The Yale Law Journal


When Religion and the Public-Education Mission Collide

17 Nov 2022

abstract. The Supreme Court has chosen education as a primary stomping ground for rewriting Free Exercise Clause doctrine. Two decades ago, a divided Court gave states the option to fund religious education. Recent cases invert that analysis. Now a solid majority mandates that states fund religious schools any time they fund other private schools. State efforts to prevent public funds from promoting religious indoctrination are purportedly no different than other forms discrimination. Close analysis further suggests that the Court is implicitly affording superstatus to religious interests and dismissing long-standing important state interests. As a result, its new doctrines will wreak havoc across a number of education policies and daily school practices. The victim will be educational equity and adequacy for traditionally disadvantaged students.


The Supreme Court in Carson v. Makin1 declared unconstitutional Maine’s attempt to ensure that rural students without access to a local public high school could receive a private secular education. The decision, while unsurprising, is astounding. The lack of surprise sadly speaks to how unabashedly and consistently this Court has been willing to capsize conventional wisdom and precedent in recent years.2 Once the Court held in Trinity Lutheran v. Comer in 2017 that Missouri had to open its playground-subsidy program to a religious organization,3 the astute observer—or cynic—could see the writing on the wall.4 The Court was picking low-hanging fruit along a path to rewrite its jurisprudence on religion. So it was no surprise that the Court, five years later in Carson, would not care about Maine’s intent to avoid funding the inherently religious endeavors of proselytization and indoctrination—particularly in the context of Maine’s state-constitutional duty to provide all students a publicly funded education.5

Yet Carson comes with an added touch of irony. The Court has justified its shifting religion jurisprudence in the name of equity. The Court thus puts itself on the side of angels by claiming that it is stopping “odious” “discrimination.”6 Ever since Trinity Lutheran, including in Carson, the Court has coopted the language of sex and race discrimination, suggesting that preventing individuals from using public money on religious activities is little different than denying individuals the right to participate in programs based on the color of their skin or their sex. Religious exclusions, the argument goes, mirror race or sex discrimination because they deny an “otherwise”-qualified religious individual or organization access to a “generally available” benefit.7

Using education as the stomping grounds for vindicating supposed religious oppression—rather than recognizing that education is its own special case as the Court traditionally had done8—works its own cruel irony because public education is saddled with so many other obvious and pressing inequities and inadequacies.9 The Court has not only shown relatively little interest in those shortcomings, but it is also now likely to make matters worse. Public education is under normative and fiscal attack.10 Culture wars on race, gender, and politics are beating on the schoolhouse door and eroding faith in a fundamental pillar of our democracy.11 The public-education system, meanwhile, has been bleeding resources since the Great Recession.12

Private-school tuition subsidies will not resolve any of these problems. History reveals that these subsidies originally grew out of racism.13 Though much has changed, the private-school sector remains disproportionately white14 and resistant to diversity, equity, and inclusion—especially for LGBTQ youth.15 The Court’s opinion in Carson only throws fuel on the fire of this privatization movement, blessing an additional constituent for private-school funding and laying down a doctrine that will invite even more aggressive and dangerous free-exercise claims. The theory underlying Carson does not end with mandatory access to private-tuition subsidies. It extends all the way to public-school coffers, insisting that reserving public funds for the exclusive use of public schools discriminates against religion.16 This radical theory has absolutely no grounding in current law,17 but five years ago, neither did the principle just announced in Carson.

States, to be clear, are not entirely without recourse or blame. They could eliminate vouchers altogether. That would be the wise choice.18 Political trends, however, make that choice highly unlikely in those states already committed to vouchers.19 The issue now is whether those states will ensure some level of equity in their private-school voucher programs. They cannot exclude religious schools from these voucher programs by using the grey area between the Establishment and Free Exercise Clauses—Carson effectively eliminated that “play in the joints.”20 Instead, states can still adopt religiously neutral criteria that will indirectly exclude religious and other institutions that refuse to conform to or meet those criteria. Getting states to accept the hard work of defining and enforcing such criteria, however, will be an uphill battle. They are, after all, the ones that have sought a free market without many state-imposed conditions. But for those who would, Carson flashes as a red warning sign.

This Essay proceeds in four Parts. Part I explains Carson’s holding and rationale, then analyzes what Carson changed and took away. Part II explores the burden that Carson now places on public schools and education policymakers, focusing on the narrow discretion the Court affords them in dealing with issues of religion. Part III argues that Carson elevates religious interests over those of educational equity and adequacy for three reasons: First, vouchers and private schools are historically intertwined with resistance to school integration—a legacy that persists in certain respects today. Second, current evidence indicates that private schools, including ones receiving vouchers, are not open to all students and sometimes actively exclude LGBTQ families in particular. Carson only further complicates policy solutions to these equity problems. Third, Carson opens the door to additional voucher growth and the corresponding inequities that are destabilizing public education itself. Part IV briefly reflects on the Court’s increasing willingness to find and vindicate religious discrimination—but not other forms of discrimination—and what it means for the future of antidiscrimination.

