Archives for the month of: June, 2022

In a new ruling, the Supreme Court struck down a New York State law that limited access to guns. The New York law requires that people seeking to carry a handgun outside their homes must obtain a permit and show “proper cause.” There are similar laws in California, Hawaii, Maryland, Massachusetts, New Jersey and Rhode Island.

To those who claimed in 2016 that it didn’t matter if Trump was elected, this is what Trump’s three appointees to the Supreme Court have done: required Maine to pay for discriminatory born-again religious schools; overturned gun controls in New York; and will probably overturn Roe v Wade in the next few days. Elections have consequences. The lesser of two evils is always preferable to Pure Evil. A candidate who is good but not perfect is preferable to one who is ignorant and bigoted.

The Supreme Court said Thursday that Americans generally have a right to carry a handgun outside the home for self-defense and that a New York law requiring special need for such a permit is too restrictive.

The vote was 6 to 3, with Justice Clarence Thomas writing for the majority and the court’s three liberals in dissent.

“The Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” Thomas wrote, saying New York’s requirement of a specific need to carry a weapon violates that right.

“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ ” Thomas wrote, referring to a previous Supreme Court ruling. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.”

He was joined by the court’s conservatives: Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

In dissent, Justice Stephen G. Breyer pointed to the nearly 300 mass shootings since January and to data showing that gun violence has surpassed car crashes as the leading cause of death among children and teens. The majority’s decision, he said, will make it more difficult for state lawmakers to take steps to limit the dangers of gun violence.
The Second Amendment allows states to “take account of the serious problems posed by gun violence,” wrote Breyer, who was joined by Justices Sonia Sotomayor and Elena Kagan. He added: “Many States have tried to address some of the dangers of gun violence … by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so.”

The party that claims to be “right to life” authorizes easier access to weapons of death. More people will die because this ruling. Under this court, the only protected class is the pre-born or the unborn. The born are in big trouble.

Categories Accountability, Guns, Safety, Trump

Charles P. Pierce: Supreme Court Declares Establishment Clause Unconstitutional

By dianeravitch

June 23, 2022 //

Charles P. Pierce is a super writer who is smart and insightful, especially when he writes about education. He writes regularly for Esquire. In this post, he slices and dices the absurdity of the Carson vs. Makin ruling that compels Maine to pay tuition for students at evangelical Christian schools that openly discriminate against students, families, and teachers who do not share their religious views. The six justices in the majority are certainly not Originalists. Their decision overturns a key principle embedded in the Constitution, which prohibits the state from sponsoring or “establishing” religion.

He writes:

It’s been a big week for Christian nationalism in our politics. In the case of Carson v. Makin, which involved a Maine law that forbade public money to go to religious schools, the Supreme Court ruled that the Establishment Clause of the United States Constitution is…unconstitutional. The Court’s carefully engineered conservative majority has been heading in this direction, finding anti-religious—primarily anti-Christian—discrimination in laws deliberately written to be religiously neutral. This was a pole-vault over that line, and one that conceivably could threaten public education as a whole. Writing for the majority, Chief Justice John Roberts said:

This case concerns two families that live in SAUs that neither maintain their own secondary schools nor contract with any nearby secondary school. Petitioners David and Amy Carson reside in Glenburn, Maine. When this litigation commenced, the Carsons’ daughter attended high school at Bangor Christian Schools (BCS), which was founded in 1970 as a ministry of Bangor Baptist Church. The Carsons sent their daughter to BCS because of the school’s high academic standards and because the school’s Christian worldview aligns with their sincerely held religious beliefs.

Translation: the school discriminates against LGBTQ citizens. Here, from a brief filed in this case, is what Bangor Christian Schools are up to.

BCS believes that a student who is homosexual or identifies as a gender other than on his or her original birth certificate would not be able to sign the agreement governing codes of conduct that BCS requires as a condition of admission.

If a student was openly gay and regularly communicated that fact to his or her classmates, “that would fall under an immoral activity” under BCS’ Statement of Faith and if “there was no change in the student’s position” after counseling, the student would not be allowed to continue attending BCS.

BCS does not believe there is any way to separate the religious instruction from the academic instruction – religious instruction is “completely intertwined and there is no way for a student to succeed if he or she is resistant to the sectarian instruction.”

One of the objectives in the ninth-grade social studies class is to “[r]efute the teachings of the Islamic religion with the truth of God’s Word.”

Shrug, says John Roberts. Pay up, suckers.Me? I am planning to open a taxpayer-funded madrassa out in the woods somewhere. I’ll keep you advised.

Open the link. The post has an interesting take on Herschel Walker and on Arizona official Rusty Bower’s view that the Constitution was divinely inspired.

Categories Accountability, Bigotry, Civil Rights, Democracy, Elections, Extremism, Funding, Maine, Religion, Separation of church and state

The Dissenting Opinions to Carson v. Makin

By dianeravitch

June 23, 2022 //

The three liberal justices–Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan dissented from the decision that Maine was required to fund religious schools because the state subsidizes private schools where no public schools are available. The three of them concurred in a joint opinion and Justice Sotomayor wrote a separate dissent as well. Justice Breyer reviews the long history of separation of church and state and shows how deeply this principle is embedded is in our nation’s history, especially as it pertains to schools.

Justice Breyer shows that the many decisions of the Court about religious schools aimed to create a “course of constitutional neutrality” towards religion, neither supporting it nor hindering it. The founders were well aware of the long history of conflict and war in Europe, spurred by religious antagonisms. That is why they believed in separation of church and state and forbade any establishment of religion. While there has always been tension between the principle of freedom of religion and the prohibition of establishment of religion, he writes, neither principle is absolute; there has always been a “play in the joints” that enables both to survive intact.

Breyer writes:

This potential for religious strife is still with us. We are today a Nation with well over 100 different religious groups, from Free Will Baptist to African Methodist, Buddhist to Humanist. See Pew Research Center, America’s Changing Religious Landscape 21 (May 12, 2015). People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion. As Thomas Jefferson, one of the leading drafters and proponents of those Clauses, wrote, “‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’ ” Everson, 330 U. S., at 13. And as James Madison, another drafter and proponent, said, compelled tax- payer sponsorship of religion “is itself a signal of persecution,” which “will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects.” Id., at 68– 69 (appendix to dissenting opinion of Rutledge, J.). To in- terpret the Clauses with these concerns in mind may help to further their original purpose of avoiding religious-based division.

He summarizes: In a word, to interpret the two Clauses as if they were joined at the hip will work against their basic purpose: to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions.

Reviewing past decisions, he notes a problematic new note in this decision. Whereas the Court had ruled in the past that states “may” fund of specific functions of religious schools, in this decision, the majority ruled that they “must” provide funding for religious schools.

Justice Sotomayor added her own dissent, warning that this decision is a dangerous course for the Court, a course that began five years earlier. In the past, she wrote, religious excercise existed without sponsorship or interference by the state. But now the Court was requiring the state of Maine to engage in practices that many of its citizens might consider discrimination.

She writes: While purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds. See ante, at 16 (BREYER, J., dissenting) (summarizing Bangor Christian Schools’ and Temple Academy’s policies denying enrollment to students based on gender identity, sexual orientation, and religion).

What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a consti- tutional commitment.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exer- cise, any State that values its historic antiestablishment in- terests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.

Cite as: 596 U. S. ____ (2022) 1 BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 20–1088 _________________

DAVID CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL., PETITIONERS v. A. PENDER MAKIN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

[June 21, 2022]

JUSTICE BREYER, with whom JUSTICE KAGAN joins, and with whom JUSTICE SOTOMAYOR joins except as to Part I– B, dissenting.

The First Amendment begins by forbidding the govern- ment from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohib- iting the free exercise thereof.” The Court today pays al- most no attention to the words in the first Clause while giv- ing almost exclusive attention to the words in the second. The majority also fails to recognize the “ ‘play in the joints’ ” between the two Clauses. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, ___ (2017) (slip op., at 6). That “play” gives States some degree of legislative leeway. It sometimes allows a State to further antiestab- lishment interests by withholding aid from religious insti- tutions without violating the Constitution’s protections for the free exercise of religion. In my view, Maine’s nonsec- tarian requirement falls squarely within the scope of that constitutional leeway. I respectfully dissent.

