Understanding Carson v. Makin
It didn’t take long for anti-public school advocates to try to misuse the recent Supreme Court decision, Carson v. Makin, to try to invalidate nondiscrimination provisions meant to protect students who attend voucher schools. Luckily, they failed this time – just as they should. Taxpayers should not be forced to fund schools that discriminate.
Carson is the June 21 decision that says when a state provides funding to private schools to provide secular education, it must also fund private religious education. To reach its decision, the court ignored decades of precedent and one of the most foundational principles of our nation’s founding: that the government should never use the power of taxation to force anyone to fund religion.
Deciding that the government must fund religious education was egregiously wrong, but some people wish the court had gone even further. They are falsely claiming that the court required the government to fund discrimination.
Only a few days after Carson was decided, the Appropriations Committee of the U.S. House of Representatives marked up a funding bill that included funds for the Washington, D.C., voucher plan – the only federally funded private school voucher scheme in the country. Currently, the schools in the D.C. voucher program don’t have to adhere to the same nondiscrimination protections as public schools, but the bill would finally change that.
In response, Rep. Andy Harris (R-Md.) argued that after Carson, those nondiscrimination provisions couldn’t be applied to religious schools. Harris’ falsely asserted that the government is required to fund discrimination at private, religious schools with taxpayer dollars. Rep. Mike Quigley (D-Ill.) quickly refuted that claim, and the nondiscrimination requirement remained in the funding bill.
It is certainly true that the parents in Carson wanted their kids to attend private schools that discriminate. The schools discriminate against non-evangelical Christians and LGBTQ students, parents and teachers in particular. Temple Academy in Waterville requires students to sign a “covenant” promising to glorify Jesus Christ and attend weekly religious services. It also bars admission to LGBTQ students and students with LGBTQ parents. At Bangor Christian School, students are taught to “refute the teachings of the Islamic religion with the truth of God’s Word.” In addition, students who come out as LGBTQ are forced to undergo “counseling” and must renounce their sexual orientation or gender identity or they’ll be expelled.
But the high court ignored the fact that the schools in question discriminate and never said that those schools, in particular, could get funding. It merely held that the state couldn’t bar religious schools from the program because they taught religious education. The high court didn’t reach the question of whether the state could continue to bar private schools that discriminate against students from the voucher program, or whether those specific schools would even qualify for the Maine program. Even the Institute for Justice, which represented the students in this case, argued that the discrimination issue was not before the court.
It should be no surprise that the parents in Carson wanted to use the vouchers at schools that discriminate; vouchers, after all, were created to evade desegregation orders issued after Brown v. Board of Education. Even today, studies show that vouchers tend to increase school segregation. Discrimination remains widespread in private school voucher programs: many voucher programs, like the D.C. voucher scheme described earlier, strip participating students of the constitutional and statutory rights and protections that they have in public schools.
We expect to hear others repeat Harris’ argument that religious schools both have to be given public dollars and must be allowed to discriminate. But it’s just not true.