Jhis week, the U.S. Supreme Court ruled 6-3 in Carson v. Makin that a Maine program that prohibits “non-sectarian” schools from receiving financial assistance for tuition is a violation of the free exercise clause of the First Amendment. The decision is a welcome acknowledgment that religious schools should not be penalized for their loyalty to their religious tradition or tempted by the government to conform to public schools.
Many rural communities in Maine do not have public schools. Since the 19th century, Maine has had a program under which families in these communities (more than half of the school districts in the state) can receive grants to send their children to public schools in other districts or to private schools of their choice. But since 1980, state officials have excluded schools they consider “sectarian” from the program. The state defines a “sectarian school” as “a school that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of that faith. The Carson v. Makin The case was brought on behalf of Amy and David Carson and other parents who applied for public funding to send their children to private schools reflecting their religious beliefs.
In a dissent, in which he was joined by Justices Kagan and Sotomayor, Justice Breyer insisted that “government neutrality” on religious matters was essential, and that Maine was therefore justified in excluding schools seeking to “teach and promote religious ideals”. The majority opinion, however, points out that “there is nothing neutral about Maine’s program. The state pays tuition for some students in private schools, as long as the schools are not religious. This is discrimination against religion. The majority opinion of the Court in carson notes that “we have repeatedly argued that a state violates the free exercise clause when it excludes religious observers from public benefits otherwise available”. It adds that “a neutral benefit program in which public funds are disbursed to religious organizations through independent choices of private benefit recipients does not violate the Establishment Clause.”
Significantly, Majority Opinion Rejects State Defendants’ Attempt to Distinguish Between Religions identify and education practice denominational schools. Maine officials argued in their defense that they do not make schools ineligible for tuition because of their religion identify; after all, it would violate recent Supreme Court rulings in Lutheran Trinity and Espinoza. Discrimination on the basis of an institution’s religious status may now be impermissible, Maine conceded, but the government can legitimately withhold public funds if they will be used for religious activity. objective. A school with merely a residual religious identity, like many New England “preparatory schools”, would therefore be eligible to participate in the scholarship program, but not a “promotion” school.[ing] the faith or belief system with which it is associated and/or present[ing] the material taught through the prism of this faith. The Court correctly rejected Maine’s assertion, pointing out that in Our Lady of Guadalupe School v. Morrissey-Berruhe claimed that “[E]educating young people in their faith, instilling in them its teachings and forming them to live their faith are responsibilities that are at the very heart of the mission of a private religious school. The Court warned that “[a]Any attempt to give effect to such a distinction by examining whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational patronage.
Carson v. Makin thus raises an important question for religious liberty litigation: what if public funding of denominational schools comes at the expense of the distinctive mission of the school? The existence of tuition assistance programs like Maine’s may prompt private faith-based schools to change or water down their mission in order to receive funds. The availability of public funding creates a strong incentive to abandon these aspects of a school’s mission; indeed, a prominent Catholic school in Maine abandoned its distinctive religious character when curriculum requirements changed in 1980.
In Empower people (1977), Peter Berger and Richard John Neuhaus argued that Americans should rely less on government institutions and more on “mediating structures”, especially faith-based organizations, which they described as “agencies that generate and maintain value in society. They cautioned, however, that “there is a real danger that such structures will be ‘co-opted’ by government in an over-eager embrace that would destroy the very distinctiveness of their function.” In The ambiguous embrace, I have recorded many examples of public funding programs, in the United States and abroad, leading to such co-optations. I discovered that leaders of religious institutions, consciously or unconsciously, often engaged in “preemptive surrender,” conforming their standards and even their goals to those prevailing among their government-run counterparts.
Carson v. Makin recalls the danger of assuming that the formal identity of a denominational school is reflected in its actual mission and practice. Of course, the ruling, while providing a strong defense against government interference in the distinctive character of denominational schools, does not protect them from being subjected to cultural influences in a way that renders their identity meaningless. In the Netherlands, where the government fully funded denominational schools for a hundred years and provided strong legal protections for their separate missions, many Catholic and Protestant schools are indistinguishable from their secular counterparts. Unfortunately, this is also often the case in the United States.
Nonetheless, we welcome the Supreme Court’s explicit acknowledgment that denominational schools that maintain a strong distinct mission should not be punished for it. This recognition should, in turn, renew the commitment of those who work in or support a faith-based school to ensure that the mission is evident in all aspects of school life and work.
Charles L. Glenn is Emeritus Professor of Educational Leadership and Policy at Boston University.
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