I A

The First Amendment’s two Religion Clauses together provide that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise

2 CARSON v. MAKIN BREYER, J., dissenting

thereof.” Each Clause, linguistically speaking, is “cast in absolute terms.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 668 (1970). The first Clause, the Establish- ment Clause, seems to bar all government “sponsorship, fi- nancial support, [or] active involvement . . . in religious ac- tivity,” while the second Clause, the Free Exercise Clause, seems to bar all “governmental restraint on religious prac- tice.” Id., at 668, 670. The apparently absolutist nature of these two prohibitions means that either Clause, “if ex- panded to a logical extreme, would tend to clash with the other.” Id., at 668–669. Because of this, we have said, the two Clauses “are frequently in tension,” Locke v. Davey, 540 U. S. 712, 718 (2004), and “often exert conflicting pres- sures” on government action, Cutter v. Wilkinson, 544 U. S. 709, 719 (2005).

On the one hand, the Free Exercise Clause “‘protect[s] religious observers against unequal treatment.’” Trinity Lutheran, 582 U. S., at ___ (slip op., at 6) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 542 (1993); alteration in original). We have said that, in the education context, this means that States generally cannot “ba[r] religious schools from public benefits solely because of the religious character of the schools.” Espinoza v. Mon- tana Dept. of Revenue, 591 U. S. ___, ___ (2020) (slip op., at 9); see Trinity Lutheran, 582 U. S., at ___–___ (slip op., at 9–10).

On the other hand, the Establishment Clause “commands a separation of church and state.” Cutter, 544 U. S., at 719. A State cannot act to “aid one religion, aid all religions, or prefer one religion over another.” Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15 (1947). This means that a State cannot use “its public school system to aid any or all reli- gious faiths or sects in the dissemination of their doctrines and ideals.” Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203, 211 (1948). Nor may a State “adopt programs or practices in its

Cite as: 596 U. S. ____ (2022) 3 BREYER, J., dissenting

public schools . . . which ‘aid or oppose’ any religion.” Ep- person v. Arkansas, 393 U. S. 97, 106 (1968). “This prohibi- tion,” we have cautioned, “is absolute.” Ibid. See, e.g., McCollum, 333 U. S. 203 (no weekly religious teachings in public schools); Engel v. Vitale, 370 U. S. 421 (1962) (no prayers in public schools); School Dist. of Abington Town- ship v. Schempp, 374 U. S. 203 (1963) (no Bible readings in public schools); Epperson, 393 U. S. 97 (no religiously tai- lored curriculum in public schools); Wallace v. Jaffree, 472 U. S. 38 (1985) (no period of silence for meditation or prayer in public schools); Lee v. Weisman, 505 U. S. 577 (1992) (no prayers during public school graduations); Santa Fe Inde- pendent School Dist. v. Doe, 530 U. S. 290 (2000) (no pray- ers during public school football games).

Although the Religion Clauses are, in practice, often in tension, they nonetheless “express complementary values.” Cutter, 544 U. S., at 719. Together they attempt to chart a “course of constitutional neutrality” with respect to govern- ment and religion. Walz, 397 U. S., at 669. They were writ- ten to help create an American Nation free of the religious conflict that had long plagued European nations with “gov- ernmentally established religion[s].” Engel, 370 U. S., at 431. Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries. Id., at 429; see also Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 795–796 (1973).

The Religion Clauses thus created a compromise in the form of religious freedom. They aspired to create a “benev- olent neutrality”—one which would “permit religious exer- cise to exist without sponsorship and without interference.” Walz, 397 U. S., at 669. “[T]he basic purpose of these pro- visions” was “to insure that no religion be sponsored or fa- vored, none commanded, and none inhibited.” Ibid. This religious freedom in effect meant that people “were entitled

4 CARSON v. MAKIN BREYER, J., dissenting

to worship God in their own way and to teach their chil- dren” in that way. C. Radcliffe, The Law & Its Compass 71 (1960). We have historically interpreted the Religion Clauses with these basic principles in mind. See, e.g., Nyquist, 413 U. S., at 771–772, 794–796; Walz, 397 U. S., at 668–670; Engel, 370 U. S., at 429–432.

And in applying these Clauses, we have often said that “there is room for play in the joints” between them. Walz, 397 U. S., at 669; see, e.g., Norwood v. Harrison, 413 U. S. 455, 469 (1973); Cutter, 544 U. S., at 719; Locke, 540 U. S., at 718–719; Trinity Lutheran, 582 U. S., at ___ (slip op., at 6); Espinoza, 591 U. S., at ___ (slip op., at 6). This doctrine reflects the fact that it may be difficult to determine in any particular case whether the Free Exercise Clause requires a State to fund the activities of a religious institution, or whether the Establishment Clause prohibits the State from doing so. Rather than attempting to draw a highly reticu- lated and complex free-exercise/establishment line that varies based on the specific circumstances of each state- funded program, we have provided general interpretive principles that apply uniformly in all Religion Clause cases. At the same time, we have made clear that States enjoy a degree of freedom to navigate the Clauses’ competing pro- hibitions. See, e.g., Cutter, 544 U. S., at 713, 719–720. This includes choosing not to fund certain religious activity where States have strong, establishment-related reasons for not doing so. See, e.g., Locke, 540 U. S., at 719–722. And, States have freedom to make this choice even when the Establishment Clause does not itself prohibit the State from funding that activity. Id., at 719 (“[T]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause”). The Court to- day nowhere mentions, and I fear effectively abandons, this longstanding doctrine.

Cite as: 596 U. S. ____ (2022) 5

BREYER, J., dissenting

I have previously discussed my views of the relationship between the Religion Clauses and how I believe these Clauses should be interpreted to advance their goal of avoiding religious strife. See, e.g., Espinoza, 591 U. S., at ___–___ (dissenting opinion) (slip op., at 13–20); Van Orden v. Perry, 545 U. S. 677, 698–705 (2005) (opinion concurring in judgment); Zelman v. Simmons-Harris, 536 U. S. 639, 717–729 (2002) (dissenting opinion). Here I simply note the increased risk of religiously based social conflict when gov- ernment promotes religion in its public school system. “[T]he prescription of prayer and Bible reading in the public schools, during and as part of the curricular day, involving young impressionable children whose school attendance is statutorily compelled,” can “give rise to those very divisive influences and inhibitions of freedom which both religion clauses of the First Amendment” sought to prevent. Schempp, 374 U. S., at 307 (Goldberg, J., concurring).

This potential for religious strife is still with us. We are today a Nation with well over 100 different religious groups, from Free Will Baptist to African Methodist, Bud- dhist to Humanist. See Pew Research Center, America’s Changing Religious Landscape 21 (May 12, 2015). People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion. As Thomas Jefferson, one of the lead- ing drafters and proponents of those Clauses, wrote, “‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.’ ” Everson, 330 U. S., at 13. And as James Mad- ison, another drafter and proponent, said, compelled tax- payer sponsorship of religion “is itself a signal of persecu- tion,” which “will destroy that moderation and harmony

6 CARSON v. MAKIN BREYER, J., dissenting

which the forbearance of our laws to intermeddle with Re- ligion, has produced amongst its several sects.” Id., at 68– 69 (appendix to dissenting opinion of Rutledge, J.). To in- terpret the Clauses with these concerns in mind may help to further their original purpose of avoiding religious-based division.

I have also previously explained why I believe that a “rigid, bright-line” approach to the Religion Clauses—an approach without any leeway or “play in the joints”—will too often work against the Clauses’ underlying purposes. Espinoza, 591 U. S., at ___ (dissenting opinion) (slip op., at 18); see also Van Orden, 545 U. S., at 669–700 (opinion con- curring in judgment). “[G]overnment benefits come in many shapes and sizes.” Espinoza, 591 U. S., at ___ (slip op., at 16) (dissenting opinion). Not all state-funded pro- grams that have religious restrictions carry the same risk of creating social division and conflict. In my view, that risk can best be understood by considering the particular benefit at issue, along with the reasons for the particular religious restriction at issue. See ibid.; Trinity Lutheran, 582 U. S., at ___ (slip op., at 1) (BREYER, J., concurring in judgment). Recognition that States enjoy a degree of constitutional lee- way allows States to enact laws sensitive to local circum- stances while also allowing this Court to consider those cir- cumstances in light of the basic values underlying the Religion Clauses.

