Racialized Religious School Segregation
abstract. Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.
In Carson v. Makin, the Supreme Court required Maine to allow schools providing religious instruction to participate in the state’s tuition-assistance program.1 While the issues in Carson are unique,2 the decision may pave the way for school-choice programs to proliferate. Proponents of school choice often position the issue in terms of racial equality. Their story goes: Inadequate funding, dismal facilities, latent racism, and poor educational outcomes are hallmarks of the public-school experience for many Black and brown3 students.4 Parents are looking for alternatives.5 School choice is a viable alternative because it will enable parents to “vote with their feet” and select a school where their children can get an education tailored to their needs and interests.6 Some choice proponents even say religious schools are uniquely positioned to help Black and brown students hailing from communities suffering from disinvestment.7
These claims by choice advocates focus on the education of the individual student to advance racial equality as the end goal. Yet the focus on racial equality gives short shrift to racial justice. Racial justice requires collective group-based liberation and the elimination of group-based racial hierarchies.8 While racial equality can occur at an individual level, racial justice must occur at a group level.9 Effectuating racial justice in education is important because it holds the key to stabilizing what is currently a nascent and fraught multiracial democracy. Racially integrated public schools can effectuate racial justice by facilitating equal access to educational opportunities, teaching tolerance, and—most importantly—cultivating political equality among citizens.10 Examining the role of public schools in supporting American democracy can illuminate the importance of racially integrated schools for stabilizing America’s multiracial democracy.
From America’s inception, an educated citizenry was recognized as necessary to make democracy work.11 Initially, citizens received education through private-society charters and religious schools.12 Over time, a system of public education was created that provided a common nonsectarian education to some citizens.13 Notably, since American democracy was initially one of racial exclusion rather than inclusion, states unevenly meted out public education based on race.14 This exclusion created racialized, status-based hierarchies that marked whites as the exclusive in-group within American democracy’s conception of citizenship. Nonwhites were cast as out-groups, excluded as citizens but necessary inhabitants for providing labor.15 This arrangement furthered racial capitalism16 and produced “fractured and unequal forms of social existence” for Black and brown persons.17
Although education is now ostensibly available to all, public schooling still helps perpetuate racialized status-based hierarchies. It assigns students to schools using race-neutral structures that afford white students better educational opportunities than those afforded Black and brown students.18 This inequality primarily results from public-school assignments that are linked to residence despite the sordid history of discriminatory state housing policies that have caused residential segregation.19 However, courts construe segregated residential-housing patterns as the product of private choices made by individuals rather than state action; thus, they do not outlaw school segregation caused by residential segregation.20
Parents as private actors, then, choose segregated and unequal schools by selecting where to live.21 While these choices certainly impede racial integration of schools, the state can use certain tools to mitigate the pernicious effects of these choices in public schools. With pernicious private-school choices, however, the state has fewer remedial tools.22 Moreover, outsourcing education to the private sector limits the reach of public schools’ modeling American democracy.23
The central claim of this Essay is that racial integration of public schools—though much maligned—is indispensable to moving America’s democracy away from its exclusionary origins and into a well-functioning, racially inclusive democracy. Choice in the private market exacerbates inherent and unresolvable tensions between school choice and racial integration. School choice generally operates against a backdrop of racial pluralism, racial subordination, and racial power imbalance that puts choice in tension with principles of equality, tolerance, and universal citizenship. Expanding school-choice options to include private religious schools is likely to exacerbate these tensions in ways that threaten the possibility of moving into a functioning multiracial democracy.
This Essay explores these themes further. Part I makes the normative case for public schools generally and racially integrated public schools specifically to American democracy. Part II analyzes the tensions between school choice and racial integration of schools. It suggests America’s racial pluralism, particularly at the metropolitan level,24 makes it difficult for the two concepts to coexist. Part III argues that expanding school-choice programs to include religious schools will create new forms of racialized religious segregation that are difficult to remedy as a matter of law. Part IV concludes by articulating the specific harms to democracy posed by racialized religious school segregation.
I. the importance of racially integrated public schools to american democracy
A. Public Schools and Democracy
What role should public schools play in a well-functioning multiracial democracy? Elizabeth Anderson offers a helpful three-pronged definition of democracy.25 She describes democracy as 1) a membership organization with “universal and equal citizenship” for all members of the society; 2) a “government for the people, carried out by discussion among equals”; and 3) a culture that involves “free, cooperative interaction of citizens from all walks of life on terms of equality.”26 The three prongs are symbiotic: each is necessary for democracy to fully function.
