The Supreme Court Is Fueling the Right-Wing War on Public Schools

On Tuesday, the Supreme Court’s now-inevitable 6-3 configuration decided that Maine violated the Constitution by withholding taxpayer dollars from private religious schools. The decision, Carson v. Makin, is the culmination of a decades-long conservative project to redefine the Free Exercise Clause of the First Amendment as something that compels, rather than bars, public funding of religious institutions. 

The success of this effort is bad on its face, but an even worse dynamic underpins it: the less visible yet no less rabid conservative project to rid America of the scourge of public secular education altogether.

The Maine law at issue in Carson exists because some of the state’s residents live in rural areas with no public secondary school. Thus, Maine provides tuition assistance that allows parents to send their children to a secondary school—whether private or a public school in another district—of their choice. But the state prohibited parents from using that benefit at schools that provide explicitly religious academic instruction, because doing so takes public taxpayer money and hands it directly to a religious institution. To people who are not conservative Supreme Court justices, this is about as clear as violations of the Establishment Clause can get.

The root of the problem in Carson, though, is the state’s choice to set up this convoluted funding scheme instead of funding a sufficient number of public schools. Even before Tuesday’s “religious freedom” assist from the Supreme Court, Maine’s law allowed the state to fail to set up a public education system. Instead, it sent money hither and yon, transferring would-be public money to private institutions eager to collect; parents could even send their kids to out-of-state or foreign schools, if they so desired. If conservatives in states controlled by Republicans have their way, this tangled, inefficient, a la carte method of paying for education might become the norm. 

Texas lawmakers have been on this beat for the better part of three decades. In March 2022, the Texas Observer’s Christopher Collins wrote about ongoing efforts to “disrupt, deplete, and destroy” public education in that state. A lot of these efforts amount to bog-standard culture war gripes: Diversity is bad, wearing masks is oppression, books by LGBTQ+ authors are by definition pornographic, and so on. But as Collins notes, conservative activists are eagerly weaponizing these culture war shibboleths to promote the “school choice” movement. As the conservative Heritage Foundation put it in a recent report: “Advocacy groups would be foolish not to promote choice as a solution that can connect large majorities of parents with schools that align with their values—especially when public schools are not meeting their needs.” Heritage’s proffered solution, of course, is “developing universal programs with large scholarship amounts and few regulatory constraints.” 

Chief Justice John Roberts’s opinion in Carson provides these activists with a blueprint for following through. Those “large scholarship amounts” no longer have to come from private donors—they can just come from the taxpayers. Carson gets rid of the most important “regulatory constraints,” too: Now, everything can be taught through a religious lens without running into Establishment Clause problems.

The war on public education is not just about the promotion of religion. Earlier this year, Texas Governor Greg Abbott stated that he’d like to challenge Plyler v. Doe, a 1982 case in which a 5-4 Supreme Court held that Texas public schools could not turn away undocumented children. Abbott declared that the costs of teaching immigrant children are “extraordinary,” and that “times are different” today, which feels like a coded way of noting that the modern Supreme Court is likely far more sympathetic to his cause.

Republicans in other states are putting the content of public school education under a right-wing microscope. Last year, Richard Corcoran, who until recently served as Florida Governor Ron DeSantis’s education commissioner, bragged about firing a teacher who supported racial equity in a speech at the ultraconservative Hillsdale College in Michigan. “I’m getting sued right now in Duval County, which is in Jacksonville, because there was an entire classroom memorialized to Black Lives Matter,” Corcoran said. “We made sure she was terminated, and now we’re being sued by every one of the liberal left groups who say it’s a freedom of speech issue.”  

It is indeed a freedom of speech issue, but employing the might of the state to stop schools from teaching things the state doesn’t like is a popular strategy these days. In a report published last year, the American Enterprise Institute makes explicit the link between what gets taught and what gets funded, arguing that parents could “force public schools to decide whether pushing a political ideology is truly worth alienating potential enrollees and losing the formula funding those kids would bring.”

Starving public schools of money because they stand for things conservatives don’t like is not new. After the Supreme Court decided Brown v. Board of Education in 1954, officials in at least eight Southern states passed laws designed to stop desegregation. One of the school districts at issue in Brown, Prince Edward County in Virginia, promptly passed legislation that cut off funding to any desegregated school, closing those schools and shifting that state money to private schools. When that didn’t work, the state created a “school choice program” and got rid of compulsory attendance laws. 

In 1964, the Supreme Court ruled against the district in Griffin v. School Board, but segregation via the proliferation of private schools has persisted. White students are overrepresented in private schools in the South, which is the only region that’s seen an increase in the number of private schools—especially religious ones—in the last two decades. 

In the Brown and Griffin era, the Court was committed to integrating public schools and ensuring that everyone had equal access to them. Just two generations later, in the name of religious freedom, it is setting the stage to reverse these decades of progress.