In a word, to interpret the two Clauses as if they were joined at the hip will work against their basic purpose: to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions.

The majority believes that the principles set forth in this Court’s earlier cases easily resolve this case. But they do

Cite as: 596 U. S. ____ (2022) 7 BREYER, J., dissenting

not.
We have previously found, as the majority points out,

that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establish- ment Clause.” Ante, at 10 (citing Zelman, 536 U. S., at 652– 653). We have thus concluded that a State may, consistent with the Establishment Clause, provide funding to religious schools through a general public funding program if the “government aid . . . reach[es] religious institutions only by way of the deliberate choices of . . . individual [aid] recipi- ents.” Id., at 652.

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.

What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Ex- ercise Clause—that the State must pay parents for the re- ligious equivalent of the secular benefit provided? The con- cept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”

The majority also asserts that “[t]he ‘unremarkable’ prin- ciples applied in Trinity Lutheran and Espinoza suffice to resolve this case.” Ante, at 9. Not so. The state-funded program at issue in Trinity Lutheran provided payment for

8 CARSON v. MAKIN BREYER, J., dissenting

resurfacing school playgrounds to make them safer for chil- dren. Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, munici- pal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter.

In addition, schools were excluded from the playground resurfacing program at issue in Trinity Lutheran because of the mere fact that they were “owned or controlled by a church, sect, or other religious entity.” 582 U. S., at ___ (slip op., at 2). Schools were thus disqualified from receiv- ing playground funds “solely because of their religious char- acter,” not because of the “religious uses of [the] funding” they would receive. Id., at ___, ___, n. 3 (slip op., at 10, 14, n. 3). Here, by contrast, a school’s “ ‘affiliation or associa- tion with a church or religious institution . . . is not dispos- itive’ ” of its ability to receive tuition funds. 979 F. 3d 21, 38 (CA1 2020) (quoting then-commissioner of Maine’s De- partment of Education). Instead, Maine chooses not to fund only those schools that “ ‘promot[e] the faith or belief system with which [the schools are] associated and/or presen[t] the [academic] material taught through the lens of this faith’ ”—i.e., schools that will use public money for religious purposes. Ibid. Maine thus excludes schools from its tui- tion program not because of the schools’ religious character but because the schools will use the funds to teach and pro- mote religious ideals.

For similar reasons, Espinoza does not resolve the pre- sent case. In Espinoza, Montana created “a scholarship

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BREYER, J., dissenting

program for students attending private schools.” 591 U. S., at ___ (slip op., at 1). But the State prohibited families from using the scholarship at any private school “ ‘owned or con- trolled in whole or in part by any church, religious sect, or denomination.’” Id., at ___ (slip op., at 3) (quoting Mont. Admin. Rule §42.4.802(1)(a) (2015)). As in Trinity Lu- theran, Montana denied funds to schools based “expressly on religious status and not religious use”; “[t]o be eligible” for scholarship funds, a school had to “divorce itself from any religious control or affiliation.” 591 U. S. at ___–___ (slip op., at 10–11). Here, again, Maine denies tuition money to schools not because of their religious affiliation, but because they will use state funds to promote religious views.

These distinctions are important. The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one re- ligion over another or favoring religion over nonreligion. See Engel, 370 U. S., at 430 (“Under [the Establishment Clause] . . . government in this country, be it state or fed- eral, is without power to prescribe by law . . . any program of governmentally sponsored religious activity”); Walz, 397 U. S., at 668 (“[F]or the men who wrote the Religion Clauses . . . the ‘establishment’ of a religion connoted . . . [any] ac- tive involvement of the sovereign in religious activity”);Everson, 330 U. S., at 15 (States may not “pass laws which aid one religion, aid all religions, or prefer one religion over another”). State funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent. And, unlike the circumstances present in Trinity Lutheran and Espinoza, it is religious ac- tivity, not religious labels, that lies at the heart of this case.

III A

I turn now to consider the Maine program at issue here.

10 CARSON v. MAKIN BREYER, J., dissenting

Maine’s Constitution guarantees Maine’s children a free public education by requiring that all towns provide “for the support and maintenance of public schools.” Art. VIII, pt. 1, §1; see also Me. Rev. Stat. Ann., Tit. 20–A, §2(1) (2008). Because of the State’s rural geography and dispersed popu- lation, however, over half of Maine’s school districts do not operate public secondary schools. App. 70. To fulfill its con- stitutional promise, Maine created a program that provides some parents in these districts with a monetary grant to help them educate their children “at the public school or the approved private school of the parent’s choice.” Me. Rev. Stat. Ann., Tit. 20–A, §5204(4) (Cum. Supp. 2021). The pro- gram’s “function is limited to authorizing the provision of tuition subsidies to the parents of children who live within school [districts] that simply do not have the resources to operate a public school system, and whose children would otherwise not be given an opportunity to receive a free pub- lic education.” Hallissey v. School Administrative Dist. No. 77, 2000 ME 143, ¶16, 755 A. 2d 1068, 1073.

Under Maine law, an “approved” private school must be “nonsectarian.” §2951(2). A school fails to meet that re- quirement (and is deemed “sectarian”) only if it is both (1) “‘associated with a particular faith or belief system’” and also (2) “‘promotes the faith or belief system with which it is associated and/or presents the [academic] material taught through the lens of this faith.’ ” 979 F. 3d, at 38 (quoting Maine’s then-education commissioner). To deter- mine whether a school is sectarian, the “‘focus is on what the school teaches through its curriculum and related activ- ities, and how the material is presented.’ ” Ibid. (emphasis deleted). “ ‘[A]ffiliation or association with a church or reli- gious institution . . . is not dispositive’” of sectarian status.Ibid.

The two private religious schools at issue here satisfy both of these criteria. They are affiliated with a church or religious organization. See App. 80, 91. And they also teach

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BREYER, J., dissenting

students to accept particular religious beliefs and to engage in particular religious practices.

The first school, Bangor Christian, has “educational ob- jectives” that include “‘lead[ing] each unsaved student to trust Christ as his/her personal savior and then to follow Christ as Lord of his/her life,’” and “‘develop[ing] within each student a Christian world view and Christian philoso- phy of life.’ ” Id., at 84. Bangor Christian “does not believe there is any way to separate the religious instruction from the academic instruction.” Id., at 85. Academic instruction and religious instruction are thus “completely intertwined.” Ibid. Bangor Christian teaches in its social studies class, for example, “‘that God has ordained evangelism.’” Id., at 87. And in science class, students learn that atmospheric layers “‘are evidence of God’s good design.’” Id., at 89.

The second school, Temple Academy, similarly promotes religion through academics. Its “educational philosophy ‘is based on a thoroughly Christian and Biblical world view.’ ” Id., at 92. The school’s “objectives” include “‘foster[ing] within each student an attitude of love and reverence of the Bible as the infallible, inerrant, and authoritative Word of God.’” Ibid. Andtheschool’s“‘academicgrowth’objectives” include “‘provid[ing] a sound academic education in which the subjec[t] areas are taught from a Christian point of view,’” and “‘help[ing] every student develop a truly Chris- tian world view by integrating studies with the truths of Scripture.’ ” Id., at 93. Like Bangor Christian, Temple “pro- vides a ‘biblically-integrated education,’ which means that the Bible is used in every subject that is taught.” Id., at 96. In mathematics classes, for example, students learn that “a creator designed the universe such that ‘one plus one is al- ways going to be two.’” Ibid.