Public schools lay the groundwork for the prongs to work together. They produce a citizenry with the critical-thinking skills necessary to participate in democracy as a mode of governance.27 They also provide citizens with the skills needed to obtain financial means, political wherewithal, and practical abilities. These skills give citizens the autonomy to “lead the kind of life [they] ha[ve] reason to value,”28 which enables them to live as equal members of the democracy and effectuate democracy as a membership organization.29 Finally, public schools inculcate democracy as a culture. They provide citizens with the intergroup contact necessary to cultivate trust, empathy, and community amongst a diverse array of citizens.30
One might reasonably question whether public schools actually accomplish these goals. Public schools face well-documented problems with educating all students31 and combating racial segregation.32 However, public schools can and do offer high-quality education when provided adequate state funding and resources; in particular, teacher compensation and class size substantially factor into student outcomes.33 The same is true for the states’ ability to create schools that have racial diversity and in which intergroup contact occurs. States can foster intergroup contact by implementing intentional policies to foster racial and socioeconomic diversity.34
Public-school failures of both quality and integration stem directly from state and local policy choices about funding, structuring, and delivering education. For example, states and localities continue to rely on school-funding schemes that create gross disparities in school funding; cut teacher salaries; and resist implementing school-assignment plans that create more diverse schools.35 Individual parental choices about where to live or which school-choice program to use only compound the inequality state policies have fostered.36
The problems public schools face are arguably political. Therefore, one might reasonably wonder whether private schools could better serve the same democracy-enhancing functions since they are not mired by the same political challenges hampering public schools. Public schools, however, offer two significant advantages over private schools in serving a democracy-enhancing function—their purpose and their design.
The Founders believed that an educated citizenry was necessary to produce competent citizens who had the knowledge and wherewithal to maintain American democracy.37 To that end, the citizenry was originally educated by a mix of public, religious, and philanthropic schools.38 However, the religious and ethnic pluralism of the citizenry led the Founders to believe that, in order for American democracy to survive, citizens needed to be inculcated with a shared civic virtue.39 The Founders thought a system of publicly operated schools would be the best vehicle for melding students from a wide swath of backgrounds, inculcating shared civic virtues, and turning young persons into competent and virtuous citizens.40 Thus, the original purpose of public schools was producing citizens who could sustain American democracy. While the purposes of public schooling expanded over time to include preparing workers to advance the American economy and promoting social welfare, public schools fundamentally have remained geared towards serving American democracy.41
The goal of serving American democracy also influenced the way in which public schools were designed. They were designed to model democracy by enabling citizens to engage in collective self-rule through local control and governance of schools.42 Public schools are thus governed by publicly elected officials at both the state and local levels.43 This governance structure allows for broad-based citizen participation, representation, and deliberation. All citizens, even those without children in public schools, can determine how students will be educated. While the advantaged can, at times, coopt the structure in their own favor,44 the governance structure that allows for public influence and input models democracy in both its good and bad aspects.
Conversely, the goals and structure of private schools substantially differ in ways that make it more challenging for these schools to be the primary vehicle for educating citizens to sustain American democracy. Structurally, private schools situate education as benefiting only the individual students who attend the school and their parents. There are no mechanisms for citizens who are not parents or students to provide input into education policies at private schools.
Private schools’ purpose is also driven by market ideology. Private schools market and differentiate themselves to appeal to specific audiences, limiting admission to their desired clientele.45 This consumer-oriented model necessarily requires prioritizing consumer sovereignty in making education-policy choices. Indeed, private schools are incentivized to meet the needs of tuition-paying parents and students, even if the parents’ requests do not inure to the greater societal interest in building virtuous citizens.46 The consumer-oriented model also allows private schools to serve as “opt-out” landing places for families that disagree with government policies intended to benefit the common good.47
More critically, private schools cater to those with similar religious beliefs, academic abilities, and social statuses.48 While private-school parents may claim to prefer diversity and inclusion, private-school enrollment remains racially and socioeconomically homogenous, even at private schools that hold progressive values or promote social justice.49 The reasons for this are varied, but one potential explanation is that parents may value benefits such as academic prestige and exclusivity more than they value diversity.50 More specifically, parents are more likely to act in ways they believe advance their own children’s best interest than in ways that advance the greater good. The consumer-driven private-school market can cater to these priorities, making it more challenging for private schools to facilitate the diversity and intergroup contact necessary to move America’s multiracial-democracy project forward.
