Not so deep as a well, nor so wide as a church-door.
The Supreme Court has, as expected, poked another hole in the wall between church and state; it will weaken public education and open the door to making taxpayers foot the bill for religious discrimination.
Espinoza v. Montana Department of Revenue has further extended the precedent set by Trinity Lutheran v. Comer, a case that for the first time required “the direct transfer of taxpayers’ money to a church.” Historically, the free exercise clause of the First Amendment has taken a back seat to the establishment clause; in other words, the principle was that the government’s mandate to avoid establishing any “official” religion meant that it could not get involved in financing religious institutions, including churches or church-run private schools.
This has been a big stumbling block for the school voucher movement, because the vast majority of private schools that stand to benefit from vouchers are private religious schools. In fact, where school vouchers have been established, they are overwhelmingly used to fund religious schools.
But for several years, conservative fans of school choice (including Secretary of Education Betsy DeVos) have been pushing the argument that a religious school is not free to exercise its religious faith if it does not get to share in taxpayer dollars. The wall between church and state has thus been characterized as discrimination against religion, and as conservatives celebrate this decision, they repeatedly characterize it as a blow for freedom. Turns out you can’t be really free without taxpayer funding.
There are a host of problems with the SCOTUS decision and the arguments behind it.
For one, the freedoms that private religious schools wish to enjoy include the right to discriminate. Choicers like to argue that vouchers make families free to choose, but private schools are free to reject students for any reason they choose. Investigations found that Florida’s robust voucher program funnels millions of dollars to schools that reject or expel LGBTQ students and faculty. Because Florida imposes little accountability on its private schools, the Orlando Sentinel also found private schools teaching about the happy co-existence of white owners and Black slaves in the pre-Civil War South as well as how men and dinosaurs once lived together.
For taxpayer dollars to flow to private religious schools, one of two choices has to be made. Either private schools retain their freedom to operate as they please, or they are accountable to taxpayers for living under the same rules as a public school. The former opens up the possibility of students being taught ideologically based falsehoods, even as taxpayers fund schools to which their own children would not be admitted. The latter means that private schools would trade a financial windfall for a loss of autonomy, maybe even have to accept some of Those Peoples’ Children in their private school. Sometimes we forget that the wall between church and state was also meant to protect the church; when you mix religion and politics, you get politics.
There will be tests if states choose to, as DeVos suggests, “seize this extraordinary opportunity.” Discussion of taxpayer support for faith-based schools almost always assumes those schools will be Christian. Taxpayers may become a bit more cranky if they are required to support Shariah Law High School or His Satanic Majesty Academy. But it’s clear that the decision is based on the notion that a voucher program is “neutral,” so anybody who wants to play this game can—unless someone wants to set up a government agency to certify whether a school’s religious connection is “legitimate” or not.
There is the economic loss for public schools as well. Supporters may argue that Montana’s program is an education tax credit scholarship program (the same as DeVos’s proposed Freedom Scholarship), and fans like to argue that the money comes from contributions, not direct tax dollars. But those contributions are credited against tax liability; if I give $5 million to the program, the government collects $5 million less from me, leaving a $5 million hole in the government budget.
And the hit public schools take will be disproportionate, because private voucher schools will still be free to accept only those students who don’t require costly adaptations to be taught. Even if a state doesn’t allow them to outright reject such students, a simple “We do not have a program or staff to meet that special need,” is all it takes to turn those students away.
School choice programs continue to be about a fundamental change in the US education mission. From a commitment (however imperfectly met) to provide a quality education for every single child, choice programs shift to a system that promises to educate only some students. This is the conversation we keep not having.
But in the meantime, we’ll have the conversation about using public tax dollars to finance private religious schools. SCOTUS now says that such financing is fine, and it remains to be seen what comes next.
Some states, like Florida and Ohio, will not be hugely affected because they have already dug their own tunnels under the church-state wall. Others could conceivably see backlash—SCOTUS says that if you have choice that includes any non-public schools, it must include religious schools, so one answer is to allow zero dollars for non-public schools. Meanwhile, watch for other folks to look for spots in the wall between church and state that have been further weakened by this decision.
For the immediate future, it will be celebration time for those who dream of dismantling public education and having the church “take it back,” and for those who want to profit from the dismantled pieces. For public school supporters, there is some solace in knowing that it could have been worse; as Diane Ravitch points out, the court could have found that all states must pay all religious private school rather than saying that religious schools must be included in any voucher systems. We’ll see what case comes up next.