I. oversimplifying the complex

A. Religious Discrimination Despite the Facts

The education program at issue in Carson was not a typical voucher program but rather a unique response to Maine’s geography. Many areas of the state are so sparsely populated that operating a public high school is either infeasible or economically inefficient.21 Indeed, more than half of Maine’s school districts do not operate a public high school.22 Maine’s constitution and implementing statutes, however, require the state to deliver public education to all students, regardless of where they live.23 As a practical compromise, Maine has long operated a program whereby local districts can ensure access to education through alternative means. Local districts can (a) contract with a nearby public or private school to receive their students or (b) pay tuition at the public or private school that individual families select.24 The aim was ensuring access to opportunities that are equivalent to the public education that students would otherwise receive in their district.25

In 1981, however, the Maine legislature amended the provision to prohibit districts from contracting with or paying tuition to “sectarian” schools.26 The stated purpose of the exclusion was to ensure students received a secular education equivalent to a public education, not to discriminate against religion.27 Maine did not preclude all religiously affiliated schools from participating in the program. In fact, some religiously affiliated schools have participated.28 “Affiliation or association with a church or religious institution is [but] one potential indicator of a sectarian school” and “not dispositive.”29 Rather, Maine’s primary inquiry was “what the school teaches” and how it presents material.30 It excluded only those schools that used public money for the “religious purposes of inculcation and proselytization.”31

The Carson plaintiffs alleged that the state’s refusal to fund tuition at their sectarian schools infringed on their rights under the Free Exercise Clause of the First Amendment.32 The First Circuit Court of Appeals rejected the claim, finding that Maine’s policy legitimately attempted to avoid using public money for the proselytization and inculcation of religion.33 Supreme Court precedent, the First Circuit wrote, clearly distinguished between “discrimination . . . based on the recipient’s [religious] affiliation” and “discrimination . . . based on the religious use to which the recipient would put” government aid;34 because religious schools could participate in the program so long as they provided a secular education to students, the program was a use restriction rather than status-based religious discrimination.35

The Supreme Court viewed the facts and law much differently. According to the Court, Maine’s policy was clearly unconstitutional based on the Court’s recent holdings in Trinity Lutheran Church of Columbia, Inc. v. Comer36 and Espinoza v. Montana Department of Revenue.37 Trinity Lutheran involved a Missouri state program that subsidized the cost of resurfacing playgrounds at nonprofit organizations with recycled rubber.38 Trinity Lutheran, a religiously affiliated daycare center, applied for funds to resurface its playground, but the state agency rejected its application based on its religious status.39 The state intended to ensure a separation of church and state,40 but the Court in Trinity Lutheran recharacterized the policy as discrimination that “target[s] the religious for ‘special disabilities’ based on their ‘religious status.’”41 All Trinity Lutheran was requesting, in the Court’s estimation, was the right “to compete” equally with everyone else for a benefit it was otherwise qualified to receive.42 Missouri’s denial, the Court held, violated the Free Exercise Clause. But had the state precluded applicants from putting the money to “religious use” rather than excluding them altogether based on status, Chief Justice Roberts hinted, the result might have been different.43

Three years later in Espinoza v. Montana Department of Revenue, the Court applied Trinity Lutheran’s status-based-exclusion rule to a Montana program that subsidized private-school tuition.44 Based on a state constitutional provision that prohibited the use of government aid to religious schools, Montana extended those subsidies only to students attending secular schools.45 Montana argued its policy was substantively distinct from the one at issue in Trinity Lutheran. In Montana’s view, its exclusion was not status-based discrimination that gave a benefit to one group of persons while denying the same benefit to religious persons. Rather, the exclusion was an attempt to limit how public funds were used.46 Any student, regardless of their religious beliefs, was eligible to use the funds to attend private school.47 They just couldn’t use state funds for religious instruction.48

The Court, however, found no difference between Montana’s exclusion and that of Missouri in Trinity Lutheran: “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools.”49 While Montana theoretically may have tried to limit how public funds were used, the actual policy did “not zero in on any particular ‘essentially religious’ course of instruction at a religious school.”50 Instead, the policy “hinged solely on religious status.”51 The Court concluded that “[s]tatus-based discrimination remains status based” and therefore unconstitutional “even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.”52

The Court in Carson found that Maine was doing exactly the same thing as the states in Trinity Lutheran and Espinoza—discriminating against religious schools “solely because of their religious character.”53 In the Court’s framing, Maine had extended a “generally available” benefit—tuition payments—to all students in districts without a public high school, and the state statute did not condition that benefit on students receiving any particular type of education.54 Its requirement that the schools be “nonsectarian,” the Court reasoned, was simply status-based discrimination, not a requirement of a particular type of education.55

The notion that Maine was ensuring access to the equivalent of a free public education through this “nonsectarian” provision56 did not help the state, either. Maine’s program, the Court emphasized, funded private education, not public education, and the state did not require that the education those private schools provided be the equivalent of public education.57 Private schools could effectively teach whatever they wanted so long as their status was nonsectarian.

Had the Court stopped there, its opinion may have carried relatively little import. One could contest the Court’s reading of the facts, but having found what it deemed status-based discrimination, the Court could have simply resolved the case with the rule of Espinoza. The Court in Carson, however, went further to rule out the notion that that “religious use” limitations might be permissible under some other set of facts. “That premise,” the Court wrote, “misreads our precedents.”58 The Court reasoned that a school’s religious status and its religious activities are inextricably linked, both in theory and practice.59 Thus, in the Court’s view, use-based restrictions are not “any less offensive to the Free Exercise Clause” than status-based exclusions.60

B. Dismissing the Distinction Between Status and Use

Notwithstanding the Court’s claims to the contrary, a lot was at stake doctrinally and practically in Carson. The Court did not simply apply Espinoza to an idiosyncratic Maine program. If Carson appears pedantic on its face, it is only because the Court has so consistently sided with religious interests over state interests that the result felt like a foregone conclusion. Recognizing as much, states have hesitated to rely on yesterday’s precedent because they are confident it will be gone tomorrow61—and they are wise to do so. Carson confirms that the policy grounds on which states can safely exercise their discretion are narrow. And in a world in which private-education programs and partnerships are rapidly expanding,62 the risks of violating the Free Exercise Clause lurk in the corners of nearly every policy decision.