The differences between this kind of education and a purely civic, public education are important. “The religious education and formation of students is the very reason for the existence of most private religious schools.” Our Lady

12 CARSON v. MAKIN BREYER, J., dissenting

of Guadalupe School v. Morrissey-Berru, 591 U. S. ___, ___ (2020) (slip op., at 2). “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith,” we have said, “are responsibilities that lie at the very core of the mission of a private religious school.” Id., at ___ (slip op., at 18). Indeed, we have recognized that the “connection that religious institutions draw between their central purpose and educating the young in the faith” is so “close” that teachers employed at such schools act as “ministers” for purposes of the First Amendment. Id., at ___, ___ (slip op., at 2, 21); see also Hosanna-Tabor Evan- gelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012).

By contrast, public schools, including those in Maine, seek first and foremost to provide a primarily civic educa- tion. We have said that, in doing so, they comprise “a most vital civic institution for the preservation of a democratic system of government, and . . . the primary vehicle for transmitting the values on which our society rests.” Plyler v. Doe, 457 U. S. 202, 221 (1982) (citation and internal quo- tation marks omitted). To play that role effectively, public schools are religiously neutral, neither disparaging nor pro- moting any one particular system of religious beliefs. We accordingly have, as explained above, consistently required public school education to be free from religious affiliation or indoctrination. Cf. Edwards v. Aguillard, 482 U. S. 578, 583–584 (1987) (“The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary [public] schools”).

Maine legislators who endorsed the State’s nonsectarian requirement recognized these differences between public and religious education. They did not want Maine taxpay- ers to finance, through a tuition program designed to en- sure the provision of free public education, schools that would use state money for teaching religious practices. See, e.g., App. 104 (Maine representative stating that “[f]rom a

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public policy position, we must believe that a religiously neutral classroom is the best if funded by public dollars”); id., at 106 (Maine senator asserting that the State’s “lim- ited [tax] dollars for schools” should be spent on those “that are non-religious and that are neutral on religion”). Under- lying these views is the belief that the Establishment Clause seeks government neutrality. And the legislators thought that government payment for this kind of religious education would be antithetical to the religiously neutral education that the Establishment Clause requires in public schools. Cf. Epperson, 393 U. S., at 106; McCollum, 333 U. S., at 211. Maine’s nonsectarian requirement, they be- lieved, furthered the State’s antiestablishment interests in not promoting religion in its public school system; the re- quirement prevented public funds—funds allocated to en- sure that all children receive their constitutional right to a free public education—from being given to schools that would use the funds to promote religion.

In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on reli- gious education saves Maine’s program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. See, e.g., Zelman, 536 U. S., at 652. It does not require Maine to spend its money in that way. That is because, as explained above, this Court has long followed a legal doctrine that gives States flexibility to navigate the tension between the two Religion Clauses. Supra, at 4. This doctrine “recog- nize[s] that there is ‘play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.” Trinity Lutheran, 582 U. S., at ___ (slip op., at 6) (quoting Locke, 540 U. S., at 718). This wiggle- room means that “[t]he course of constitutional neutrality in this area cannot be an absolutely straight line.” Walz, 397 U. S., at 669. And in walking this line of government

14 CARSON v. MAKIN BREYER, J., dissenting

neutrality, States must have “some space for legislative ac- tion neither compelled by the Free Exercise Clause nor pro- hibited by the Establishment Clause,” Cutter, 544 U. S., at 719, in which they can navigate the tension created by the Clauses and consider their own interests in light of the Clauses’ competing prohibitions. See, e.g., Walz, 397 U. S., at 669.

Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education. As explained above, this Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization. Supra, at 7–9. But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put. Cf. Trinity Lutheran, 582 U. S., at ___ (slip op., at 12). To the contrary, we upheld in Locke a State’s decision to deny public funding to a recipient “because of what he proposed to do” with the money, when what he proposed to do was to “use the funds to prepare for the ministry.” Trinity Lutheran, 582 U. S., at ___ (slip op., at 12); see also Espinoza, 591 U. S., at ___ (slip op., at 13) (characterizing Locke similarly). Maine does not refuse to pay tuition at private schools because of religious status or affiliation. The State only denies funding to schools that will use the money to promote religious beliefs through a religiously integrated education—an education that, in Maine’s view, is not a replacement for a civic-focused public education. See 979 F. 3d, at 38. This makes Maine’s deci- sion to withhold public funds more akin to the state decision that we upheld in Locke, and unlike the withholdings that we invalidated in Trinity Lutheran and Espinoza.

The Free Exercise Clause thus does not require Maine to fund, through its tuition program, schools that will use pub-

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BREYER, J., dissenting

lic money to promote religion. And considering the Estab- lishment Clause concerns underlying the program, Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine en- deavors to provide children the religiously neutral educa- tion required in public school systems. And that, in signif- icant part, reflects the State’s antiestablishment interests in avoiding spending public money to support what is es- sentially religious activity. The Religion Clauses give Maine the ability, and flexibility, to make this choice.

In my view, Maine’s nonsectarian requirement is also constitutional because it supports, rather than undermines, the Religion Clauses’ goal of avoiding religious strife. Forc- ing Maine to fund schools that provide the sort of religiously integrated education offered by Bangor Christian and Tem- ple Academy creates a similar potential for religious strife as that raised by promoting religion in public schools. It may appear to some that the State favors a particular reli- gion over others, or favors religion over nonreligion. Mem- bers of minority religions, with too few adherents to estab- lish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education. Taxpayers may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree. And parents in school districts that have a public secondary school may feel indig- nant that only some families in the State—those families in the more rural districts without public schools—have the opportunity to give their children a Maine-funded religious education.

Maine legislators who endorsed the State’s nonsectarian requirement understood this potential for social conflict.

16 CARSON v. MAKIN BREYER, J., dissenting

They recognized the important rights that religious schools have to create the sort of religiously inspired curriculum that Bangor Christian and Temple Academy teach. Legis- lators also recognized that these private schools make reli- giously based enrollment and hiring decisions. Bangor Christian and Temple Academy, for example, have admis- sions policies that allow them to deny enrollment to stu- dents based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians. App. 82–83, 89, 93, 98. Legislators did not want Maine taxpayers to pay for these religiously based practices—practices not universally endorsed by all citizens of the State—for fear that doing so would cause a significant number of Maine citizens discomfort or displeas- ure. See, e.g., id., at 101 (Maine representative noting that “private religious schools discriminate against citizens of the State of Maine,” such as by “not hir[ing] individuals whose beliefs are not consistent with the school’s religious teachings,” and asserting that “it is fundamentally wrong for us to fund” such discrimination); id., at 104 (Maine rep- resentative stating that “the people of Maine” should not use “public money” to advance “their religious pursuits,” and that “discrimination in religious institutions” should not be funded “with my dollar”); id., at 107 (Maine senator expressing concern that “public funds could be used to teach intolerant religious views”). The nonsectarian requirement helped avoid this conflict—the precise kind of social conflict that the Religion Clauses themselves sought to avoid.

Maine’s nonsectarian requirement also serves to avoid re- ligious strife between the State and the religious schools. Given that Maine is funding the schools as part of its effort to ensure that all children receive the basic public education to which they are entitled, Maine has an interest in ensur- ing that the education provided at these schools meets cer- tain curriculum standards. Religious schools, on the other

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hand, have an interest in teaching a curriculum that ad- vances the tenets of their religion. And the schools are of course entitled to teach subjects in the way that best re- flects their religious beliefs. But the State may disagree with the particular manner in which the schools have de- cided that these subjects should be taught.

This is a situation ripe for conflict, as it forces Maine into the position of evaluating the adequacy or appropriateness of the schools’ religiously inspired curriculum. Maine does not want this role. As one legislator explained, one of the reasons for the nonsectarian requirement was that “[g]overnment officials cannot, and should not, review the religious teachings of religious schools.” Ibid. Another leg- islator cautioned that the State would be unable to “recon- cile” the curriculum of “private religious schools who teach religion in the classroom” with Maine “standards . . . that do not include any sort of religion in them.” Id., at 102.

Nor do the schools want Maine in this role. Bangor Chris- tian asserted that it would only consider accepting public funds if it “did not have to make any changes in how it op- erates.” Id., at 90. Temple Academy similarly stated that it would only accept state money if it had “in writing that the school would not have to alter its admissions standards, hiring standards, or curriculum.” Id., at 99. The nonsec- tarian requirement ensures that Maine is not pitted against private religious schools in these battles over curriculum or operations, thereby avoiding the social strife resulting from this state-versus-religion confrontation. By invalidating the nonsectarian requirement, the majority today subjects the State, the schools, and the people of Maine to social con- flict of a kind that they, and the Religion Clauses, sought to prevent.