Admittedly, parents in public schools make similar choices, choosing to live in areas that will enable their children to attend the most resource-rich schools, which are often also predominately white and affluent.51 Unfortunately, race still colors parents’ perceptions of school quality and desirability.52 The more nonwhite students enrolled in a school, particularly the more Black students, the more the school’s academic quality is perceived to be poor, no matter the school’s test scores or other objective measures of performance.53 White parents’ avoidance of schools with large populations of students of color arguably drives persistent school segregation.54
Parental school selection in both the private- and public-school context is influenced by race and socioeconomics. Yet private schools can cater to the worst tendencies in parents with the schools’ consumer-oriented focus, ability to set admissions standards, and limited number of stakeholders. While parents can make similar exclusionary choices in public schools through their residence decisions, the state has the power to enact policies that make it more difficult for parents to act on their segregationist tendencies. Further, the state can mitigate the effects of parents’ choices on the racial composition of schools.55 It is a matter of political will to do so.
All in all, public schools are a preferable vehicle for imbuing students with the tools needed to be citizens and furthering America’s burgeoning multiracial democracy for the following reasons: the power of the state to legislate racially integrated public schools; public schools’ common-good purpose; and their democratic design. As discussed in the following Section, directly addressing racial segregation in public schools is preferable to adopting a choice-based private-school model.
B. Racially Segregated Public Schools Undermine Democracy
Despite the unique benefits of public schools, American public schools suffer from pervasive racial segregation,56 which undermines their ability to fulfill the important roles needed to support democracy. Racial segregation especially impedes schools’ ability to facilitate universal and equal citizenship. Universal and equal citizenship presupposes that all citizens receive access to an education that will “equip [them] with the tools to function as knowledgeable voters, motivate them for civic engagement, and give them a stake in promoting political stability and social harmony.”57 The research is clear: segregated schools provide vastly disparate educations. Predominately white elementary and secondary schools have greater resources and provide greater opportunities for their graduates.58 Conversely, predominately nonwhite elementary and secondary schools have fewer resources and provide fewer opportunities for their graduates.59 The unequal education rendered to the citizenry limits the ability of all citizens—white or not—to become fully informed members of the democracy on equal terms, thereby impairing schools’ ability to facilitate democracy as a membership organization.
Moreover, segregated schools limit interaction among citizens in ways that are antithetical to establishing democracy as a culture. White students reared in predominately white schools may become imbued with a false sense of superiority that makes it difficult for them to engage in nonhierarchical interracial relationships.60 School segregation also makes white students less tolerant and more likely to accept rigid stereotypes about and normalize violence against nonwhites.61 Critically, segregation can also lead white students to develop expectations of white superiority and “abandon a commitment to democratic norms if they believe democracy might elevate people of color’s station.”62 Even worse, white citizens steeped in segregation are more susceptible to embracing authoritarianism.63 Black and brown students reared in racially segregated schools also suffer. Among other things, they face depressed educational outcomes64 and even health inequities.65 Simply put, segregated schools prohibit inculcation of democracy as a culture by creating racialized status-based hierarchies that further white supremacy.66
Integrated schools can dismantle the culture of racial hierarchy and inequality endemic to segregated schools. Admittedly, the term “integration” is difficult to define precisely.67 It is more than desegregation, the “elimination of discriminatory laws and barriers to full participation in American life.”68 It is also more than racial balancing. While desegregation and racial balancing are necessary components of integration, they do not comprehensively define the term. Integration at its essence refers to “the nature of intergroup relations, to the quality of group treatment and interaction that exists.”69 It “requires effective efforts to dismantle prejudices, to build common experiences around shared goals, and to assess success in terms of social ties across groups.”70 Ultimately, integration effectuates “a transformation of the setting in which the identities of students are formed and form others.”71
Using those definitions as a baseline, this Essay uses the term “racially integrated schools” to mean schools that have student bodies that approximate the demographic makeup of the metropolitan area in which the school is located; offer a racially pluralistic curriculum; cultivate an environment that is inclusive and respectful of all; and provide access to tangible knowledge, cultural capital, and social capital. Empirical research shows that schools with some semblance of racial integration produce positive academic achievement and facilitate social cohesion among students.72 Such benefits are important because America’s democracy is currently frayed by racial and economic inequality, a lack of cross-racial empathy, distrust, extrajudicial violence against Black and brown citizens, and contestation over the desirability of a multiracial democracy.73 All these phenomena threaten the three prongs of democracy.
