The Supreme Court this week held that a Maine school funding scheme violated the Constitution. Maine has some rural school districts that lack a secondary school. The Maine law allowed those districts to sign contracts with nearby public schools for the education of their high school students or to pay tuition for the students at private schools as long as the private schools were not sectarian. (A conservative organization misleadingly characterized the Maine law in this way: “Maine passed a law that banned families from sending their children to religious schools.”)
Chief Justice John G. Roberts, Jr., writing for the majority of six, said that states are not required to support religious education, but if they subsidize any private schools, they may not discriminate against religious ones: “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”
One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian Schools, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.” In his dissent, Justice Breyer wrote that both schools “have admissions policies that allow them to deny enrollment to students based on gender, gender identity, sexual orientation and religion, and both schools require their teachers to be born-again Christians.”
The decision was not a surprise. Under the Roberts court, claims from religious groups have been upheld at a rate higher than any time in the last seventy years. The Court’s split was also expected with the six conservative justices, all Catholics, in the majority.
The debate is going on as to whether this ruling promotes the constitutional right of the free exercise of religion or is an erosion of the constitutional wall between church and state, as the dissent maintained. (Often lost in the distinction as to whether a claim extends freedom of religion or whether the claim violates separation of church and state is that the anti-establishment clause was placed in the Constitution to promote religious freedom.) But the decision raises other issues that should be discussed.
A wing of conservatism advocates for the broad use of school vouchers. These vouchers are public moneys given to the parents for the education of their schoolchildren. Thus, parents, not the state, decide which school will get the government money. Conservative economists promoted the vouchers in the 1950s as a way to improve education. The claim was that allowing free market principles, under the slogan “school choice,” would work wonders for educational quality. Many of those seeking a religious education today support vouchers.
Because the voucher can be used at any private school including sectarian ones, public money is used for religious purposes. The Supreme Court had earlier made it clear that governments could not directly aid religious schools, but the use of vouchers gives parents control over the state money, and is, thereby, an indirect aid to religious schools. In a 5-4 decision, the Supreme Court in 2002 held that a school voucher did not, therefore, violate the federal Constitution.
The recent Court decision is another step in favor of vouchers. Some conservatives, however, want us to go still further. They would like the end of public schools as we now know them and go to an all-voucher system. If increasing numbers of children are separated into religious silos or segregated by gender identity, sexual orientation or any other sociological grouping, the fracturing of America is exacerbated. Would the benefits of vouchers outweigh this cost to American cohesion? That is something we should be discussing.