I emphasize the problems that may arise out of today’s decision because they reinforce my belief that the Religion Clauses do not require Maine to pay for a religious educa- tion simply because, in some rural areas, the State will help

18 CARSON v. MAKIN BREYER, J., dissenting

parents pay for a secular education. After all, the Estab- lishment Clause forbids a State from paying for the practice of religion itself. And state neutrality in respect to the teaching of the practice of religion lies at the heart of this Clause. See, e.g., Locke, 540 U. S., at 721–722 (noting that there are “few areas in which a State’s antiestablishment interests come more into play” than state funding of minis- ters who will “lead [their] congregation[s]” in “religious en- deavor[s]”). There is no meaningful difference between a State’s payment of the salary of a religious minister and the salary of someone who will teach the practice of religion to a person’s children. At bottom, there is almost no area “as central to religious belief as the shaping, through primary education, of the next generation’s minds and spirits.” Zel- man, 536 U. S., at 725 (BREYER, J., dissenting). The Estab- lishment Clause was intended to keep the State out of this area.

***

Maine wishes to provide children within the State with a secular, public education. This wish embodies, in signifi- cant part, the constitutional need to avoid spending public money to support what is essentially the teaching and prac- tice of religion. That need is reinforced by the fact that we are today a Nation of more than 330 million people who as- cribe to over 100 different religions. In that context, state neutrality with respect to religion is particularly important. The Religion Clauses give Maine the right to honor that neutrality by choosing not to fund religious schools as part of its public school tuition program. I believe the majority is wrong to hold the contrary. And with respect, I dissent.

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SUPREME COURT OF THE UNITED STATES

_________________

No. 20–1088 _________________

DAVID CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL., PETITIONERS v. A. PENDER MAKIN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

[June 21, 2022]

JUSTICE SOTOMAYOR, dissenting.

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. JUSTICE BREYER explains why the Court’s analysis falters on its own terms, and I join all but Part I–B of his dissent. I write separately to add three points.

First, this Court should not have started down this path five years ago. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017). Before Trinity Lu- theran, it was well established that “both the United States and state constitutions embody distinct views” on “the sub- ject of religion”—“in favor of free exercise, but opposed to establishment”—“that find no counterpart” with respect to other constitutional rights. Locke v. Davey, 540 U. S. 712, 721 (2004). Because of this tension, the Court recognized “ ‘room for play in the joints’ between” the Religion Clauses, with “some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Id., at 718–719 (quoting Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 669 (1970)); see ante, at 4 (BREYER, J., dissenting). Using this flexibility, and consistent with a rich historical tradition, see Trinity Lutheran, 582 U. S., at ___–___ (SOTOMAYOR, J., dissenting) (slip op., at 11–16), States and the Federal Government could decline to fund

2 CARSON v. MAKIN SOTOMAYOR, J., dissenting

religious institutions. Moreover, the Court for many dec- ades understood the Establishment Clause to prohibit gov- ernment from funding religious exercise.*

Over time, the Court eroded these principles in certain respects. See, e.g., Zelman v. Simmons-Harris, 536 U. S. 639, 662 (2002) (allowing government funds to flow to reli- gious schools if private individuals selected the benefiting schools; the government program was “entirely neutral with respect to religion”; and families enjoyed a “genuine choice among options public and private, secular and reli- gious”). Nevertheless, the space between the Clauses con- tinued to afford governments “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable laws.” Trinity Lutheran, 582 U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 9).

Trinity Lutheran veered sharply away from that under- standing. After assuming away an Establishment Clause violation, the Court revolutionized Free Exercise doctrine by equating a State’s decision not to fund a religious organ- ization with presumptively unconstitutional discrimination on the basis of religious status. See id., at ___–___ (slip op., at 10–11). A plurality, however, limited the Court’s deci- sion to “express discrimination based on religious identity” (i.e., status), not “religious uses of funding.” Id., at ___, n. 3 (slip op., at 14, n. 3). In other words, a State was barred

——————
* See, e.g., Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947) (“No

tax in any amount, large or small, can be levied to support any religious activities or institutions . . . ”); Agostini v. Felton, 521 U. S. 203, 222–223 (1997) (observing that government aid that impermissibly “advanc[ed] . . . religion” was constitutionally barred); Mitchell v. Helms, 530 U. S. 793, 840 (2000) (O’Connor, J., concurring in judgment) (“[O]ur decisions provide no precedent for the use of public funds to finance religious ac- tivities” (internal quotation marks omitted)); see also Rosenberger v. Rec- tor and Visitors of Univ. of Va., 515 U. S. 819, 875–876 (1995) (Souter, J., dissenting) (chronicling cases).

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from withholding funding from a religious entity “solely be- cause of its religious character,” id., at ___ (opinion of the Court) (slip op., at 14), but retained authority to do so on the basis that the funding would be put to religious uses. Two Terms ago, the Court reprised and extended Trinity Lutheran’s error to hold that a State could not limit a pri- vate-school voucher program to secular schools. Espinoza v. Montana Dept. of Revenue, 591 U. S. ___, ___ (2020) (slip op., at 9). The Court, however, again refrained from extend- ing Trinity Lutheran from funding restrictions based on re- ligious status to those based on religious uses. Espinoza, 591 U. S., at ___–___ (2020) (slip op., at 9–12).

As JUSTICE BREYER explains, see ante, at 8–9, this status- use distinction readily distinguishes this case from Trinity Lutheran and Espinoza. I warned in Trinity Lutheran, however, that the Court’s analysis could “be manipulated to call for a similar fate for lines drawn on the basis of reli- gious use.” 582 U. S., at ___, n. 14 (dissenting opinion) (slip op., at 25, n. 14). That fear has come to fruition: The Court now holds for the first time that “any status-use distinction” is immaterial in both “theory” and “practice.” Ante, at 17. It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shift- ing from a rule that permits States to decline to fund reli- gious organizations to one that requires States in many cir- cumstances to subsidize religious indoctrination with taxpayer dollars.

Second, the consequences of the Court’s rapid transfor- mation of the Religion Clauses must not be understated. From a doctrinal perspective, the Court’s failure to apply the play-in-the-joints principle here, see ante, at 13–14 (BREYER, J., dissenting), leaves one to wonder what, if any- thing, is left of it. The Court’s increasingly expansive view

4 CARSON v. MAKIN SOTOMAYOR, J., dissenting

of the Free Exercise Clause risks swallowing the space be- tween the Religion Clauses that once “permit religious exercise to exist without sponsorship and without interfer- ence.” Walz, 397 U. S., at 669.

From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction. See ante, at 10–11 (BREYER, J., dissenting). In addition, while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds. See ante, at 16 (BREYER, J., dissenting) (summarizing Bangor Christian Schools’ and Temple Academy’s policies denying enrollment to students based on gender identity, sexual ori- entation, and religion). The upshot is that Maine must choose between giving subsidies to its residents or refrain- ing from financing religious teaching and practices.

Finally, the Court’s decision is especially perverse be- cause the benefit at issue is the public education to which all of Maine’s children are entitled under the State Consti- tution. As this Court has long recognized, the Establish- ment Clause requires that public education be secular and neutral as to religion. See ante, at 2–3, 12 (BREYER, J., dis- senting) (collecting cases). The Court avoids this framing of Maine’s benefit because, it says, “Maine has decided not to operate schools of its own, but instead to offer tuition as- sistance that parents may direct to the public or private schools of their choice.” Ante, at 14. In fact, any such “deci[sion],” ibid., was forced upon Maine by “the realities of remote geography and low population density,” ante, at 2, which render it impracticable for the State to operate its own schools in many communities.