Racially integrated schools bring together citizens from all walks of life at an early age74 and are perhaps the most vital spaces for rooting democracy at the formative stages of life. Racial segregation in housing and other facets of their lives is high, meaning schools are the one place where children obtain interracial contact75 and find temporary escape from racially siloed lives. Racially integrated schools can engender the social cohesion and tangible knowledge that citizens must have for the three prongs of democracy to function effectively.
To be sure, valid questions exist as to whether school integration is realistic or desirable. White parents are often fiercely averse to integration despite their stated support and desire for integrated schools. The parental tendency to seek what they believe is best for their individual child leads white parents to flee racially diverse schools and neighborhoods.76 It also leads them to fight vehemently against curricular and student-placement changes that would lay the groundwork for intergroup interaction and facilitate integration.77 Given the force of white aversion to integration, critics reasonably question whether efforts would be better spent improving the conditions of schools for Black and brown students rather than chasing integration.78
This critique, however, minimizes the role of courts, policymakers, and school administrators in constructing barriers to integration.79 Public actors abandoned systemic efforts to achieve integration in places with rampant school segregation.80 Yet policy mechanisms to create racially integrated schools still exist. At the local level, districts could eschew purely residence-based assignment plans and instead enact plans that seek to balance the number of students who receive free and reduced lunch. Owing to the connections between race and class, such a facially race-neutral plan can decrease racial segregation in schools.81
State legislatures82 could also redraw school-district boundary lines and attendance zones to decrease racial segregation.83 At the federal level, Congress could use its funding power to incentivize states to engage in voluntary integration efforts.84 Finally, all three levels of government could enact policies to make white flight more difficult. These policies could include drawing regional rather than municipal school districts,85 changing school-district boundary lines every few years so that families could not purchase a home with the expectation that their child would gain access to a particular school,86 or including financial penalties in federal legislation for schools that fail to make efforts to desegregate.87
Critics also suggest that school integration requires students to assimilate, lose community ties and autonomy, and suffer emotional distress.88 Assimilation is a form of cultural imposition that requires nondominant groups to abandon their identities and relinquish collective group-based power.89 True integration, however, transforms group relationships from dominant and subordinate to equals. True integration eschews complete assimilation and loss of autonomy. It seeks to abolish racial segregation—but not racial identities—and recognizes that racial identification and race-conscious policies are not only necessary but desirable to achieve true integration.90 True integration mitigates the very real and harmful effects of white supremacy.
School integration undoubtedly requires Black and brown students to bear heavy costs.91 But given the realities of white supremacy, the costs of not pursuing integrated schools are even greater. Pursuing integration sets a path toward disrupting the racial subordination that is inherent to segregation in America. Because of America’s history of white supremacy, segregation in America makes material and social equality impossible. Schools today that are racially segregated demonstrate as much.92 Without school integration, “no [education] reform can work effectively because it will not be distributed to all students[,] nor will it be done in an embracing and diverse environment.”93
Segregation creates disparities in access to opportunity and widens racial inequities across multiple domains of social and economic life.94 It impairs the physical health and well-being of Black and brown citizens.95 If Americans accept a status quo of segregation and fashion solutions that take separation as a given, they will further entrench racial subordination. Though school integration is not a panacea, if America’s multiracial democracy has any chance at surviving, integration is a necessary utilitarian policy choice that we must not abandon.
In sum, racially integrated public schools are critical to the functioning of American democracy. They have the power to disrupt the racial and economic inequality that is endemic to an American democracy founded upon white supremacy.96 But as the following Part describes, pursuing racial integration of schools and providing families with unfettered choice in selecting the schools their children will attend are intractably in tension. So, a ruling like Carson inevitably prioritizes choice and deprioritizes racial integration.