Any explicit attempt to separate church and state is almost sure to draw a free-exercise challenge.63 Free-exercise plaintiffs’ high rate of success in recent Supreme Court cases all but incentivizes such challenges.64 Free-exercise advocates are so emboldened that they are challenging facially neutral provisions that do not even target religion but simply exclude religious schools along with all other private schools from public funds.65

Most importantly, Carson eliminated the distinction between use- and status-based restrictions. That distinction would have provided states a clear rule to eliminate directly and transparently the possibility that taxpayer dollars—dollars raised under the auspices of providing public education—would be used for religious instruction, indoctrination, and proselytization. Without a rule like this, maintaining the boundary will be challenging, sufficiently so that many states and districts will likely forego trying.66 The Court’s suggestion that it did not break with precedent and that those who think otherwise misunderstood precedent is cavalier.

While no prior Court decision had explicitly upheld use-based limitations as constitutional, the Court had clearly recognized that a distinction between use and status limitations exists and could be significant. Chief Justice Roberts, who authored the majority opinions in both Trinity Lutheran and Espinoza, took care to note in Trinity Lutheran that the “case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”67 Responding in concurrence to those two lines, Justice Gorsuch, joined by Justice Thomas, argued that no meaningful distinction exists between religious-status and religious-use exclusions.68 Even if this distinction could be drawn in theory, they urged the Court to reject it.69

Precedent prior to Trinity Lutheran, though not using the phrase “use,” also strongly supported the distinction. Most notably, Locke v. Davey had held in 2004 that a state could decide, without running afoul of the Free Exercise Clause, “not to fund a distinct category of [religious] instruction.”70 There, Washington State extended college scholarships to high-achieving students; those who attended religious schools could receive a scholarship as long as they did not pursue degrees in “devotional theology.”71 The Court affirmed the state’s substantial interest in refusing to fund what was effectively preparation to become a minister.72

In Espinoza, the Court explicitly raised the issue of use restrictions again. Chief Justice Roberts wrote for the majority that Montana’s voucher-program restrictions amounted to status-based discrimination, so he reserved the religious-use question, just as he had in Trinity Lutheran.73 In his concurrence, Justice Gorsuch responded even more forcefully to this reservation. He allowed that the most natural interpretation of Montana’s policy—and one that the evidence supported—was that Montana was attempting to limit the use of public money for religious instruction rather than discriminating solely based on religious status.74 However, for Gorsuch, his disagreement with Roberts on this issue only proved his own point that both types of restrictions worked the same harm on the free exercise of religion.75 Thus, the Court should reject use restrictions just as it rejected status-based restrictions.76

The dissenters in Espinoza ironically agreed that the line between use and status was thin, but they arrived at the opposite constitutional conclusion as Justice Gorsuch. Because they believed use restrictions like those in Locke were plainly permissible, they reasoned that so, too, must be status restrictions that are designed to achieve the same end.77 Chief Justice Roberts may have disagreed with that notion, but the fact that he nonetheless twice reserved use restrictions and resisted calls to overturn Locke strongly suggested that he, along with a majority of the Court, might very well have upheld certain use restrictions. So, while Carson did not explicitly reverse any precedent, it invalidated a distinction that prior cases indicated was important. Indeed, the lower court in Carson had rested its decision on the very notion that use restrictions were constitutional.78

Use restrictions marked the line between discriminating against an entity because of who it is and setting the terms on which any entity can participate in a public program. While policing that line to ensure use restrictions are not proxies for religious discrimination may be difficult in some instances, use restrictions are not the same as status-based religious discrimination any more than a school rule against handing out candy canes is the same as discrimination against Santa Claus. Schools have entirely legitimate nutritional reasons—as well as sticky hands and scattered sugar flakes—to prohibit candy canes. We would second-guess such a rule only if the facts indicate some malevolent agenda underlies the health explanation. The same rationale should have been followed in Carson: we (and the Court) should have second-guessed Maine’s policy only if the facts indicated invidious discrimination. Now, rather than directly and transparently prohibiting religious activity and indoctrination that are at odds with public goals—and were recognized as such by no less than Thomas Jefferson and James Madison as early as the 1770s79—states must search for other, indirect means to protect the sanctity of their programs lest they be labelled as religious discriminators.

C. Eliminating the “Play in the Joints”

Beyond taking away use restrictions, Carson also added to a consistently expanding approach to the Free Exercise Clause that has substantially shrunk the “play between the joints”80 of the Free Exercise Clause and Establishment Clause. The Court had long recognized that this play between the joints is necessary81 because the Clauses, if taken to their logical extremes, clash with one another.82 An expansive or absolutist view of the Establishment Clause might find that releasing students from study hall to do their Friday-morning prayers unconstitutionally furthers religion,83 while an expansive view of the Free Exercise Clause might find that refusing to excuse those same students from study hall violates their free-exercise rights.84

The Clauses cannot peacefully coexist if the Court applies a robust concept of both—and nothing in the text of the First Amendment suggests that either Clause should dominate the other.85 Allowing for play in the joints between the Clauses resolves the problem by acknowledging that the bounds of the Clauses’ protections and prohibitions do not start and stop at the same place. Rather, a zone of permissible activity exists between the two: “a State [can] further antiestablishment interests by withholding aid from religious institutions [or religious accommodations for individual people] without violating the Constitution’s protections for the free exercise of religion.”86 The inverse is true, too: a state can make reasonable religious accommodations for individuals without violating the Establishment Clause.87

