Any day now, the Supreme Court will issue a crucial decision that defines or redefines the relationship between church and state. The “wall of separation” between church and state has long had many exceptions. Although there are state and regional differences, the state or federal government may pay for mandated services, for school transportation, for textbooks. What the public has never paid for is tuition for religious schools. The forthcoming decision may change that. The facts have not changed, but Trump added three new members who are likely to require the state to pay tuition at religious schools. We will see.

Jan Resseger explores this issue, reviewing an analysis by Kevin Welner, who is both an education policy scholar and a lawyer.

Please open the link to read the complete post:

The Washington Post’s Valerie Strauss recently published a warning about possible unforeseen consequences of the U.S. Supreme Court’s soon-to-be-released decision in a Maine school voucher case, Carson v. Makin. The Court is expected to release its decision by the end of June.

This is a First Amendment case about the entanglement of religion with government and government funding. Strauss warns: “In Carson v. Makin, the conservative majority of the Supreme Court is likely to require Maine officials to use public funding to subsidize religious teaching and proselytizing at schools that legally discriminate against people who don’t support their religious beliefs.”

Strauss refers readers to a May 12 policy brief, The Outsourcing of Discrimination: Another SCOTUS Earthquake?, by Kevin Welner, director of the National Education Policy Center at the University of Colorado. Welner explains why the Carson v. Makin, church-state case seems so complicated and confusing: “The First Amendment prohibits laws ‘respecting an establishment of religion, or prohibiting the free exercise thereof.’ These two religion clauses have long existed in tension and in a balance. The Free Exercise Clause protects individuals’ right to practice their religion as they please, while the Establishment Clause keeps the government from (at least in some circumstances) favoring or disfavoring religion or religious institutions. But that balance has perished. A well-orchestrated push to lift the Amendment’s Free Exercise Clause above its Establishment Clause has seen a level of success enjoyed by few other legal-advocacy efforts.”

The issue in Carson v. Makin differs from a 2020 decision in Espinoza v. Montana, in which the U.S. Supreme Court found that, under the First Amendment’s Free Exercise Clause, the state could not discriminate against a school based on its religious status. Carson v. Makin is about the school’s practice—the explicit teaching of religion, which the state of Maine currently prohibits.

Welner traces the history of church-state school voucher cases: “The legal landscape for vouchers supporting private religious schools has changed 180 degrees, corresponding to the shift in the makeup of justices on the Supreme Court. Vouchers for religious schools have moved from being broadly understood to be constitutionally forbidden in (the) 1970s to constitutionally allowed in 2003, via the Zelman v. Simmons-Harris (2002) decision, to now arguably constitutionally required, at least under the Montana circumstances.” Here Welner is referring to the 2020 U.S. Supreme Court decision, Espinoza v. Montana Department of Revenue.”

Many have believed that the recent “Free Exercise” decisions—the 2020 Espinoza decision and the decision the U.S. Supreme Court will release this month in Carson v. Makin—will have little real impact on state policy. The 2002 decision in Zelman v. Simmons-Harris—based on the old Establishment Clause definition of the separation of church and state—declared that as long as states awarded the voucher to the parents and not directly to the religious school and as long as the parents made the decision to use the voucher at the religious school, vouchers did not violate the separation of church and state. Following Zelman, most states which award vouchers have already been allowing them to flow to religious schools.

In his new brief, however, Kevin Welner worries that Carson v. Makin could potentially have serious implications when religious schools violate students’ rights protected in federal law. Welner also explores, with a focus on charter schools, how the policy implications would be different in politically blue and red states.