II. the tension between racial integration and school choice
If the market prevails as the model for organizing U.S. education, the possibilities for strengthening democratic society and developing a democratic citizenry are ended.97
School choice is supposed to reform public education by creating a marketplace of schools and allowing families to shop for a school.98 But in doing so, it situates students as consumers rather than as citizens. It shifts the purpose of public education away from cultivating citizens for American democracy toward furnishing a marketplace through which individual consumers can gain economic, social, and political advantage. To the extent the school-choice model engages with democracy, it defines democracy through the lens of freedom, reasoning that democracy should afford citizens the freedom to choose schools free from state regulation.99 School choice furthers values like liberty, autonomy, privacy, and competition.100 In contrast, school integration furthers values like equality, tolerance, and citizenship training.101 The two concepts are inherently and intractably in tension.102 The tension breaks down in three ways.
First, under the school-choice model, parents are not required to consider how their choices impact the broader community. Parents instead select schools that fit their preferences, even if that preference is for a school that teaches discrimination, intolerance, or myopic American history.103 Schools, in turn, are incentivized to cater to parental preferences for education, even if those preferences run counter to the equality and tolerance values undergirding school integration.104
Second, parents of different racial and socioeconomic groups use school choice differently. Parents select schools that reflect either their ability to exercise social privilege and power105 or the limits of the institutional context in which their choices are being made.106 Stated differently, parents make choices that allow them to ensure their children are in schools that further their racialized social status or fit existing constraints. For example, white parents often choose schools based on the social status of the other students in the school, preferring schools with high numbers of middle-class white students and fewer numbers of low-income students of color.107 On the flip side, due to structural racism, parents of color are more likely to choose schools that allow them to work around constraints, considering factors such as transportation, free or reduced lunch, or walkability.108 Parental perceptions of scarcity in high-quality educational opportunities heighten the stakes for families with greater race, class, or social-status advantage.109 It makes them more likely to make choices they believe will further their advantages.110 The net result is exacerbating segregation in schools. Evidence from charter-school and voucher-choice programs supports this claim.111 Thus, increased choice risks further entrenching racial hierarchy and inequality and impeding the ability of schools to foster the kind of equality, tolerance, and citizenship training necessary for individuals to operate as equals within America’s democracy.112
Finally, racialized power dynamics place true choice out of reach for marginalized Black and brown students.113 This is despite the Supreme Court’s ruling in Pierce v. Society of Sisters,114 which opened the door for school choice by holding that parents have a liberty interest in directing “the upbringing and education of children under their control.”115 While the liberty interest afforded in Pierce was once a shield parents wielded to protect their parental autonomy from incursions by the government, parents now use it as a sword to insulate their children from Black and brown children.116 Consequently, choice for white parents becomes a race-neutral mechanism for promulgating racial exclusion.117 By contrast, marginalized Black and brown students cannot realistically use school choice to access integrated private schools.
Choice that leads to racial exclusion harms American democracy by diluting social solidarity.118 Social solidarity is the “sense of fellow-feeling that extends beyond people with whom one is in personal contact.”119 It is the understanding that all within the polity are human beings who deserve the same basic human rights and dignity.120 School choice that exacerbates segregation precludes children from obtaining the commonality of experiences necessary to build cross-racial social solidarity.121 In a multiracial democracy, social solidarity is critical because “the more attenuated the bonds of social solidarity become, the less inclusive the concerns of the median voter will be. The socially excluded will thus be failed by democratic politics.”122 One can see this with recent electoral politics and legislation that seemingly ignores or targets members of marginalized groups.123
While some Black and brown parents may prefer schools in which they are in the majority, the voluntariness and implications of these choices cannot be divorced from America’s social context.124 The choice cannot really be voluntary if it is a defensive reaction to the harms of white supremacy.125 Thus, though there may be in-group benefits, even choices that produce predominately Black and brown schools impede equality and undercut the democratizing functions of public education.
The tensions between school choice and school integration are difficult to reconcile. Against a backdrop of white supremacy, increased choice facilitates exclusion, impedes equality, and hampers the ability of schools to facilitate social solidarity. As the next Part demonstrates, allowing school-choice programs to include religious schools is likely to worsen the problem by creating racial segregation contoured by religion.
