The Potential for Race Discrimination in Voucher Programs in a Post-Carson World

ABSTRACT

Between 2017 and 2022, the U.S. Supreme Court examined three cases that involved states that tried to limit the use of public money to support religious-affiliated schools. The Supreme Court found a violation of the Free Exercise Clause in all three cases. Although not the focus of the Court’s opinions, these cases may have created avenues for discriminatory practices in publicly funded state school voucher programs. In elevating free-exercise rights above Establishment Clause concerns, the Court’s decisions may have serious implications for students’ civil rights in schools. This article specifically examines whether the growth of school voucher programs in the context of these recent Supreme Court decisions creates a pathway for racial discrimination in participating voucher schools. We first explore the impact of the three Supreme Court decisions. Specifically, we argue that when the Court eliminated distinctions between policies denying funding because of religious status and policies denying funding for religious uses and when it elevated free-exercise arguments, it may have opened additional avenues for discrimination. Thus, we next address whether participating voucher schools can refuse admission to Black students. To set the context for this discussion, we provide a brief historical analysis of case law that has previously supported race-based discrimination on religious grounds. We show that although past court cases and federal tax policy have created a bulwark against such discrimination, the recent rulings favoring free exercise rights raise concerns. If free-exercise rights trump civil rights, some voucher statutes may create an alternative funding stream for modern-day “segregation academies.”

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

¹ Sometimes states prohibit public funds from reaching private religious schools due to the state constitution Blaine Amendments. These provisions were aimed at preventing states from aiding religious institutions. Although it is well-documented that oftentimes states’ decisions to include Blaine language were anti-immigrant and anti-Catholic, Derek Black contends that almost half of states that limit private and religious school funding predate the Blaine Amendments. And even when the laws were originally tainted by discriminatory intent, it is not entirely clear whether states’ decisions to retain the language are still rooted in bigotry. For example, it is possible that some provisions are instead tied to propublic education sentiments and/or compliance with the Establishment Clause (D. Black, 2023).

² Strict scrutiny refers to a form of judicial review employed by courts to determine whether a law or policy is constitutional. In order to survive strict scrutiny, the law or policy must further a compelling governmental interest and it must be narrowly tailored to achieve that interest.

³ Other scholars have already pointed out that some voucher schools even before Carson openly discriminated against students with special needs, English learners, and LGBTQ+ students (Donheiser, 2017; Eckes et al., 2016; Mead & Eckes, 2018) We argue, however, that after Carson, even if a state’s law specifically prohibits such practices, these laws may not be upheld if courts preference free-exercise arguments. This will be explained further when we discuss Bethel Ministries v. Salmon (2021).

⁴ Some scholars have noted that religious beliefs that were once used to justify race discrimination are now being used to justify sex-based discrimination (Curtis, 2012; Zhang, 2022). Zhang (2022) contends that private religious schools that continue to rely on these arguments should lose their tax-exempt status.

⁵ While this study focuses specifically on admissions, discriminatory practices involving the curriculum and dress codes would be worthwhile topics for future research. Relatedly, it would be interesting to explore whether those families who choose to attend schools of choice with discriminatory policies in place due so because of a lack of other options (see S. Maxwell, 2023).

⁶ For example, the (Southern Poverty Law Center SLPC, 2022) reported that there were 11 active Christian Identity groups in 2022 and that within the White power movement, Christian Identity is the most radical.

Additional information

Notes on contributors

Preston Green

Preston Green is the John and Maria Neag Professor of Urban Education at the University of Connecticut, where he is also a Professor of Educational Leadership and Law. Dr. Green is an educational law scholar who has written extensively on the topics of educational access and school choice.

Bruce Baker

Bruce Baker is Professor and Chair of the Department of Teaching and Learning at the University of Miami School of Education and Human Development in Coral Gables Florida. His research focuses on public elementary, secondary, and higher education finance and legal issues pertaining to the organization, governance, and financing of charter schools.

Suzanne Eckes

Suzanne Eckes is the Susan S. Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin School of Education. Much of her research focuses on how civil rights laws impact education policies in K–12 public schools.