The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has, rightly, been getting most of the attention recently, but there have been other significant decisions by the Court recently, too. On June 21 the ruling was issued in the case of Carson v. Makin. The case stems from a provision in Maine that allows families who live in school districts that do not have a public secondary school and do not contract with one in another district to choose where their children will attend secondary school and the state will pay some of the tuition for those students. The payments are made by the state directly to those schools. There are some restrictions; namely, the schools must be accredited by the New England Association of Schools and Colleges (NEASC) or be approved by the Maine Department of Education. But since 1981, Maine has limited the use of the funds to attendance at non-sectarian schools.
On June 21, the Supreme Court struck down that restriction. And rightly so. But to see why I say “rightly so” it is important to understand some specific details.
On the day the decision was released, Maine’s Attorney General, Aaron Frey, issued a statement lamenting the ruling. In the process, however, he revealed both why it was the correct decision legally and why public education is increasingly dangerous.
Frey’s statement indicates that about 5,000 students in Maine live in areas without secondary schools, thus making them eligible for the program. “To ensure that these children have access to a free public education, they are permitted to attend at public expense a public or private school of their choice,” Frey said, continuing, “Public funds cannot be used to attend a private school that promotes religion because such schools, by definition, do not provide the equivalent of a public education.”
Notice that Frey said that eligible students could attend the public or private school of their choice—but then attempted to restrict that choice (which Maine has been doing for more than 40 years). In other words, parents could send their children to the school of their choice as long as the state approves of the choice. Is state-sanctioned choice really a choice? It is, but definitely a limited one.
Notice, as well, that Frey said that private schools that promote religion (that is what a sectarian school is) were not eligible for the program because those schools “by definition, do not provide the equivalent of a public education” (emphasis added).
The most easily addressed issue here is the use of state funds for attendance at a sectarian school. Writing in a dissent, Justice Stephen Breyer, citing a 1948 case, said “that a State cannot use ‘its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.’” Well, with all due respect to Justice Breyer, Maine is not using its public school system to aid any religious faith. Precisely because it does not have a public school system adequate to meet the needs of all Maine students, the state is allowing parents to choose where their students will attend school with the state paying part of the cost—since the state is required to provide students with an education.
Breyer further states that the Court has previously held that states may use public funds for the funding of religious schools so long as they choice of school was the “deliberate choice” of the recipient (the parents). He then stated this:
But the key word is “may.” We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.
But Breyer is way off here. If Maine’s provision said that parents could choose any public school then this would not be an issue. Frey stated, “the purpose of the tuition program was to provide a public education for students who would otherwise be without.” But if that was the real purpose of the program, then it was written horribly. By definition, attendance at any private school is not public education. And since the program allows the choice of private schools, it cannot then restrict which private schools can be chosen. That is clearly discriminatory, as Chief Justice Roberts notes in the majority opinion. He wrote,
…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. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.
I could cite more cases and reference more of the majority and dissenting opinions, but this is sufficient to demonstrate why the Court made the correct decision legally. The deeper concern, in my opinion, is the clear demonstration provided in Breyer’s dissent and Frey’s statement about the anything-but-neutral instruction being provided in public schools. Consider Frey’s words:
Public education should expose children to a variety of viewpoints, promote tolerance and understanding, and prepare children for life in a diverse society. The education provided by the schools at issue here is inimical to a public education. They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff. One school teaches children that the husband is to be the leader of the household. While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear. I intend to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.
In case you’re not sure, inimical means to obstruct or harm; unfriendly or hostile. In other words, because sectarian schools teach things that are not neutral, they are not consistent with a public education. To an extent I could agree with that. That is, after all, why sectarian schools exist—so that they can state clearly their positions, their beliefs and their convictions when it comes to issues like religion, marriage, sex, gender identity, family and more. So that they can employ faculty and staff who are likeminded when it comes to those issues. But to a larger extent, Frey reveals in no uncertain terms that public education also has a position and, dare I say it, convictions on these issues—and they happen to be contrary to those of many sectarian schools.
It does not require reading between the lines or inferring anything to grasp what Frey is saying; he comes right out and says it. Teaching that the husband is to be the leader of the household is inimical to a public education. Teaching anything other than acceptance and approval of homosexuality and transgender identities is discriminatory, intolerant and bigoted. Breyer wrote in his dissent, “Maine denies tuition money to schools not because of their religious affiliation, but because they will use state funds to promote religious views.” That’s a pitiful attempt to split a fine hair; what Breyer is really saying is that if there was a religious school that taught exactly what the public schools teach, it wouldn’t be a problem. The problem is what is being taught. The problem, in other words, is that the religious schools actually have a “religion” that means something and has real-life application. “The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion,” Breyer continued. But again, he undercuts his own argument. What he is saying he really wants is not fairness or equality but to favor nonreligion over religion. Prior to this decision, Maine would fund attendance at a sectarian school as long as the school did not promote the faith or belief system with which it is associated or deliver academic instruction through the lens of that faith. So, as long as it wasn’t really a sectarian school.
Breyer specifically included in his dissent that one of the schools in question has as an educational objective “develop[ing] within each student a Christian world view and Christian philosophy of life.” The other school “is based on a thoroughly Christian and Biblical world view.” These things, apparently, cannot be because they are not consistent with a public education. A public education has to be neutral right?
No, Frey said that a public education “should…promote tolerance and understanding” and apparently that means not teaching that parents should be heterosexual and married or that homosexuality is a sin or that God created men and women and that gender is not a multiple choice question. Teaching those things will “promote discrimination, intolerance, and bigotry.” Such belief and teaching “is fundamentally at odds with values we hold dear,” Frey said.
Hmmm… Who is being intolerant now?
In fact, remember that full sentence. Frey said, “it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.”
Funny, it seems to me there have been a lot of parents saying that for a long time—how disturbing it is that public funds are used to pay for so-called education that is fundamentally at odds with the values they hold dear.
The Supreme Court made the right decision; the legal reasoning of the majority is sound. But if other attorneys general and state boards of education feel at all like Aaron Frey, parents who really have values they hold dear will want to strongly consider abandoning public schools.