The Court’s analysis does leave some options open to Maine. For example, under state law, school administra- tive units (SAUs) that cannot feasibly operate their own

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schools may contract directly with a public school in an- other SAU, or with an approved private school, to educate their students. See Me. Rev. Stat. Ann., Tit. 20–A, §§2701, 2702 (2008). I do not understand today’s decision to man- date that SAUs contract directly with schools that teach re- ligion, which would go beyond Zelman’s private-choice doc- trine and blatantly violate the Establishment Clause. Nonetheless, it is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to par- ents to fund the only type of education the State may pro- vide consistent with the Establishment Clause: a reli- giously neutral one. Nothing in the Constitution requires today’s result.

***

What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a consti- tutional commitment.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exer- cise, any State that values its historic antiestablishment in- terests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.

Categories Accountability, Elections, Extremism, History, Religion, Separation of church and state

Carson v. Makin: The Supreme Court Decision That Tears Down the Wall of Separation Between Church and State

By dianeravitch

June 23, 2022 //

The United States Supreme Court released a 6-3 decision called Carson v. Makin that reverses many decades of precedent. The decision requires the state of Maine to provide public funding to religious schools because the state funds private schools in areas where population is so sparse that public schools are not available.

The two religious schools at issue are Temple Academy in Waterville, Maine, and Bangor Christian Schools. Temple Academy expects its teachers to “integrate biblical principles with their teaching in every subject” and “to spread the word of Christianity.” Bangor Christian Schools seeks to develop “within each student a Christian worldview and Christian philosophy of life.” Both schools deny admission to students based on their gender, gender identity, sexual orientation, and religion. Both schools require their teachers to be born-again teachers.

Why should the state of Maine or any other state be required to fund schools that practice discrimination and violate federal civil rights laws? Why should people who do not share the religious ideas of these schools be compelled to underwrite them? Why should a Catholic or a Buddhist or a Jew or a Muslim or an atheist pay taxes for schools that will exclude their own children and will refuse to hire them or their children as teachers?

Although the conservative majority likes to claim its loyalty to an “Originalist” interpretation of the Constitution, this decision cannot be called “Originalist.” The founders were very clear about their commitment to separation of religion and the state. They were keenly aware of the centuries of bloodshed in Europe that religious strife caused. They wrote the First Amendment to the Constitution to protect freedom of religion, but also to prevent any establishment of religion by government. These two phrases have often been in tension, and the Court has typically balanced them so that everyone is free to practice their religion but without government subsidy. There is literally nothing in the Constitution that supports this majority decision. It is hard to imagine a Supreme Court decision that departs more radically from the explicit, unambiguous statements of the Founding Fathers.

Some religious groups have fought for many decades to gain government funding for their schools, which are used to indoctrinate children into the tenets of their religion. It is somewhat ironic that at the very time that so many conservatives are criticizing public schools and teachers for “indoctrinating” their children into liberal views about racism and gender, they would nonetheless enthusiastically endorse the idea of public subsidy for religious organizations that explicitly indoctrinate children into their views.

There is a simple solution to the issue at hand: Maine and other states that fund private schools should stop doing so. They should use public funds only to support public schools. Public schools should be subject to all state and federal laws governing civil rights, health, and safety. Any private or religious schools that accept public funding under this ruling should be required to comply with the same state and federal laws that apply to public schools.

Here is the full decision.

I will separately post the dissents by Justice Breyer and another by Justice Sonia Sotomayer, which of course are included in the full decision.

Categories Disruption, Elections, Extremism, History, Religion, Separation of church and state

Texas Monthly: Will We Ever Learn the Truth About What Happened at Uvalde?

By dianeravitch

June 22, 2022 //

Forrest Wilder of the Texas Monthly has been trying to sort out the conflicting accounts of what happened at Robb Elementary School in Uvalde. He learned that everyone in a position of authority has gone silent. Governor Greg Abbott initiated the government response by praising the courage of law enforcement; when he learned that the shooter was left alone in the classrooms for more than an hour, he said he was “livid” about being misinformed.

One authority after another offered accounts and pointed the finger of blame for the slaughter of children and teachers. The State Senate promised a thorough investigation but Lt. Governor Dan Patrick pointedly left the Uvalde representative off the committee.

Now everyone has clammed up. Answers are not likely to be forthcoming until after the Governor’s race in November. A strategically timed response. Family members want to know what happened to their loved ones. They are not likely to get answers until Greg Abbott is safely re-elected.

Wilder writes:

More than three weeks have passed since the terrible events in Uvalde. What was once a torrent of appalling facts about the police response—many of them misleading or false—has now slowed to a trickle of leaks and lawyer-mediated, self-serving narratives. Governor Greg Abbott has pivoted to talking about the border again. Texas Department of Public Safety director Steve McCraw, last seen slipping into a closed-door meeting of a state House investigative committee, has gone quiet. The Uvalde schools chief of police, Pete Arredondo, finally emerged from hiding last week, lawyer at hand, to contradict reports that he had made the call to wait around for more than an hour while the gunman lingered in the classrooms with dead and dying children and teachers; hours later, key parts of his story were contradicted by evidence reported in the New York Times.

For anyone expecting an apology, accountability, or even a clear and concise narrative of what happened at Robb Elementary School on May 24, 2022, well, you may be waiting a while longer—perhaps forever. No one has resigned, no one has been fired, and local and state authorities from the Uvalde CISD superintendent up to the governor have stopped providing updates. Local and state agencies are refusing most requests to release information they are supposed to make available under Texas’s open records law, even to the state senator who represents Uvalde. Off-duty police from around the state, as well as mysterious motorcycle clubs whose members reportedly include former police officers, descended on Uvalde to physically block reporters from talking to families and community members, even after those locals had agreed to talk—a blockade so unusual and aggressive that one veteran Texas journalist has called it “bordering on official oppression.” It’s as if those in power concluded that the answer to communicating poorly was to stop communicating altogether, and to obstruct anyone seeking answers.

Perhaps all will be revealed soon. Perhaps ongoing investigations by the Texas Rangers and the U.S. Department of Justice will bring clarity. Perhaps the Texas House committee, which is taking testimony in private, will emerge with a full report. Perhaps someone will take responsibility. But right now, it seems that authorities are biding their time, waiting for public attention to move on to the next outrage, and hoping to insulate themselves from accountability. “People in Uvalde are angry,” said state senator Roland Gutierrez, a Democrat who represents the small city. “They want answers. They’re distrusting of law enforcement. The credibility of law enforcement is at stake,” he said. “They’re good people, but they just want honesty, man.”

The inflection point—the shift from a public reckoning to a studied silence—came on May 27, just three days after the nineteen kids and two teachers were killed. That morning McCraw gave a press conference in which he announced to a stunned world that police had committed a grave “mistake.” They had not, as Abbott and McCraw had stated in the immediate aftermath of the shooting, engaged the gunman at the earliest possible moment. Instead, the DPS director said, law enforcement had waited more than an hour before breaching the classroom and killing the shooter.

At the outset of the press conference, McCraw said his only goal that day was to “report facts” and not to “criticize what was done or the actions taken.” But faced with a barrage of pointed questions from the media, McCraw did point a finger—at Arredondo. Without using his name, McCraw said Arredondo, as incident commander that day, was responsible for the dilatory response. It was his decision—a “wrong decision, period”—to treat the gunman as a “barricaded subject” rather than an “active shooter.” It was Arredondo alone who had held back all the gathered law enforcement—Uvalde city police, the county sheriff’s deputies, Border Patrol officers, and DPS state police.

Later that day, Abbott held his own press conference. The governor, not known for his emotional range, seemed eager to convey outrage. In the immediate aftermath of the shooting, he had praised law enforcement for their “amazing courage” and averred that without their actions, “it could have been worse”—the “it” referring to the 21 deaths. Abbott wanted everyone to know that he had been wronged. “I was misled. I am livid about what happened,” he said. What happened, he explained, was that in the aftermath of the shooting “law enforcement officials and non–law enforcement officials” had debriefed him on the shooting. Abbott had taken notes by hand, writing everything down “in detail” and “in sequential order.” The information he then provided the public was a “recitation” of those facts.

Who had given him such bad information? What consequences would they face? If the governor was so angry, surely heads would roll. But Abbott offered no names, no accountability. In an unusually quick turnaround after an open records request, the governor’s office released his notes this week to a Houston television station. But the nine pages of scrawl confirmed only that Abbott had been misled, not who had done the misleading.