In Espinoza and Carson, the States argued they were trying to steer clear of any Establishment Clause violation by limiting the benefits to secular education.88 Their position made sense given that, at least until 2002, conventional wisdom indicated that governments violated the Establishment Clause when they cut checks for religious education.89 In Zelman v. Simmons-Harris, the Court recognized a significant exception to the general rule, announcing that a different analysis applies when families rather than governments direct the funds to the religious schools.90 But the Court did not hold that states could freely fund religious education in any way they wanted or that the Free Exercise Clause demands that government provide religious schools access to public funds.91

Zelman, however, is just one of many recent cases in which the Court has shrunk the scope of the Establishment Clause.92 The Court has, at the same time, used that shrinking scope to justify expanding the Free Exercise Clause, reasoning that a state’s desire to prevent Establishment Clause violations is no defense to a Free Exercise Clause claim unless the state is preventing an actual violation of the Establishment Clause.93 The practical effect of this approach, lamented the dissents in Carson, is to eliminate the “play in the joints” between the Establishment and Free Exercise Clauses.94 The Clauses are now “joined at the hip,” leaving states very little (if any) discretion when dealing with issues of religion.95 Any policy explicitly involving religion seriously risks violating one Clause or the other.

II. public education’s new burden

Precluding use restrictions and shrinking the play in the joints create serious implications for education in particular. Many people of religious faith believe their way of life is under assault and that government itself is marginalizing religion to the point where it has no place left in public life.96 The anxieties this perception creates, though not caused by schools, often play out in schools.97 And when they do, they have a tendency to make their way to the Supreme Court. The Court’s recent free-exercise decisions, rather than achieving balance, are increasing the likelihood of even more aggressive claims against public education. Navigating these recent decisions and the new cases they might spark will also impose new burdens on schools—a result that the Court, until now, has insisted it should avoid.

A. Inviting Challenges to Public Education Itself

As Justin Driver astutely concludes, “[P]ublic school[s] ha[ve] served as the single most significant site of constitutional interpretation within the nation’s history.”98 Schools, more than any other institution, capture the “nation’s cultural imagination,” reflect its “social concerns,” and “illuminate[] both the hopes and the fears” of the people.99 So it is in the school that the country so often wages war over its most sensitive and controversial issues.100 And the Court is particularly apt to engage the controversies. True to history, four of the Court’s last six major free-exercise cases have involved education.101 All have swung in favor of those asserting free exercise of religion with the Court painting religion as the victim of overzealous state policy.

Cases of a similar sort will surely follow. School-choice advocates, even before Carson, expressed their intent to extend Espinoza’s logic to other school policies.102 The most immediate targets are state laws that preclude religious entities from operating charter schools.103 School-choice advocates’ holy grail, however, is to delegitimize public education itself, particularly in states that lack subsidies for private-school tuition. School-choice advocates argue that tax-supported public schooling coerces families to accept a learning environment that indoctrinates their children with ideas hostile to their own; thus, families have an affirmative right to government resources to support their private-school choices.104

A few years ago, these claims would have sounded silly. Not a shred of constitutional doctrine supported them. No court had hinted that states should open themselves to religious charter schools. To the contrary, lower courts relied on the Establishment Clause to ensure secular charter schools did not unconstitutionally advance religion.105 The claim that a state’s exclusive support for free public education is unconstitutional would have sounded even stranger. State constitutions mandating that states establish and support public schools date back to the Founding in several instances and were ubiquitous by the 1860s.106 And over the last century, the Court has repeatedly emphasized the centrality of public education to the nation’s democratic project and individuals’ chances in life.107

In Brown v. Board of Education, the Court famously wrote:

[E]ducation is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.108

Even in Pierce v. Society of Sisters, a case in which the Court upheld families’ right to opt out of public education at their own expense, the Court recognized the legitimacy and primacy of the state’s interest in education. Though a state may not be able to compel public-school attendance and thereby preclude private schools, “[n]o question is raised concerning the power of the State reasonably to regulate [private] schools” in all respects, including to ensure that “certain studies plainly essential to good citizenship [are] taught, and that nothing be taught which is manifestly inimical to the public welfare.”109 In short, a long list of historical practices and judicial precedents indicated that the Free Exercise Clause does not meaningfully affect the state’s authority to operate public schools.110

Yet Carson is, as one of the dissenters recognized, a capstone in a growing list of cases that caution against taking precedent and conventional wisdom for granted.111 Through most of the 1990s, the Court was clear that government should not fund religious instruction or provide direct aid to religious schools.112 In the 2000s, the Court dramatically eroded and reversed those positions. Most notably, the Court in Zelman v. Simmons-Harris upheld an Ohio program that paid for students’ tuition at private schools, including religious schools.113 While the tuition funds could be used at any private school, eighty-two percent of participating schools were religious, and ninety-six percent of participating students were enrolled in religious schools.114 Evidence also indicated that these numbers did not reflect families’ personal religious convictions. Two-thirds of families who used the vouchers to send their children to religious schools indicated that they “did not embrace the religion of those schools” but that the religious school was the only or best option available to them.115

Notwithstanding the possibility that the Ohio program incentivized attendance at a religious school, the Court found the program constitutional under the notion that the state was only indirectly funding education. Students arrived at a religious school not due to the state’s choice but as a result of the “independent choices of private individuals.”116 Carson and Espinoza now hold not only that a state may fund private religious schools through programs like those in Zelman but also that those programs must fund religious schools.117 In other words, what was once constitutionally prohibited is now constitutionally required. The Court’s school-prayer precedent has followed a similar trajectory. The Court had consistently held that prayers led, directed, or facilitated by state officials were unconstitutional,118 but in 2022, the Court held that the Constitution required a school district to permit a football coach to initiate and lead his student-athletes in prayer.119

These cases would defend states seeking to deepen their relationships with and financial support of religion while rebuking those aiming to avoid the appearance of favoring or coercing religion. Embedded in these cases is the notion that religion has become the victim of discrimination and overzealous secularism.120 Thus, no matter how unsupported today’s free-exercise charges against charter-school and public-education policy may be, the Court’s new perspective portends a tomorrow in which it is sympathetic to these charges.

