This week, the U. S. Supreme Court ruled 6–3 in Carson v. Makin that a Maine program that bars “sectarian” schools from receiving state-funded tuition assistance is a violation of the Free Exercise Clause of the First Amendment. The decision is a welcome acknowledgment that religious schools must not be penalized for loyalty to their faith tradition nor tempted by government into conformity with public schools.
Many rural communities in Maine do not have public schools. Since the nineteenth century, Maine has had a program under which families in such communities (more than half of school districts in the state) may receive grants to send their children to public schools in other districts or to private schools of their choosing. But since 1980, state officials have excluded schools that they consider “sectarian” from this program. The state defines a “sectarian school” as “one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.” The Carson v. Makin case was brought on behalf of Amy and David Carson and other parents who sought state funding to send their children to private schools that reflected their religious convictions.
In a dissent, in which he was joined by Justices Kagan and Sotomayor, Justice Breyer insisted that “government neutrality” on religious matters was essential, and thus Maine was justified in excluding schools seeking to “teach and promote religious ideals.” The majority opinion points out, however, that “there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.” The Court’s majority opinion in Carson notes that “we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” It adds that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”
Significantly, the majority opinion rejects the state defendants’ attempt to make a distinction between the religious identity and the educational practice of faith-based schools. Maine officials argued in their defense that they were not making schools ineligible for tuition payments because of their religious identity; after all, that would violate the Supreme Court’s recent rulings in Trinity Lutheran and Espinoza. Discrimination on the basis of an institution's religious status might now be impermissible, Maine conceded, but government may legitimately deny public funds if they will be used for a religious purpose. A school with merely a residual religious identity, such as many New England “prep schools,” would thus be eligible to participate in the scholarship program, but not a school “promot[ing] the faith or belief system with which it is associated and/or present[ing] the material taught through the lens of this faith.” The Court rightly rejected Maine’s contention, pointing out that, in Our Lady of Guadalupe School v. Morrissey-Berru, it had affirmed that “[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 Court warned that “[a]ny attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism.”
Carson v. Makin thus raises an important issue for religious freedom litigation: What if government funding for faith-based schools comes at the expense of the school's distinctive mission? The existence of tuition assistance programs such as Maine's may encourage private religious schools to change or water down their mission in order to receive funds. The availability of public funding creates a strong incentive for abandoning such aspects of a school’s mission; indeed, a leading Catholic school in Maine abandoned its distinctive religious character when the program requirements changed in 1980.
In To Empower People (1977), Peter Berger and Richard John Neuhaus argued that Americans should rely less on government institutions and more on “mediating structures,” especially faith-based organizations, which they described as “the value-generating and value-maintaining agencies in society.” They warned, however, that “there is a real danger that such structures might be ‘co-opted’ by the government in a too eager embrace that would destroy the very distinctiveness of their function.” In The Ambiguous Embrace, I recorded many instances of public funding programs, in the United States and abroad, leading to such co-opting. I found that the leaders of religious institutions, consciously or unconsciously, often engaged in “preemptive capitulation,” conforming their norms and even goals to those prevalent in their government-operated counterparts.
Carson v. Makin offers a reminder of the danger of assuming that the formal identity of a faith-based school is reflected in its actual mission and practice. Of course, the decision, while it provides a strong defense against government interference with the distinctive character of faith-based schools, does not protect them from surrender to cultural influences in ways that render their identity meaningless. In the Netherlands, where the government has fully funded faith-based schools for a hundred years and provided strong legal protections for their distinctive missions, many Catholic and Protestant schools are indistinguishable from their secular counterparts. Sadly, that is also often the case in the United States.
Nevertheless, we welcome the Supreme Court's explicit recognition that faith-based schools that retain a strong distinctive mission must not be punished for it. This recognition should, in turn, renew the commitment of those working in or supporting a school with a religious mission to ensure that the mission is evident in every aspect of the school’s life and work.
Charles L. Glenn is professor emeritus of educational leadership and policy at Boston University.
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