The Other Supreme Court Case Last Week…Three Ways Makin Could Be Complicated For School Choice & Charter Schools

Some people will disagree with this sentiment now! Photo via Creative Commons.

Yes, there were other Supreme Court cases last week besides Dobbs*. Guns, civil liberties, and a significant First Amendment religion case involving schools and a quirky school choice program in Maine.

That case, the Carson v. Makin case, about school choice, is also a big deal. In Zelman, in 2002, the court said states may include religious schools in school choice plans that pay for tuition. In Makin the court said,

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regard- less of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise

In other words, may became must. Again, that’s a big deal!

It’s clearly a big win for those who want to expand school choice as broadly as possible. On net the expectation is that Makin will lead to an increase in choice, but choice was increasing anyway – pretty dramatically during the pandemic and steadily before that. So this is not some sort of Slate pitch. School choice is winning.

But, unintended consequences are a thing, too. And I do think there are some risks that are being under appreciated. Here are three:

First, there is a risk here for charter schools. Depending on how states choose to implement this ruling it could open the door for religious charter schools. Valerie Strauss, Diane Ravitch, and that crowd are already licking their chops at this prospect because of the headwind it would create for charters. Charters are under a lot of political pressure now – the Biden Administration is trying to curtail their growth, they’ve become politically contentious again leading to a decline in elite support, and growth has slowed. Confusion about charters, their religious status, and all of that is just one more arrow in the quiver of opponents.

Second, as the ruling is implemented by more states it could stir up new opposition to school choice. I was struck by how many people seemed to greet the Makin decision as the first penetration of the church state wall rather than one of the last. In fact, it was the latest in a long line of cases about public money for Title I, or technology, or vouchers, and then of course the Blaine cases about state prohibitions. Still, the idea that this is the big breach of the church – state wall could have political salience and become an organizing principle for anti-school choice advocates.

In other words, while the ship has sailed on church state issues with vouchers as a matter of law, it has not as a matter of politics. This could reenergize that fight – especially if opponents link it to the broader political backlash about the court’s 6-3 decisions this term. And, as always, the political debate will not turn on that nice parish school down the street, it will turn on extreme examples. The SCOTUS did not establish any right to school choice, it just said that if you have a choice scheme it must include all kinds of schools. This could tip the balance in some places toward sidestepping the entire basket of issues by limiting choice plans.

Third, beware unintended consequences. This case will bring religious schools and public regulations into more frequent contact. Some states will try to ensure that public dollars don’t flow to schools that discriminate, in particular on LGBT issues. This may dissuade some schools from wanting to participate in these programs – as happens in some instances now. If that leads to a sector of truly private schools and broad choice driven sector of publicly funded schools or some sort of compromise framework around civil rights then that could be a positive and innovative change for the K-12 education sector. But it’s also quite possible we just end up in a morass of entanglement questions and more culture war strife.

*On Dobbs and abortion, I wrote in May about the weird juxtaposition of school choice and abortion choice politics. My personal view is that abortion is complicated and personal and government should tread lightly, if at all, around complicated personal issues. I can also understand the strong feelings people have given the intractable nature of the issue.

As a political matter, there are two views on Roe. One, is that Roe and Casey, however clumsy as constitutional law, were in the end a rough approximation of the conflicted view of the country and a sort of half century compromise on a hard issue. The other is that Roe ignited a half century of constitutional and political strife that returning the issue to states will lessen. We’re now going to test those propositions in real time.

My sense is that in the near term this ruling will increase not lessen the political friction and tension, and while we’ll probably end up with something approximating the the most common western European approaches to the issue that will only happen over time, at considerable cost, and with a lot of variance in the meantime. And I suspect in the meantime it will continue to poison our politics and that venom will spill over into education policy and politics at a time we can ill afford it.