B. Complicating Everyday Policy and Practices

The drastic shift in the Court’s Religion Clauses doctrines is important not just because of the radical transformation it could signal for wide-reaching education policies but also because of its potential consequences for the everyday problems that arise in schools. What of a parent’s challenge to the reading list that has only secular books?121 What of the church that wants to run the after-school childcare program at the public school? What of the church organization that wants to hand out Bibles at school or make its books available for purchase at the book fair?122 What of the student who refuses to read an assigned book that includes LGBTQ characters or comply with the school’s antiharassment policies?123

Carson makes clear that a state’s ability to disentangle itself from religion and religious controversy has substantially narrowed in these situations: A state may have real and pressing concerns about funding religious institutions or instruction or about indirectly incentivizing students to engage in religious activities, but the Court now treats school policies that explicitly attempt to police the boundaries of religion as automatically suspect.124 According to Carson, efforts to limit the use of public resources for religious activity are the same as drawing a religious-status distinction: both are discrimination.125 This approach suggests it is no longer enough for schools to avoid policies that actively interfere with religion; they must actively accommodate religion, not just as a matter of discretion but also as a matter of the private actor’s religious entitlement.126

None of this is to say states and schools are without any options when navigating these situations. But they now bear a substantial burden to avoid situations in which religion dictates the terms of schools’ engagement with private actors. Public schools cannot easily pursue their own ends—even if those ends have nothing to do with religion—without considering the potential religious repercussions. Their policies and positions will have to be finely tuned, often by attorneys rather than educators. The burden is high enough that a school might understandably decide to simply not offer certain opportunities at all. Why run the book fair if it will inevitably devolve into a fight over religion? Why rely on the private sector for help with school services if it will bring religious influences into the school environment? Why craft narrow policies to address narrow problems, as with Maine’s subsidies for rural high-school students, if it will force funding of religious instruction? For those schools that feel they must still provide these opportunities, one could maybe forgive them for throwing up their hands in disgust, dropping any pretense of rules and regulations, and letting the chips fall where they may. Something, they might calculate, is better than nothing, even if the state cannot control what the something will become.

C. Ironically Disregarding Educational Burdens

The irony of schools’ new situation is that conservative Justices have traditionally expressed outrage when the Court has constitutionalized standards that impose administrative burdens on schools or interfere with policy decisions. Those burdens, they have urged, detract from the educational opportunities that schools provide, not enhance them. Take, for example, due process for school suspensions. In Goss v. Lopez, the dissent complained that applying due process to suspensions “would interfere more extensively in the daily functioning of schools” than almost any other ruling it could imagine.127 Given the number of discipline problems that arise, “school authorities would have time to do little else” other than hold hearings.128 But the process does not end in the schoolhouse, the dissent argued. Rather, the result is an “indiscriminate reliance upon the judiciary, and the adversary process, as the means of resolving many of the most routine problems arising in the classroom.”129

So incensed by the burden, two years later, those dissenters became the majority in Ingraham v. Wright and refused to apply Goss’s informal hearings to corporal punishment. The Court reasoned that corporal punishment was well rooted in historical practice and that applying “a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure.”130 Similarly, in San Antonio v. Rodriguez, the majority infamously refused to address gross funding disparities because “this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels” on matters of education policy.131

This Essay does not suggest that due-process protections or any other constitutional requirements are inappropriate in schools; rather it argues that the Court has regularly afforded those burdens substantial weight, sometimes even to the detriment of students’ rights. While the conservative Justices may have been the most concerned about administrative burdens, all members of the Court tend to take those concerns seriously—even if they weigh them differently. Administrative burden explains why the majority in Goss insisted that formal due process was unnecessary; the disciplinarian would typically only need to “informally discuss the alleged misconduct with the student” prior to making a suspension decision.132

The majority in Carson, however, expressed no sympathy for the challenges the state faced in ensuring access to constitutionally mandated education nor any sympathy for what it would take to transform Maine’s program into one that still served the state’s interests. The Court’s silence on these matters is all the more striking given that the supposed burden on students in Carson was, it would seem, minimal. Goss involved a complete exclusion from school for weeks and a permanent stain on students’ records;133 in Carson, by contrast, the state was paying for students’ tuition at a private school of their choice so long as the instruction delivered therein met the state’s standards.134 For the past half century and across a variety of constitutional rights, the Court’s precedents have generally required—or at least relied on—a substantial invasion of students’ rights to justify invalidating a state law.135

In balancing the gravity of the private interest at stake against those of the state, the Court in Carson would have been wise to recall the vigorous debate from Goss before crossing a new doctrinal bridge. The Goss dissent, even if wrong on its final doctrinal conclusion, cautioned:

No one can foresee the ultimate frontiers of the new “thicket” the Court now enters. Today’s ruling appears to sweep within the protected interest in education a multitude of discretionary decisions in the educational process. Teachers and other school authorities are required to make many decisions that may have serious consequences for the pupil . . . . In these . . . situations, claims of impairment of one’s educational entitlement identical in principle to those before the Court today can be asserted with equal or greater justification . . . . [The final result will be that] the discretion and Judgment of federal courts across the land often will be substituted for that of the 50 state legislatures, the 14,000 school boards, and the 2,000,000 teachers who heretofore have been responsible for the administration of the American public school system.136

In sum, rather than simply fielding cultural and religious disputes that inevitably land on its docket, this Court has increasingly invited them by taking an ever-expanding view of the Free Exercise Clause. As a result, it has put public schools and public-education policy on defense across multiple fronts, big and small, and made schools’ basic work more difficult. While interfering with the work of public education was once anathema to the Court, it is now par for the course, at least in matters of religion.

