Supreme Court Victory for Educational Choice!

Michael Bindas
Michael Bindas  ·  July 26, 2022

A U.S. Supreme Court victory is always a big deal. But one removing the last major constitutional cloud over educational choice? That’s a really big deal. And on June 21, we got it in Carson v. Makin, a challenge to Maine’s exclusion of religious options from that state’s educational choice program for students who live in towns without a public high school. 

When the modern educational choice movement was in its infancy, there were two major constitutional questions: Does the U.S. Constitution’s Establishment Clause permit religious options in educational choice programs and, if so, can state law nevertheless bar religious options in them? 

The Supreme Court answered the first question in Zelman v. Simmons-Harris, IJ’s successful 2002 defense of a voucher program for children in the terribly performing Cleveland City School District. There, the Court held that religiously neutral educational choice programs that operate on the private choice of parents are perfectly permissible under the federal Establishment Clause. 

Choice opponents, primarily the public school teachers’ unions, then changed tactics, arguing that even though choice is permissible under the federal Constitution, it still violates state law—specifically, the Blaine Amendments found in some 37 state constitutions. These provisions, which are steeped in 19th-century anti-Catholic animus, prohibit public funding of so-called sectarian schools. 

IJ, meanwhile, argued that to apply these discriminatory provisions to bar educational choice programs would violate the Free Exercise Clause of the U.S. Constitution. It was that question—the constitutionality of a state bar on religious options—that would take two more decades after Zelman to fully resolve. 

We got halfway there in Espinoza v. Montana Department of Revenue, the 2020 decision in which IJ convinced the U.S. Supreme Court that Montana violated the Free Exercise Clause by prohibiting religious options in its educational choice program. That bar, the Court held, impermissibly discriminated against a parent’s chosen school based on its religious status or identity. 

Again, though, educational choice opponents immediately attempted an end run. They argued that even if a state cannot discriminate against a student’s chosen school because of its religious status, it can still discriminate based on the religious use to which a student’s aid might be put at the school: namely, religious instruction. Worse, the 1st U.S. Circuit Court of Appeals agreed, adopting that very reasoning to uphold Maine’s exclusion of religious options four months after the Supreme Court’s Espinoza decision. 

Thankfully, the U.S. Supreme Court stepped in yet again and finally put the question to rest. On June 21, the Court handed down its opinion in Carson, holding that “regardless of how the . . . restriction [is] described”—as turning on religious status or, instead, religious use—it “exclude[s] otherwise eligible schools on the basis of their religious exercise” and thus “violates the Free Exercise Clause of the First Amendment.” 

In that simple, commonsense holding, the Court made absolutely clear that state law cannot be applied to bar religious options in educational choice programs. The Blaine Amendments, in other words, were effectively buried. That means the Court’s ruling has implications far beyond Maine, opening up opportunities to expand educational choice programs nationwide at a time when dissatisfaction with the public school system is at an all-time high. Thousands more kids will now have a shot at a quality education provided by a school of their families’, not the government’s, choosing. Moreover, the ruling in Carson is a powerful vindication of IJ’s unwavering resolve—and a fitting culmination of IJ’s three-decade-long fight to firmly establish the constitutionality of educational choice.

Michael Bindas is an IJ senior attorney.

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