At the May 27 press conference, Abbott signaled that he was moving on. He admonished law enforcement leaders to “get to the bottom of every fact with absolute certainty” as part of their investigations. Ever since, Abbott, McCraw, and other officials have stopped answering questions or publicly sharing information, pointing to the ongoing investigations. It’s an all-purpose excuse. Republicans in the Legislature are using the investigations as a reason to avoid calling for a special session on gun violence prevention. They’re also conveniently postponing, perhaps forever, a discussion about gun safety; as one state senator put it, “bad facts make bad law.”

The story goes one. Subscribe to The Texas Monthly and finish reading.

Categories Accountability, Fake, Guns, Lies, Texas

Uvalde: The Police In the School Didn’t Try to Open the Classroom Doors

By dianeravitch

June 22, 2022 //

The Houston Chronicle reports that the scores of police who responded to the Uvalde massacre did not try to open the doors of the classrooms where the shooter was killing children and teachers until more than an hour had passed. (The story was originally published in the San Antonio Express News.) The story is based on surveillance video.

When you read the story, you will see why Governor Greg Abbott and Lt. Gov. Dan Patrick are trying to block any public release of official investigations until after the state elections in November. More than 100 “good guys with guns”were unable to stop one bad guy with a gun. The more we learn, the more questions are raised about the training, competence, and courage of those who were supposed to protect the students and teachers.

Surveillance footage shows that police never tried to open a door to two classrooms at Robb Elementary School in Uvalde in the 77 minutes between the time a gunman entered the rooms and massacred 21 people and officers finally breached the door and killed him, according to a law enforcement source close to the investigation.

Investigators believe the 18-year-old gunman who killed 19 children and two teachers at the school on May 24 could not have locked the door to the connected classrooms from the inside, according to the source.

Interactive timeline: Minute-by-minute reconstruction of Uvalde school shooting

All classroom doors at Robb Elementary are designed to lock automatically when they close and can only be locked or unlocked from the outside with a key, the source said. Police might have assumed the door was locked. Yet the surveillance footage suggests gunman Salvador Ramos, 18, was able to open the door to classroom 111 and enter with assault-style rifle — perhaps because the door malfunctioned, the source said.

Another door led to classroom 112.

Ramos entered Robb Elementary at 11:33 a.m. that day through an exterior door that a teacher had pulled shut but that didn’t lock automatically as it was supposed to, indicating another malfunction in door locks at the school.

Police finally breached the door to classroom 111 and killed Ramos at 12:50 p.m. Whether the door was unlocked the entire time remains under investigation.

Regardless, officers had access the entire time to a “halligan” — a crowbar-like tool that could have opened the door to the classrooms even if it was locked, the source said.

Two minutes after Ramos entered the building, three Uvalde police officers chased him inside. Footage shows that Ramos fired rounds inside classrooms 111 and 112, briefly exited into the hallway and then re-entered through the door, the source said.

Ramos then shot at the officers through the closed door, grazing two of them with shrapnel. The officers retreated to wait for backup and heavy tactical equipment rather than force their way into the classrooms.

Pedro “Pete” Arredondo, the Uvalde school district police chief and the on-scene incident commander, has said he spent more than an hour in the hallway of the school. He told the Texas Tribune that he called for tactical gear, a sniper and keys to get inside. He said he held officers back from the door to the classrooms for 40 minutes to avoid gunfire.

When a custodian brought a large key ring, Arredondo said he tried dozens of the keys but none worked.

But Arredondo was not trying those keys in the door to classrooms 111 and 112, where Ramos was holed up, according to the law enforcement source. Rather, he was trying to locate a master key by using the various keys on doors to other classrooms nearby, the source said.

While Arredondo waited for a tactical team to arrive, children and teachers inside the classrooms called 911 at least seven times with desperate pleas for help. One of the two teachers who died, Eva Mireles, called her husband by cellphone after she was wounded and lay dying.

Categories Accountability, Courage, Guns, Texas

Gary Rubinstein: The Astonishing Attrition Rates at Ember Charter School in Brooklyn

By dianeravitch

June 22, 2022 //

The New York State Board of Regents recently decided to permit the Ember Charter School in Brooklyn to expand and add a high school. Charter schools get permission to grow if they have demonstrated success. Gary Rubinstein checked state data and found that Ember’s greatest “success” was getting rid of students by attrition.

The Regents must know this too. Why did they vote to expand a failing charter school?

Rubinstein writes:

Currently there are 267 charter schools in New York City. In New York State the charter ‘cap’ is 460, though the cap for New York City is 267 so as of right now, no new charters can open in New York City.

Charter school supporters often complain that the cap needs to be lifted or that some of the out of NYC charter slots could be given to New York City. But there are two ways that charters can get more students even without lifting the cap. The most obvious way is for charters to reduce their attrition rates. So a network like Success Academy has about 40,000 students right now. But about 75% of their students who start in kindergarten don’t make it to graduation. Success Academy could probably increase their population to 70,000 if few of their students weren’t on the official or unofficial ‘got-to-go’ list. The other way to evade the cap is for existing charter schools to expand into more grades.

Ember charter school is a K-10 school that currently has 568 students. They were recently permitted to add high school grades based, in part, on the school’s ability to raise test scores. If you go to their website you will see a very impressive looking graph:

The light green line shows the percent of their first cohort’s math percent passing the state test from grade 3 to grade 7. It went from 28% in grade 3 down to 23% in grade 4 and then again to 14% in grade 5 Then an amazing reversal occurred and in 6th grade they shot up from 14% up to 56% and the next year they had 82% passing in grade 7. It seems to be an incredible turnaround from 14% to 82% in just 2 years.

When faced with a miracle statistic like this, there are two questions that cross my mind. The first thing I wonder is how much of this growth is based on attrition. The second is whether they were able to replicate this success for their other cohorts.

For that first cohort who finished 7th grade in 2018, I found on the New York State data site that this cohort once had 60 students when they were in first grade. By the time they got to the miracle 2017-2018 year where they got 82% passing the math test, they were down to just 28 students. Here is a graph of their percent passing math and their cohort size on the same graph.

As you can see, the two graphs are practically mirror images of each other. When they were 3rd graders, 16 out of 57 was 28%. When they were in 7th grade, 23 out of 28 was 82%. So basically they got 7 more kids to pass the test.

I made a similar chart for the second and third cohorts. The second cohort had similar attrition, they went fro 71 students down to 37 between 4th grade and 7th grade but they did not get the 82% passing by 7th grade. They only got to 43% passing, even with the nearly 50% attrition.

The third cohort was the lowest performing of all. They had almost no attrition, keeping around 65 students throughout. They only had 6% of that cohort passing in both 3rd and 4th grade. And by 6th grade they were up to 23%, well below the district.

So just like so many other charter schools, when they can’t cheat by booting out their students, their test scores are nothing special. How they get permission to expand is definitely a scandal.

Categories Charter Schools, Education Industry, Fake, New York, New York City

Texas: State Police Chief Blasts Grossly Inadequate Response to Uvalde Massacre

By dianeravitch

June 21, 2022 //

Drip by drip, we are learning the facts about what happened in the Robb Elementary School in Uvalde when a killer barged in. He could have been stopped. Lives could have been saved. But the incompetence of the police leadership caused an unconscionable delay in stopping the killer. Well-established protocols were ignored (stop the shooter asap, even if you don’t have enough men or equipment, stop the killer). As it happened, the police in Uvalde had more men than they needed and all the equipment they needed to stop the killer. But they didn’t.

The head of the state police called the response an abject failure. The pokice had shields and weapons. They did not need a key. They stood around and waited for 77 minutes.

AUSTIN, Texas — The head of the Texas State Police offered a pointed and emphatic rebuke of the police response to a shooting last month at Robb Elementary School in Uvalde, Texas, calling it “an abject failure” that ran counter to decades of training.

In his comments before a special State Senate committee in Austin, Steven McCraw, the director of the Department of Public Safety, said that just minutes after a gunman began shooting children inside a pair of connected classrooms on May 24, the police at the scene had enough firepower and protective equipment to storm the classroom.