III. intersection of school choice, religion, and segregation
A. Racialized Religious Segregation
In Zelman v. Simmons-Harris, the Supreme Court held that including religious schools in a state-funded school-choice program did not violate the Establishment Clause.126 To date, the number of sectarian schools participating in such programs is limited, possibly because they do not want to be hampered by government regulations attached to public money.127 Yet the Court in Carson v. Makin held unconstitutional Maine’s prohibition on allowing schools that provide religious instruction from participating in Maine’s tuition-assistance-program. In doing so, the Court reasoned that the status/use distinction Maine relied upon in barring sectarian schools from receiving public funds risked discriminating against sectarian schools based on their religious nature.128 It emphasized that when Maine decided to allow parents to choose a school rather than operate and assign students to a public school, Maine could not deny parents the choice of a school that proffers religious instruction because it would interfere with the parents’ right to free religious exercise.129 The Court’s reasoning portends that the permissible tentacles of state regulations over religious schools accepting public money are shrinking.130 If so, the number of private religious schools participating in school-choice programs may increase. Carson may also open the door for the establishment of religious charter schools.131 Either way, the Carson decision could result in a proliferation of state-funded religious private or charter schools. This scenario could potentially create new forms of “racialized religious segregation,” which this Essay defines as in-group homogeneity in both race and religion.
Racialized religious segregation could happen because race and religion are undeniably linked. Religion has historically played a significant role in “othering” nondominant groups and in justifying racial constructions and hierarchical orderings.132 Most churches and private sectarian schools are racially identifiable.133 Carson might result in the creation of more church-affiliated schools, both private and charter. Given the racial segregation in churches, racialized religious segregation may well furnish the next frontier in school segregation.134
Further, religions are not organized solely around a collection of spiritual beliefs; many are also organized around social and political viewpoints.135 For example, one study found that private Christian schools used textbooks that taught that “President Barack Obama helped spur destructive Black Lives Matter protests, that the Democrats’ choice of 2016 nominee Hilary Clinton reflected their focus on identity politics, and that President Donald Trump is the ‘fighter’ Republicans want.”136 These social and political viewpoints coalesce with race in ways that increase the possibility of racialized religious school segregation.137 The proliferation of political populism converging with race and racism has converted churches, mosques, and other religious spaces as centers for political organizing and galvanization.
Religion also serves as a mechanism through which racial identity is constructed and a racial hierarchy is maintained.138 Adopting a Christian faith was once a “compelling criterion” for being deemed legally white and eligible to obtain U.S. citizenship.139 Some groups practicing non-Christian religions were aligned with a nonwhite racial identity and barred from obtaining U.S. citizenship.140 Even today, the concept of a “real American” is linked to being white and Christian.141 Religion continues to be used for racial exclusion, serving a racial hierarchy that favors those deemed white; in some cases, religion is the very basis of racial-identity construction.142 Religion is also used as an interchangeable proxy for race in ways that harms groups of color.143 Given this link between religion and race, it is perfectly possible for groups who want to self-segregate into racialized religious groups to do so.144
Pro-voucher skeptics may argue that evidence from existing voucher programs enabling state funds to flow to sectarian schools does not support concerns of racialized religious segregation.145 Empirical research from sectarian schools that receive vouchers shows either a neutral or slightly desegregative effect on racial segregation in schools.146 However, most voucher programs for which data are available are limited by geography and income.147 Removing these limitations may show a more significant impact on school segregation. Indeed, research in the context of scaled-up charter and magnet school-choice programs demonstrate that the race of the students within a school influences the choices parents make when given school choice.148 Given the extent to which religion is racialized, choice programs that include religious schools heighten concerns about racialized religious segregation.
Skeptics may further contend that schools are already racially segregated and that the goal, therefore, should be providing Black and brown students with a quality education, even if it is in a racially homogenous school. However, research shows that students using vouchers to attend private schools, both sectarian and secular, do not fare much better academically than students attending traditional public schools.149 Importantly, a myopic view of education that situates the benefits and costs as being borne only by the individual student misses the important democracy-enhancing functions served by public education in a multiracial democracy. Allowing students to continue to be educated in racially segregated environments harms both American democracy and the economy.150
Finally, pro-voucher skeptics may also point out that public schools have a sordid history of forcing immigrants and those not raced as white to meld into a notion of citizenship that rejects the value of multiculturalism and propagates white cultural norms as American.151 In this vein, public schools have been an assimilationist, white-supremacist vehicle targeting nonwhite immigrants. For many immigrants and nonwhite students, the argument goes, public schooling means learning to think less of their own cultural norms.152 School-choice proponents might contend that allowing students to attend private schools can protect Black and brown students from such harmful forced assimilation.