III. religion over equity

The ultimate travesty of Carson, however, is not administrative burden or practical uncertainties. It is the collision course the Court has set between equal educational opportunity and religion. Equal educational opportunity traditionally meant ensuring access and resources for traditional victims of discrimination—racial and ethnic minorities, low-income students, women, students with disabilities, and LGBTQ students. The Court purports to have done little more than add religion to this list of disadvantaged students. But that notion assumes a blank slate on which all of those identities are equal when, in fact, the playing field is already slanted against traditional victims of discrimination and towards religion. The broader context suggests Carson just handed religion an advantage in an escalating contest over public-education resources and antidiscrimination protections.

Over the past decade or so, publicly financed private-education programs have steadily depleted scarce resources from public schools.137 Even worse, these programs are often unconcerned with or intentionally hostile to the equity values that normally guide publicly financed education programs.138 For some families, that is the draw. The Carson decision now ensures that a new and potentially larger constituency will demand more of those funds and assert free-exercise challenges to resist governmental regulation when they receive them.

States can and should avoid these stability and equity problems by eliminating their voucher programs. But that solution, which the Court in Carson seems to raise to absolve itself of the harmful effects of its decision,139 disregards the status quo. The ship has already sailed. Roughly two-thirds of states already operate programs offering public financing for private education in some form,140 and at least some of those programs rested on the promise that they would not fund religious instruction.141 While states could refrain from funding vouchers for students who are not already in the system, taking benefits away from current recipients before they finish their education is highly unlikely if not unfair. Even voucher opponents would hesitate to support a policy that would abruptly and involuntarily force students out of their current educational environments.142

The more realistic prospect is that voucher programs will grow even more now that the Court has fully legitimized and required funding for religious education. The constituents who previously may have seen these programs as beyond their reach now have every reason to join forces with other private schools for the expansion and liberalization of the programs. And whether their growth and liberalization fund secular or religious schools, history strongly suggests that these programs will retract rather than expand equal opportunity.

A. A Sector Predicated on and Resistant to Equity

The first voucher programs in the country emerged in direct response to public-school desegregation.143 For example, when courts forced states to integrate schools, Virginia took the position that it was better to close integrated public schools altogether and pay for students to attend private schools, which would presumably remain segregated.144 In Griffin v. Prince Edward County, the Supreme Court declared this scheme unconstitutional.145 Reaching that conclusion, however, was difficult.

The Court indicated it had no direct authority to compel states to operate public schools or refrain from closing them as a general matter.146 Instead, the Court’s decision rested on much narrower grounds: “Virginia law, as here applied, unquestionably treats the school children of Prince Edward differently from the way it treats the school children of all other Virginia counties. Prince Edward children must go to a private school or none at all; all other Virginia children can go to public schools.”147 While this scheme alone would not have been unconstitutional in the Court’s view, the unequal opportunity combined with an obvious racially discriminatory motive crossed the constitutional threshold.148

The decision in Griffin effectively killed the voucher movement for decades.149 Core voucher supporters had predicted that the movement would gain traction among the Black community, but history proved them wrong. Since racism was the only motivation for the voucher policy and that motivation was unconstitutional, Black consumers saw no legitimate reasons to buy into the scheme. In fact, African American students went without education in Prince Edward County from 1959 to 1963 rather than accept the offer of setting up private Black schools.150 Vouchers resurfaced on a small scale in the 1990s for religious and sometimes purportedly equal-opportunity reasons, but the voucher movement still had not gained the traction its supporters had assumed it would.151

As for white families, many were determined to leave the public schools during desegregation—with or without a voucher. A number of private schools—often called “white academies”—flourished as they opened or expanded to receive those families.152 Admittedly, those schools and their patron families’ motivations for attending them are more diverse today, but the private-school sector remains overwhelmingly white, a stark contrast to the public-school sector. White families are more than twice as likely to enroll in private school as Black families.153 As of 2015, white students made up sixty-nine percent of private-school enrollment but less than half of public-school enrollment.154

The other demographic reality is that the private-school sector is heavily religious. Nearly seventy percent of private schools are religiously affiliated, and seventy-eight percent of private-school students are enrolled in those private schools.155 While many religiously affiliated schools tolerate—and sometimes welcome—nontraditional students, too many do not. Some are apparently becoming less welcoming, serving as twenty-first century cultural-flight havens. As public schools have become more accepting in terms how they teach and treat students,156 some private schools are becoming less inclusive, particularly regarding LGBTQ students. In North Carolina, Florida, and Indiana, for instance, LGBTQ students and families attempting to enroll at religious schools using vouchers have been turned away.157

