The U.S. Supreme Court Paves Pathway for Students to Attend Publicly Funded Religious Schools: The Potential for Discriminatory Practices

Abstract

The U.S. Supreme Court examined whether Maine needed to include sectarian schools in a program designed to provide a free public education to students who live in areas that do not operate public schools. In Carson v. Makin the Court ruled that states are now required to fund religious education if they also fund private education. Although not the focus of the decision, this case raises related concerns about states being required to use public funds to support private religious schools that engage in discriminatory practices. This study seeks to examine whether the Court considered the potential for discriminatory practices.

Keywords:

• vouchers
• education
• Supreme Court
• discrimination

Notes

1 Proponents of this decision would describe it as simply including religious schools in tuition assistance programs.

2 We should note that the U.S. Supreme Court also examined other Free Exercise cases during this 2022 term. In Shurtleff v. City of Boston (2022), the Court decided in a unanimous opinion that the city of Boston violated the First Amendment when it rejected an application to fly a Christian flag on one of the three flagpoles it maintained near the city hall. The city had allowed other private groups to fly their flags there. Thus, the city could not deny the Christian flag based on viewpoint. In Kennedy v. Bremerton (2022), the Court found in a 6-3 decision that the First Amendment protected individuals when engaging in personal religious observance after a high school football game.

3 The school only sought a preliminary injunction on two of the six counts – the Free Exercise Clause and the Free Speech Clause. The court denied Bethel relief on both counts. In a later proceeding, the court ruled in favor of the school but only on free speech grounds (Bethel Ministries v. Salmon, 2021).

4 While this litigation was pending, Maine passed a law requiring that to receive state money, the schools may not discriminate. Although a move in the right direction, this requirement will likely be challenged. Similar litigation is taking place in Maryland (Bethel Ministries v. Salmon, 2021).

Additional information

Notes on contributors

Suzanne E. Eckes

Suzanne E. Eckes, JD, PhD is  the Susan S. Engeleiter Professor of Education Law, Policy and Practice in the  Department of Educational Leadership & Policy Analysis, University of Wisconsin-Madison, Madison, WI, USA. [email protected]

Preston Green

Preston Green, JD, EdD is the John & Maria Neag Professor of Urban Education, Professor of Educational Leadership and Law in the University of Connecticut, Storrs, CT, USA. [email protected]