Carson v. Makin is a triumph for theocrats and a loss for public schools
I’ll start by saying there is no such thing as a good school fight song. They’re cringey. The tunes are forgettable and the lyrics are garbage.
This one is especially bad in context:
V is for victory, sing it out, ‘tis a glorious word
V is for victory, it is ours through Christ our Lord
Some days may be dark and drear
In Christ our way's all clear
For we have Victory, Victory in Christ our Lord
That’s the song of Bangor Christian Schools, an evangelical Christian institution that Maine taxpayers have to subsidize now, according to the hard-right Christian majority on the Supreme Court of the United States.
SCOTUS has been chipping away at the theoretical wall between church and state in the area of school funding for at least two decades now. This year, the conservatives on the Roberts Court are bringing out their sledgehammers with big goofy grins on their faces, Chip Gaines-style.
In Zelman v. Simmons-Harris (5-4, 2002), the Rehnquist Court ruled that an Ohio private-school voucher program could funnel state funds into religious schools. Yesterday’s 6-3 ruling in Carson v. Makin went a step further, declaring that any state with a private-school voucher program must allow those funds to go to religious schools.
Carson wasn’t a sneak attack on religious freedom; the libertarians and neoliberal privatizers who backed school vouchers for ideological reasons saw this coming decades ago. An outcome like Maine’s is one of the many, many, many reasons why teachers and public school advocates fought tooth and nail against school voucher laws in the first place. Justice Souter spelled out the obvious in his Zelman dissent in 2002:
There is, in any case, no way to interpret the 96.6% of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers … For the overwhelming number of children in the voucher scheme, the only alternative to the public schools is religious. And it is entirely irrelevant that the State did not deliberately design the network of private schools for the sake of channeling money into religious institutions.
There’s not much use engaging with the argument put forward by the majority in yesterday’s Carson opinion. I read the opinion last night, and this is the entire substance of it:
The State pays tuition for certain students at private schools — so long as the schools are not religious. This is discrimination against religion.
This argument is bullshit in the philosophical sense, and John Roberts knows that we know it. The state of Maine didn’t ban Christian schools from receiving state funds on the basis of their particular religion, but on the basis of their status as institutions of religious education. A first-year law student could write with more lucidity about how the First Amendment’s Establishment Clause and the 38 state-level Blaine Amendments were written to prevent this exact scenario, but it wouldn’t matter because the Carson opinion isn’t about the Constitution. It’s a naked exercise of power by an activist court.
As a parent of South Carolina public school students, my first thought after reading the Carson opinion was how the South Carolina General Assembly would exploit it to further rob public schools in the next legislative session. Predictably, the leading lights of our ruling party have been crowing about the decision ever since it was announced.
“This is a victory for school choice and religious education,” South Carolina Attorney General Wilson said yesterday.
Lord knows what they’ll try now that they know they can get away with it. Back in 2020, South Carolina Gov. Henry McMaster tried to divert $32 million of federal COVID relief funds from public to private schools, the majority of which were religious. The South Carolina Supreme Court smacked him down in a unanimous decision under a plain reading of the state constitution, which prohibits taxpayer funding of private schools.
Religious institutions are already siphoning money from South Carolina public schools in other ways. In 2017, a private Christian liberal arts college and seminary in Due West, S.C., called Erskine College established itself as a public charter school authorizer. As a result, a board appointed by a religious institution is now overseeing the disbursement of millions of dollars in public education funds — and taking a 2% cut.
(Notably, Erskine is affiliated with the Associate Reformed Presbyterian denomination, of which Gov. McMaster and Attorney General Wilson are members.)
Immediately after its formation, the Charter Institute at Erskine authorized transfer requests from two failing virtual charter schools that were at risk of losing their charters from the state after years of abysmal academic performance. By 2018, Erskine was overseeing $64.6 million of state education funds, of which it took a $1.3 million cut.
What’s next for South Carolina’s chronically defunded public schools post-Carson? We got a preview in this year’s legislative session when the Republican trifecta very nearly passed the “Put Parents In Charge Act” (S. 935), which would have redirected public funds to private K-12 schools, the majority of which are Christian, via “Education Savings Accounts.” This new variation on a voucher law was copied from model legislation propagated by the Heritage Foundation and written by the American Legislative Exchange Council (ALEC), a right-wing bill mill that ships its ideas to conservative lawmakers in state legislatures across the country.
I wrote to some state senators about what they were doing back in February:
It is difficult to predict how much money public schools would lose as a result of Education Savings Accounts, which would allow public funds to “follow” individual students to private schools. Our state’s Revenue and Fiscal Affairs Office has tried to guess, though. According to a fiscal impact summary published in December, the ESA program could divert as much as $35 million to private schools within the first year it takes effect, depending how many families participate in the program. By 2026, they estimated the program could cost the state as much as $2.9 billion. Compounded by the General Assembly’s ongoing policy of public disinvestment, this could constitute a death blow to public schools.
This isn’t the first time South Carolina teachers had to band together and fight off a school voucher bill. In a year when teachers were quitting in record-setting numbers and the legislature couldn’t even be bothered to pass a raise for educators that would rival Mississippi’s, we heard days of debate and dithering about the Education Savings Account bill. Lawmakers rejected amendments to prevent discrimination against students with disabilities at qualifying private schools. An elephant in the room was the fact that many of South Carolina’s private schools were founded in the 1970s as all-white segregation academies, including such illustrious institutions as Calhoun Academy and Robert E. Lee Academy.
We dodged the bullet again this year. After months of debate and competing versions of the bill in the Republican-controlled House and Senate, the clock ran out. Lawmakers didn’t manage to pass a version to the governor’s desk before the session ended. You can be certain they’ll try it again in 2023, with new leeway for state establishment of religion thanks to Brett Kavanaugh and Company.
There is no compelling reason for taxpayers to subsidize private school tuition, for a private religious entity to oversee public funds, or for public funding to flow to private schools that provide religious instruction.
Now, all three scenarios are legal (and in some cases required).
Appointed for life by a minoritarian Senate, the members of the U.S. Supreme Court are immune to democratic pressure and free to enact the legislative agendas of their corporate and Christian dominionist backers. Unless and until we abolish the filibuster, expand the court, and pack the court with justices to the left of Sotomayor, Supreme Court justices will continue serving up word salad from the slimy crisper bin of the Federalist Society. Our civil liberties will continue to be diminished, and our greatest public institutions will continue to collapse.
Anyway here’s the rest of that fight song:
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