The textbooks in some of these schools are also problematic, routinely espousing antiscience and white-centric ideologies. The Orlando Sentinel reported that some Florida voucher schools teach students that dinosaurs and humans lived together, God intervened to prevent Catholics from dominating North America, slavery benefitted its victims by exposing them to Jesus Christ, and most Black and white southerners lived in harmony.158 Other investigative reporting on private-school textbooks revealed similarly disturbing curriculum regarding race, science, religion, and democratic values.159 For instance, “three of the most popular textbook sources used in private schools throughout the US . . . describe slavery as ‘black immigration.’”160

The enrollment and curriculum practices present students of color, LGBTQ students, secular families, and those interested in a diverse and intellectually open environment with a loaded board. These schools may look like excellent opportunities to some families but closed doors to others. That, choice advocates say, is okay because the objective is providing pluralistic educational opportunities.161 The fact that some schools are not for everyone makes them exactly right for some. The objective of public education and, by extension, publicly financed education programs, however, has always been and must continue to be the creation of common ground, not ideological silos.162 That is, the public-school project is built on guaranteeing nondiscrimination, promoting civic virtue, refraining from indoctrination (religious or otherwise), and focusing on values that unite rather than divide; public schools also, quite simply, bring students from racially, economically, and religiously diverse backgrounds together in common experiences.163 Absent that goal, the case for public support of education begins to fall apart.164

B. When Expanding Freedom Shrinks Equity and Adequacy

To be clear, states have largely created these problems for themselves. The rhetoric driving these programs emphasizes educational freedom for all,165 but the facts indicate a real danger that it is educational freedom for only some. States have, for the last decade, hurriedly dumped an expanding pot of money into these private schools166 with little more than a slogan to justify the expansion. Quality standards, antidiscrimination, and effects on public education have too often been an afterthought. One need look no further than America’s intense and sometimes violent polarization to appreciate that at this very moment the country direly needs common ground, even playing fields, and a public-education system designed to deliver those goals, not a further fracturing of public education that sends everyone running for their own corners in the private sector.

Following the Great Recession, vouchers experienced exponential growth.167 Florida, for instance, was previously spending under $100 million a year subsidizing private-school tuition.168 By 2017, it was spending $1 billion a year.169 This year, it will spend $1.3 billion.170 In the early 2000s, Florida was one of only five states operating voucher or voucher-like programs.171 Now, more than half do.172 With state legislators introducing a dizzying number of new voucher and subsidy bills since 2021 alone, all trends point toward even further growth.173 Wisconsin, for instance, has increased its expenditures on vouchers by nearly 700% between 2015 and 2020.174

While these programs are typically touted as giving disadvantaged students the same choice as more financially advantaged students,175 they don’t operate that way. First, a look at the fine print of these bills reveals that although the earliest programs made benefits available only to low-income families,176 states have steadily eliminated or raised those caps.177 In fact, that policy shift alone explains much of the increase in voucher expenditures because the core constituency for vouchers—religiously and conservatively motivated middle-class families178—is now eligible to receive vouchers. Second, while states have increased the dollar amounts of the benefits, tuition costs substantially exceed the value of those benefits at many private schools.179 These voucher programs can lower the cost of attendance for families who may have gone to these schools anyway, but they do not easily open the doors to those schools for the most economically disadvantaged families.180 Third, putting those fiscal issues aside, state laws do not require private schools to accept all voucher students.181 Private schools continue to pick and choose from student applicants based on academic credentials and other factors, such as behavioral history.182

Fourth, states are doing very little to protect students from discrimination in private schools. A 2019 study revealed that fewer than half of states’ voucher and voucher-like programs prohibited race discrimination.183 And the prohibitions that do exist do not necessarily extend protection beyond the enrollment process.184 In other words, while a private school accepting vouchers might be precluded from denying a student admission based on race, few states require fair treatment once the student actually enrolls.185 Fewer than one in four prohibit disability discrimination, and an even smaller sliver of state voucher programs—fewer than one in five—prohibit sex discrimination.186 Only twelve percent protect against sexual-orientation discrimination and only five percent against gender-identity discrimination.187 By contrast, constitutional and federal law precludes all these forms of discrimination in public schools.188

States are apparently pursuing choice for choice’s sake. Schools receiving voucher benefits are practically unaccountable for their educational outcomes. At most, some states require private schools to administer standardized exams, and except for the rarest exceptions, the schools are not meaningfully accountable for those results.189 Florida, for instance, does not require private schools to administer state assessments.190 Louisiana technically does, but the requirement applies only to schools that enroll more than forty voucher students, and the test scores need only exceed the equivalent of an F on the state’s scoring system.191 Unsurprisingly, studies increasingly show that student performance dips rather than increases when students enroll in private schools through these programs.192

These problems are all the more concerning given the disinvestment in public education since the Great Recession. In the first couple of years of the recession, states were routinely cutting ten to twenty-five percent from public-school budgets193 while driving loads of new resources to the private sector.194 That trend in public-school funding continued well after state tax receipts had fully rebounded. Almost a decade after the recession, more than half of the states continued to fund public education at a lower level in real-dollar terms than they had prior to the recession.195 One study found that “students across the U.S. lost nearly $600 billion from the states’ disinvestment in their public schools” in the decade following the Great Recession.196 In short, states were starving public schools and incentivizing exit to private schools.

If there is any playing field that the Supreme Court should be worried about, it is the uneven one described above. Under their constitutions, states have duties—long demanded and underwritten by the federal government—to deliver adequate, equal, and nondiscriminatory education to all.197 Carson, on the premise of religion as victim, ignores both the uneven playing field and states’ public-education duty. And contrary to the state-policy deference the Court invokes in almost every other significant education issue,198 Carson affords the state none, insisting basic education policy is religious discrimination.

