Editor’s note: This commentary appeared Monday on nydailynews.com.
Last Tuesday, the U.S. Supreme Court held that Maine’s exclusion of faith-based schools from a tuition-assistance program for students in rural school districts violates the First Amendment’s free exercise clause. The reason why is clear: “The State pays tuition for certain students at private schools — so long as the schools are not religious.”
Critics, including the dissenting justices, erupted in protest. Justice Sonia Sotomayor complained that the “Court continues to dismantle the wall of separation between church and state.” Justice Stephen Breyer predicted an increased “potential for religious strife.” Left-leaning commentators warned that the ruling might require states to operate religious schools.
Not true. This decision, in Carson vs. Makin, is the third decision in five years to invalidate the exclusion of religious schools from public-benefit programs. The opinion breaks no new doctrinal ground, but instead represents a straightforward application of what the majority calls the “unremarkable principle” that a “State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
Nor does the ruling require states to subsidize students attending private religious schools — except when it specifically chooses to subsidize students attending private secular schools. The majority makes clear that “a state need not subsidize private education…[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
For the private-school choice program, Carson will have little immediate impact. Over half of states now have programs enabling children to attend a private school, and all but two of them — Maine and Vermont — sensibly and voluntarily include religious schools. The decision does, importantly, clear a path for the further expansion of private-school choice by defanging state establishment clauses that purport to prohibit support of religious schools.
But private-school-choice programs, which enroll fewer than 1% of U.S. schoolchildren, are only the tip of the school-choice iceberg. The elephant in the room is how this reaffirmed non-discrimination principle will now be applied to charter schools.
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