However, this argument misconstrues the ways in which private religious schools can operate. Rather than serving as sites of tolerance and diversity, private schools have used religion as a basis to require assimilation and to discriminate against characteristics associated with race, such as hair. Private schools can suspend or expel Black students for wearing natural Black hairstyles.153 And some do, appealing to religion and a purported desire to prepare students to succeed in a country that equates professionalism with middle-class white norms.154 Private schools that are predominately Black and run by Black administrators have done the same.155 And private schools, unlike public schools, do not have to follow due-process norms or adhere to antidiscrimination laws. Consequently, private schools may not only fail to provide a safe haven, but they may also reify norms of white supremacy while leaving families with no legal avenue to challenge it as the next Section demonstrates.
B. Doctrinal Limits of Regulating Racialized Religious Segregation
There is no obvious vehicle for challenging a dual form of segregation occurring along the lines of race and religion. As other scholars have noted, antidiscrimination jurisprudence employs a “single-axis” analytical approach, which requires a plaintiff to demonstrate unlawful discrimination based on a single characteristic, not multiple characteristics that produce a distinct form of segregation.156 While scholars make compelling arguments regarding the viability of religion-related equal-protection claims,157 the doctrinal path to successfully stating an equal-protection claim based on religion is fraught with challenges. The best path to successfully challenge racialized religious segregation would be demonstrating that the state is engaging in unlawful activity based on race under federal antidiscrimination laws158 or based on religion under the First Amendment. Under either approach, plaintiffs would need to show that racialized religious segregation was occurring because students were being excluded from schools because of their race or religion. Attempts to demonstrate either would likely fail.
To begin with, it would be hard to demonstrate state action. Because families rather than the state would choose schools, racialized religious segregation might be linked to private choices rather than state action. Racial or religious patterns resulting from choices made by individuals is outside the remedial purview of the Constitution. The Supreme Court has made this clear in the contexts of both challenges to racial segregation and state establishment of religion in public schools.159
Moreover, even if a plaintiff could demonstrate state action, larger doctrinal obstacles exist. Perhaps the plaintiff could bring a claim that they were being excluded because of their religion under the First Amendment. But although the First Amendment addresses claims of maltreatment due to religion, it primarily addresses government interference or coercion of religion. Students who voluntarily attend a religious school cannot claim to have experienced religious coercion.160 The facts also would not lend themselves to a claim that racialized religious segregation amounted to state interference with religion. Thus, the First Amendment’s Establishment and Free Exercise Clauses, while useful in protecting individual religious freedoms, are less effective for remedying group-based religious exclusion from a school.
Another possibility for challenging racialized religious segregation on the grounds of religion would be on equal-protection grounds—that the plaintiff was being treated disparately because of their religion. But the Supreme Court has not explicitly recognized religion as a classification subject to strict scrutiny under the Equal Protection Clause,161 and in practice, the Court has combined Equal Protection Clause language and frameworks with classifications pertaining to religion, making it unclear exactly what an equal-protection analysis might entail.162 Putting this question aside, the First Amendment could pose a barrier to a successful equal-protection claim. Private religious schools could persuasively argue that requiring them to admit students of a religion outside of the expressed religion of the school interferes with their own ability to practice religion as they see fit, violating the Free Exercise Clause. The Free Exercise Clause concerns are particularly pertinent given the Supreme Court’s prior statements about private religious schools furthering religious ideology as a core part of their mission.163 For these reasons, challenging racialized religious segregation on religious grounds is unlikely to be successful.
