” she says. Her husband is a general contractor and she keeps the books for the business. 

The draw of Bangor Christian was that it’s a great school. “You’re talking small class sizes and things like that, and it really helped her,” says Carson. 

There was also an emotional appeal: It happened to be the school both Amy and David Carson attended. All of David’s siblings went there, too, and his mom had been a teacher there. 

Tuition was expensive — $5,950 annually — and they’d been girding themselves for the financial sacrifice for years, but Carson says they were happy to pour their resources into their daughter. There’d been another child before her, Carson says, but that one had died young. So their girl was all they had and they were going to give her the best that they could. 

Besides, parents in their district had eight other private schools to choose from, Amy says. Why shouldn’t Bangor Christian be among the choices? It seemed like the state was discriminating against religious schools; that nonsectarian clause was a hit on families’ First Amendment right to the free exercise of religion. And that’s what their lawsuit took aim at. 

The Carsons didn’t even bother asking Maine to pay their daughter’s tuition at Bangor Christian because they knew the state wouldn’t fund education at a nonsectarian school, Carson says. Instead, they joined a lawsuit against the state’s commissioner of education, Pender Makin — a case that was decided by the Supreme Court this summer. 

Carson v. Makin has been called “the sleeper case.” Flying under the radar, it barely made the headlines as justices issued landmark decisions on abortion and prayer in schools. But stakeholders on all sides argue that the ramifications of the Carson decision will prove just as important. The ruling has huge implications for America’s public schools as well as the separation between church and state.

After lower courts ruled against the families, the case made its way to the Supreme Court, where, in a 6-3 ruling, justices sided with the three families, declaring that the state of Maine’s “nonsectarian” stipulation does indeed discriminate against religion. While advocates of religious liberty considered the decision a victory, in the dissenting opinion, Justice Sonia Sotomayor wrote: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” 

While that’s up for debate, the case may have broader implications for K-12 education. The decision expands on two previous Supreme Court rulings that support the privatization of education and the use of public funds for religious schooling: the 2020 decision in Espinoza v. Montana Department of Revenue, which says that tax-funded scholarships could be used at private, religious institutions, and the 2002 landmark ruling in Zelman v. Simmons-Harris, which allowed Ohioans to use publicly funded vouchers to send their children to religious schools in certain circumstances. 

The ruling has huge implications for both America’s public schools and the separation between church and state.

Kevin Welner, director of the National Education Policy Center and a professor at the University of Colorado at Boulder School of Education, says this trend toward privatization represents a hollowing out of the country’s public schools — slowly transforming a system that was designed to be a great equalizer into one that Welner likened to a developing country. 

But advocates of educational freedom — a catchall for a variety of different programs, including school choice, vouchers and public funding of private, religious schools — say that providing parents with a wider range of choices benefits children and will energize the educational system. “I would think that (competition) would encourage schools — public schools and other schools — to become better,” says Carson. Educational freedom also allows parents to send their children to schools that will reinforce the values they’re teaching at home, Carson adds. 

Proponents of educational freedom say that the justices’ decision doesn’t explicitly support religious schools. “The Carson … ruling didn’t say that states have to fund religious schools,” says Andrew Handel, director of the Education and Workforce Task Force of the American Legislative Exchange Council, a conservative nonprofit that drafts model legislation to share with state legislatures across the country.

Asked if, in the wake of Carson, there might be a flurry of state legislation that would secure states’ rights to channel public funds toward private, religious schools, Handel says that such legislation isn’t necessary. “That being said, I think that the case makes it easier for state legislatures to pass expansive programs in educational freedom.” 

Further, proponents of educational freedom argue that the so-called “wall of separation between church and state” came from a letter that Thomas Jefferson wrote and doesn’t actually appear in the Constitution. The public school system was also never meant to be completely secular, says Rick Hess, the American Enterprise Institute’s director of education policy studies. “The public school system as we know it was created in the 1830s and 1840s (as) the common school” in part because “Horace Mann and his buddies wanted to stop Catholic kids from being Catholic and make them read the Protestant Bible in school,” Hess says, referring to Mann, who is widely known as the father of American education.

As for the argument that school choice will hollow out public education, proponents of educational freedom point out that even without formal school choice, the free market creates options for families with means: Those with the money to do so choose to move into certain neighborhoods that are home to certain schools, public or otherwise. “The question is who is going to have school choice,” says Michael McShane, director of national research at EdChoice, a nonprofit that aims to advance educational freedom and choice. “It’s not whether or not there’s going to be school choice or whether or not it exists. It’s ‘Who is going to have it right now?’”

On top of that, public schools are already segregated and suffer from the problems that come with concentrated poverty, McShane acknowledges. And there’s no silver bullet. So rather than trapping students in public schools, why not offer parents the option of sending their children elsewhere, including private, religious schools? 

Educational freedom initiatives “can’t solve poverty. They can’t cure racism, so all of those things are still going to impact kids and the options that they have,” McShane says. “The idea, though, is to try and give as many kids as possible more choices.”  

But, for some Americans, school choice doesn’t mean more options. It means fewer, says Alison Gill, vice president for legal and policy matters at American Atheists, because it opens the door to public funding for institutions that discriminate on the basis of religion and students and families from LGBTQ backgrounds. 

“We’re moving away from public school systems designed to serve the entire community and we’re moving toward publicly funded schools operated by churches … and other providers outside of community control,” Welner says. 

In the long run, those who are advocating now for increased public funding for private schools will probably want to decrease those subsidies, Welner says, explaining, “The goal of privatization … is also to reduce tax burden.” 

This means that we’ll eventually move away not only from public funded education but a system “where families will be bearing the cost of the burden,” says Welner, leading to even more stratification and discrimination than already exists in the country. Like India and other developing countries, some American families “will be able to afford quality education for children but some will not,” Welner says. 

“Education provides a private benefit and a public benefit. When my daughter goes to school, the schools are providing her and my family with private benefits by helping her to succeed in life. But our schools also serve a public benefit; they serve our economy, they serve our democracy,” Welner says. “Education in the U.S. is being transformed — and the transformation is one that puts a lot of benefits at risk.”

Amy Carson disagrees.

She pointed out that, prior to 1981, Maine did offer parents the option of sending their children to private religious schools if there was no public school in the area. That “nonsectarian” clause was imposed in 1981, so, as she sees it, the recent ruling restores the previous system. “These types of programs have been around for hundreds and hundreds of years and we (the country) managed just fine,” she says. 

If the Supreme Court ruling is read narrowly, she adds, it will only apply to 2% of the state’s population. 

With their daughter already in university, the ruling won’t apply to the Carsons. But their individual situation was never really the point — joining the lawsuit was always less about them and more about the good of the community, Carson says, “Any time you can help families out, it’s a win.”  

This story appears in the October issue of Deseret Magazine. Learn more about how to subscribe.