But, he said, the on-scene commander “decided to put the lives of officers ahead of the lives of children.” Mr. McCraw, speaking forcefully, said the same commander had delayed confronting the gunman because he “waited for a key that was never needed.”

Mr. McCraw said that the doors to the classrooms could be locked only from the outside. “There’s no way to lock the door from the inside. And there’s no way for the subject to lock the door from the inside,” he said, adding that a teacher had made a request for the locks to be fixed, believing they were broken, before the shooting.

“I don’t believe, based on the information that we have right now, that that door was ever secured,” Mr. McCraw said. “The door was unsecured.”

There were so many police officers present that no one knew who was in charge. It turns out that no one was in charge.

This is an instance where the planning was wholly inadequate.

100+ men with guns were unable to stop one bad guy with a gun.

They had the guns, the shields, and overwhelming force. And for 77 minutes, they stood by.

Categories Accountability, Safety, Texas

U.S. Supreme Court Rules That States Must Fund Tuition at Religious Schools if They Fund Other Private Schools

By dianeravitch

June 21, 2022 //

114

To no one’s surprise, the ultra-conservative Supreme Court ruled in favor of funding religious schools in states that fund other private schools. Whereas the Supreme Court has long issued rulings forbidding any state support for religious schools, the current Supreme Court has signaled its willingness to rule in favor of equal treatment of religious schools. Brick by brick, this Supreme Court is dismantling the “wall of separation” (Thomas Jefferson’s phrase) between church and state.

David Savage of the Los Angeles Times reports:

WASHINGTON —

The Supreme Court on Tuesday extended its support for religious schools, ruling that parents who send their children to such institutions have a right to tuition aid if the state provides it to other similar private schools.

The 6-3 decision in the Carson vs. Makin case from Maine could open the door to including religious schools among the charter schools that are privately run but publicly financed.

In the past, the high court had said that giving public funds to church schools violated the 1st Amendment’s ban on an “establishment of religion.”

But in the past five years, the court’s conservative majority has flipped the equation and ruled it is unconstitutional discrimination to deny public funds to church schools simply because they are religious.

Maine has an unusual subsidy program because many of its small towns do not have a high school. In such cases, students may enroll in a private school or in another public high school, and the state pays their tuition.

Since 1980, however, the state has not extended these subsidies to students in church schools, apparently fearing it would be unconstitutional to do so.

The court majority said that was a mistake.

Among the six conservative justices in the majority, all of them attended Catholic schools except for Justice Samuel A. Alito Jr., who went to public elementary and secondary schools in New Jersey.

The conservative justices in recent years have cast aside the principle of church-state separation and argued it grew from an anti-Catholic bias in the late 19th and early 20th centuries.

“It was an open secret that ‘sectarian’ was code for ‘Catholic,’” Chief Justice John G. Roberts Jr. wrote in 2020, describing the common state laws that prohibit sending tax money to schools affiliated with a church. These restrictions were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,” he said in Espinoza vs. Montana.

The 1st Amendment forbids laws “respecting an establishment of religion,” which had been seen as barring the government from subsidizing religion. But Justices Clarence Thomas and Neil M. Gorsuch have disagreed.

“The modern view which presumes that states must remain … virtually silent on matters of religion is fundamentally incorrect,” Thomas wrote in an earlier school case. “Properly understood, the Establishment Clause does not prohibit states from favoring religion.”

Notre Dame law professor Nicole Garnett, a former Thomas clerk, predicted last year there will be a move “in the near future to permit religious charter schools,” either through the courts or the states.

If these “charter school programs are properly considered programs of private school choice,” they can take advantage of the court’s ruling forbidding the exclusion of religious schools, she said.

My comment as an historian who has studied church-state issues:

The Court is right that there was a strong anti-Catholic bias in American society throughout the nineteenth century. The so-called Blaine amendments found in many state constitutions were animated in large part by a desire to block public funding of Catholic schools. As I showed in my book “The Great School Wars,” a history of the New York City schools, the Catholic Church eagerly sought public funding in the 1840s.

But the ban on funding religious schools that has been in place nationally for more than a century applied to all religious schools, not just to Catholic schools. Schools run by Protestants, Catholics, Jews, Muslims, and other religious faiths were ineligible for public funding. This view was reinforced repeatedly by the Supreme Court in numerous rulings. The common understanding, upheld by the Court, was that public funds should not be used to indoctrinate public funds into the belief system of any religious faith.

Public schools exist to promote public purposes: literacy and judgment needed to vote, to serve on juries, to participate in civic life, to sustain a democratic polity. Religious schools exist to teach and perpetuate–and yes, to indoctrinate–the faith of adherents. Religious believers do not want to support the schools of other faiths. But under this ruling, all religious faiths will be entitled to public funding in any state that funds any private schools.

Maine should end its policy of “tuitioning” and limit public funds to public schools. Other states that subsidize any private schools should stop doing so. The path on which SCOTUS has embarked will end in publicly funding schools for every religion, of which there are scores. It threatens the principle of the common school, supported by the public and open to all children.

The next step, as the article suggests, will be religious charter schools, scooping up public funds with no accountability, no oversight, and no adherence to anti-discrimination laws. Is it not unjust to expect the public to pay for schools where their own children are ineligible to attend because of their own religion?

Betsy DeVos and Charles Koch must be celebrating right now.

Categories Accountability, Democracy, Funding, Religion, Separation of church and state

Texas Tribune: Bombshell Revelations About Uvalde Massacre

By dianeravitch

June 21, 2022 //

The Texas Tribune, an independent journal, has been first to report on the news about the Uvalde massacre. In this story, there are new revelations based on video footage from inside the school.

Some of our takeaways include:

The records show a well-equipped group of officers entered the school almost immediately. They pulled back once the shooter began firing inside the classroom. They waited for more than an hour to reengage.
There is no security footage that shows police officers attempted to open the classroom doors that the shooter hid behind. Law enforcement officials are skeptical, the Tribune has confirmed, that the doors were locked or that anyone physically tried to open them.
At least some officers on the scene seemed to believe that Arredondo was in charge inside the school, and at times Arredondo seemed to be issuing orders. That contradicts Arredondo’s assertion that he did not believe he was running the law enforcement response…

The officers in the hallway of Robb Elementary wanted to get inside classrooms 111 and 112 — immediately. One officer’s daughter was inside. Another officer had gotten a call from his wife, a teacher, who told him she was bleeding to death.

Two closed doors and a wall stood between them and an 18-year-old with an AR-15 who had opened fire on children and teachers inside the connected classrooms. A Halligan bar — an ax-like forcible-entry tool used by firefighters to get through locked doors — was available. Ballistic shields were arriving on the scene. So was plenty of firepower, including at least two rifles. Some officers were itching to move.

One such officer, a special agent at the Texas Department of Public Safety, had arrived around 20 minutes after the shooting started. He immediately asked: Are there still kids in the classrooms?

“If there is, then they just need to go in,” the agent said.

Another officer answered, “It is unknown at this time.”

The agent shot back, “Y’all don’t know if there’s kids in there?” He added, “If there’s kids in there we need to go in there.”

“Whoever is in charge will determine that,” came the reply.

Categories Accountability, Guns, Safety, Texas

Trump Supreme Court Strikes Down Limits on Gun Control

Charles P. Pierce: Supreme Court Declares Establishment Clause Unconstitutional

The Dissenting Opinions to Carson v. Makin

Carson v. Makin: The Supreme Court Decision That Tears Down the Wall of Separation Between Church and State

Texas Monthly: Will We Ever Learn the Truth About What Happened at Uvalde?

Uvalde: The Police In the School Didn’t Try to Open the Classroom Doors

Gary Rubinstein: The Astonishing Attrition Rates at Ember Charter School in Brooklyn

Texas: State Police Chief Blasts Grossly Inadequate Response to Uvalde Massacre

U.S. Supreme Court Rules That States Must Fund Tuition at Religious Schools if They Fund Other Private Schools

Texas Tribune: Bombshell Revelations About Uvalde Massacre

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