A race-based antidiscrimination claim would be similarly specious. Proving racial discrimination in violation of federal antidiscrimination laws requires exacting proof of intent to discriminate or segregate because of race.164 As religion and race are so intertwined, any school facing a challenge could reasonably argue that homogenous demographics stemmed from disparate demographics in religious preference rather than any intent to exclude on the basis of race. This defense would likely succeed. Courts have declined to find intent to discriminate on the basis of race when the discrimination was expressly done because of an individual’s religion or faith.165
The doctrinal limitations of addressing racialized religious segregation stem from the hybrid nature of the segregation; a defendant school or State could always appeal to religion to defend against charges of race discrimination. It is akin to the interaction between geography and race that creates racially segregated schools. Even though geography was racialized by state action, geography is permitted to serve as a race-neutral mechanism for maintaining racial segregation in schools.166 The same phenomenon may play out with religion, effectuating what Reva B. Siegel calls “preservation-through-transformation”: “a new cluster of rules and rhetorics . . . [that] enforces social stratification by means that change over time.”167 It could also perpetuate what I have previously called “second-order social closure”: “race-neutral methods and institutional arrangements that have the same impact as the race-conscious de jure laws,” serving to maintain racialized status-based hierarchies.168 As the final Part describes, racialized religious school segregation would cause immeasurable harms to America’s fragile multiracial democracy.
IV. racialized religious segregation and american democracy
American democracy is under attack. Though the attacks are multifaceted,169 one of the largest threats is the rise of racial and religious balkanization. The Court’s decision in Carson may significantly exacerbate the balkanization. As Justice Breyer noted, allowing religion into the public-school system increases the risk of social strife and division.170 Proliferation of school choice that creates racialized religious segregation will result in students being siloed, unexposed to the diverse array of persons that inhabit America. The net result will be a decrease in social solidarity and cohesion, elevating risks of internal upheaval and violence. Violence resulting from the insurrection at the Capitol,171 attempts to prohibit teaching about the history of race and discrimination in America,172 and the protests over extrajudicial killings of Black people by the police173 epitomize the dangers of existing balkanization. The insurrection at the Capitol wherein the participants made explicit calls to Christian nationalism presages how adding religion to the layers of balkanization could endanger America’s democracy.174
Further, school-choice supporters promise that school choice will produce a return on investment that traditional public schools cannot. The return on investment, however, occurs only when education is situated as a positional good, meaning its value is not inherent or static but depends on the value or use others derive from it.175 Allowing school choice to be contoured by religion and race opens up the possibility for the dominant racialized religion to be used as a sorting metric that enhances the relative value of some students’ education while devaluing the education of others. Put another way, certain kinds of religious education could become sought-after status markers that are unavailable to those who are not part of the dominant race or religion. This threat is ever present given the ways in which choice is operationalized in America to allow those with higher status and privilege to use choice as a stratification mechanism.176 The practical effect would be creating opportunity gaps that worsen the already rising racial and economic inequality that currently threatens America’s democracy.177
Finally, the proliferation of school choice along the lines of race and religion engenders a myopic concept of citizenship that undermines America’s multiracial, pluralistic democracy. Public education in a diverse democracy is supposed to allow for intergroup contact that facilitates empathy, understanding, and cohesion amongst all citizens. Situating students in schools delineated by race and religion impedes that kind of intergroup contact. It enables students to see themselves through the lens of “them” and “us,” which can easily morph into “worthy” and “unworthy.” This dynamic is reflected in the growing movement of white Christian nationalism.178 The movement uses religion to advance racial interests centered around making America a white Christian country. The ethos turns into legislative efforts to restrict political, economic, and social participation under the guise that only certain people are worthy enough to fully participate in civic life or call themselves Americans.179 Public schools are supposed to stamp out this kind of tribalism, laying the groundwork for universal citizenship of all persons. Racialized religious segregation in schools could instead solidify tribalism and crystallize myopic views of citizenship in ways that pose an existentialist threat to America’s already fragile multiracial democracy.
The Supreme Court’s decision in Carson could open the door to a proliferation of religious schools participating in school-choice programs. Public schools are already undoubtedly highly racially segregated in ways that also threaten the stability and future of America’s burgeoning multiracial democracy. Adding private religious or religious charter schools to an already fragmented landscape will increase the likelihood of balkanizing the American landscape in ways that would be difficult to address as a matter of law. In a world of limited resources, more efforts should be spent on racially integrating public schools to fortify America’s burgeoning multiracial democracy.
Professor of Law, Thomas Willis Lambeth Distinguished Chair in Public Policy, and Wade Edwards Distinguished Scholar at the University of North Carolina School of Law. Many thanks to Khaled Beydoun, Janel George, and Osamudia James for their thoughtful feedback on earlier versions of this piece. Thanks also to the editors of the Yale Law Journal Forum for terrific editorial assistance. Any errors or omissions are my own.