IV. religious superstatus?

The Court’s expanding view of the Free Exercise Clause raises the question whether religious rights are assuming a superstatus and may at some point swallow antidiscrimination rights. This notion ought to be preposterous. For the past half century, the federal government has built a statutory antidiscrimination regime that applies to public elementary and secondary schools and all institutions of higher education that receive federal funds, including both public and private colleges and universities.199 Several states have adopted their own analogous provisions, at times extending even broader antidiscrimination rights than the federal government.200 The Court has never recognized a freestanding religious exemption from complying with these statutes.201 To do so now would work enormous changes to the status quo.

Yet, as a practical matter, the Court’s doctrine has seemingly inched closer toward elevated status for religious claims. According to Carson, if a state dictates that its voucher programs should fund only secular education, students who want to use the state’s money on religious instruction can claim religious discrimination202—even though those students remain fully eligible to take part in the program on the same terms as every other student. In other words, the student’s goals trump those of the state. By contrast, Black students and women have little to no constitutional leverage to dictate and change the terms of public education programs simply because those programs might exert some exclusionary or unwanted effect on them.203 In particular, the law appears not to be able to reach the status quo of racial inequity.204 And so, too, does the active disregard of policies’ impacts on racial minorities and women. Consider, for instance, a state that mandates all school plays henceforth to be reenactments of Beowulf—an Anglo-Saxon epic—or Lord of the Flies—an all-boy story. Though females and students of color can certainly perform roles in these plays, many are likely to feel discomfort or complete exclusion. Even if the state knew in advance that its policies would have a serious disparate impact, these disadvantaged students have no obvious constitutional recourse.205

Rather than take seriously the continuing inequalities in school finance,206 school discipline,207 access to quality curriculum and teachers,208 and student assignments,209 the Court’s standards for race and sex discrimination have grown stricter.210 Plaintiffs not only must show intentional policies that result in predictable harms to minoritized groups,211 they must show that a specific government actor adopted a specific course of action with the motive of harming the minoritized group. In the Court’s words, the decisionmaker must have “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable [racial] group” or women.212

For example, it was not enough to show that race was a factor in Georgia’s death-penalty system and that Black defendants were far more likely to receive the death penalty than whites, even after holding all other factors constant.213 Though racial bias was apparent across the system,214 criminal defendants challenging the state’s death penalty had to show that a particular prosecutor or jury harbored racial motivations.215 The stringent intent requirement holds for statutory claims, too—plaintiffs currently cannot bring disparate-impact claims under Title VI, for example.216

While the Court was raising the standards for plaintiffs to establish discrimination, the Court was also tightly constraining states’ ability to voluntarily remedy these disparities themselves. Again, racial disadvantage, racial harm, or racial segregation was not enough.217 To adopt a race-conscious remedy, for instance, the state had to show that it had a compelling interest—typically remedying its own intentional discrimination—and that its policy solution was narrowly tailored in multiple respects.218 In short, religious “disadvantage” is seemingly actionable regardless of the state’s motivations and goals whereas race and sex disadvantages are rarely actionable or remediable.

Comparisons aside, the Court in Fulton v. City of Philadelphia also recently sided with religion in a case involving a conflict between antidiscrimination policy and the free exercise of religion.219 The Court held that Catholic Social Services had a constitutional right to an exemption from the city’s antidiscrimination policies.220 To be clear, the Court’s holding was narrow: Catholic Services was entitled to a religious exemption only because the city’s policy included a formal mechanism for granting exceptions.221 Under those circumstances, the policy was not generally applicable.222 The Court left in place the doctrine that religion is not entitled to exemptions from neutral, generally applicable laws and policies.223 That doctrine—first articulated by Justice Scalia’s majority opinion in Employment Division v. Smith as a hedge against chaos224—now hangs by what may be the narrowest of threads.225 If the Court overruled this doctrine, then a no-exceptions antidiscrimination policy could well fall.

In short, the Court’s evolving jurisprudence suggests that even if religion has not achieved formal elevated status, as a practical matter, religious challenges just keep winning and something resembling superstatus is the next logical step. This result would be the cruelest irony for public schools and their most marginalized students, who confront far more serious circumstances than limits on how they can spend public dollars in the private sector. One can only hope that at some point practical reality and historical truth will serve as a buffer against an aggressively expanding Free Exercise Clause. Otherwise, the country’s antidiscrimination regime itself stands in harm’s way.


Trinity Lutheran may have preordained the result in Carson five years ago, but Carson stings public-education supporters, school officials, and policymakers nonetheless. Carson extended Trinity Lutheran’s principle of religious antidiscrimination to its outer reaches, affording religion something of a superstatus seemingly above that of race or sex. It is no longer acceptable for a state to seek neutrality on matters of religion by separating itself from religion. The state must instead open its doors to religion and accommodate various religious adherents’ personal interests and pursuits, even when they conflict with those of the state, undermine public education, and threaten equity for traditionally disadvantaged students. The Court has all but invited individuals to bring free-exercise claims any time public policy occasions some inconvenience for those individuals’ religious interests.

The inequity in greenlighting those religious claims while ignoring the prevalent discrimination in the private sector against other students based on race and gender is striking. So, too, is the inadequacy and inequity that privatization threatens for all public-education students. It is a brave new world indeed.

Professor of Law, University of South Carolina School of Law. I would like to thank the editors of the Yale Law Journal for inviting me to write this Essay and for all of the excellent support and suggestions they have provided along the way. I would also like to thank Dean William Hubbard for supporting my research.