Supreme Court Opens a Path to Religious Charter Schools: But the Trail ahead Holds Twists and Turns

Education Next Institute, Inc. Harvard Kennedy School, Taubman 310, 79 JFK Street, Cambridge, MA 02138; Fax: 617-496–4428; e-mail: [email protected]; Web site: https://www.educationnext.org/the-journal/

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Court Litigation; Religious Factors; School Choice; Religious Schools; Private Schools; School Districts; Constitutional Law; State Aid; State Policy; Educational Policy; Kindergarten; Elementary Secondary Education; Charter Schools

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In June 2022, the U.S. Supreme Court held in "Carson v. Makin" that Maine violated the Free Exercise Clause of the First Amendment by excluding religious schools from a private-school-choice program--colloquially known as "town tuitioning"--for students in school districts without public high schools. Writing for the majority, Chief Justice John Roberts concluded that "the State pays tuition for certain students at private schools--so long as the schools are not religious. That is discrimination against religion." "Carson" leaves at least two important questions unanswered. The first concerns the decision's scope. The holding makes explicit that "a State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious." Carson is silent, however, on what it means for the government to "subsidize private education." The second question concerns which regulations states may lawfully impose as a condition of participation in private-school-choice programs. "Carson" was an important victory for religious liberty that promises to have wide-ranging implications, both within and outside of K--12 education. The full extent of those implications, including the answers to the two questions addressed here, remains to be seen.

ERIC

2023

EJ1387319