On June 21, 2022, the Supreme Court overturned a Maine law that excluded religious schools from the state’s tuition assistance program, saying that the program violated the free exercise of religion in the state.
Writing for a 6-3 majority in favor of the plaintiffs, Chief Justice John Roberts said the program allowed parents to direct the funds of the program to the school of their choice and was, therefore, subject to “the free exercise principles governing any public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.”
The ruling will immediately impact three New England states—Maine, Vermont, and New Hampshire—but by offering state governments an opening to expand the use of school vouchers, the decision has sparked renewed debate about private school voucher programs, school choice, and the long history of inequity rooted in these policies.
A roadmap rooted in inequity
Prince Edward County, Virginia, is arguably the best example of how school vouchers have enabled segregation and inequity. After the Supreme Court ruled against racial segregation in Brown v. The Board of Education, the county closed all of its public schools in 1959 with chains and locks and used tuition vouchers to open private schools for white children.
Before the county closed down its public schools, county board officials cut school funding by nearly 80%, distributed funds to schools monthly, allowed officials to close schools at will to cut costs, and implemented a tuition grant program that benefited white families.
In 1964, the Supreme Court intervened and ruled against Prince Edward County’s move to close all public schools and provide school vouchers to prevent integration, saying Black children in the county bore heavier consequences because “until very recently, [they] have had no available private schools.”
In Carson v. Makin, the plaintiffs argued that this ruling could only impact a small group of Maine residents who qualified for the state’s tuition program, but according to Derek Black, director of the University of South Carolina School of Law’s Constitutional Law Center, the ruling echoes a more concerning albeit recurring problem with voucher programs in New England and the nation.
According to Black, because voucher programs were born out of a fierce refusal to integrate schools racially, those who currently opt to use tuition programs, like the one offered in Maine, ultimately enroll in more socio-economically and racially segregated systems than the ones they leave. When looking at Cleveland’s voucher program, Black found that it reinforced segregation by disproportionately helping middle-income students leave disadvantaged school districts. According to Black, middle-income students were twice as likely to receive a tuition voucher compared to low-income students.
“The more kids that we take out of a common experience and put into a modularized experience, the more we have a democracy problem, the more we have a cultural problem, the more we feel the flames that are the things that have been ripping this country apart last few years,” Black said, “And so I think there’s a huge democracy and equity problem there.”
In Maine, the tuition rates are set by the state’s Department of Education each academic year based on the average per-pupil cost (up to $10,477 for elementary schools and up to $12,480 for high schools in AC 2021-22). Black also said, however, that programs like Maine’s tuition assistance program only pay a percentage of private school tuition for qualifying students, favoring families with available resources who can pay the difference.
A path backward
Maine first presented its tuition assistance program in 1873, making it the second-oldest voucher program in the nation. The program paid for students living in primarily rural districts without public schools to attend other public or private schools in other districts or states. In 1981, Maine revised its state statutes to exclude religious schools from the program “in accordance with the First Amendment.”
Eight years later, Wisconsin launched the first modern school voucher program in the Milwaukee School District. Initially, the program only included nonsectarian schools, but in 1995, it expanded to include sectarian schools. Soon other states like Florida and Indiana also successfully implemented voucher programs and reflected a national movement toward adopting school choice policies that included religious schools. In 2002, in a case that foretold the outcome of Carson v. Makin, the Supreme Court ruled that government-funded vouchers could cover tuition to religious schools in Cleveland.
In 2017, following a wave of support for voucher programs, then-U.S. Secretary of Education Betsy DeVos presented a plan to further the school choice movement with a national program that used federal funding for private school vouchers.
DeVos’ plan called for $250 million in federal funds in vouchers for private and independent schools while declining to say whether the plan would protect students against discriminatory policies within those schools. Education policy experts were troubled by the plan’s lack of transparency, given how school vouchers were a tool that facilitated white flight and enforced school segregation.
Though DeVos is no longer in office, in the wake of the court’s ruling, questions loom about what it could mean for charter schools, which divert funds from public schools to finance independently established institutions. Current Secretary of Education Miguel Cardona served as a charter school authorizer in Connecticut before joining the Biden Administration, regulating the state’s 25 charter schools. When pressured to say whether he supported charter schools and school choice during his senate confirmation hearing, Cardona refrained, saying, “I believe we need to make sure all of our schools are well resourced, so we don’t have a system of winners and losers.”
According to Black, the court’s recent rulings are moving toward privatizing public services and have yet to draw a line between charters and vouchers. Because the ruling now extends state vouchers to religious institutions, it could make space for vouchers to fund independently operated religious charter schools. Charter schools are managed by all kinds of institutions, including public and private as well as nonprofit and for profit. Laws in place prevent charter schools from discriminating against students, but allowing religious charter schools to benefit from vouchers could allow school administrators to say who is allowed into these schools.
Samuel Abrams, the director of the National Center for the Study of Privatization in Education at Columbia University Teachers College, also believes that charter schools could be the more significant but overlooked consequence of this ruling.
In his research, Abrams uses the Los Angeles teachers’ strike in 2019 as a cautionary example of what happens when school districts lean into charter schools as an alternative to local public schools. One of the demands teachers made was a cap on the city’s 225 charter schools. Abrams points out that charter schools were not the sole reason for the financial crisis of Los Angeles schools, but they did intensify it by turning education into a commodity.
“That’s been the big debate with vouchers and charter schools. What happens to the schools left behind?” Abrams said when explaining how the cost of maintaining public schools remains the same even when students, and the funding for them, leave for charter schools.
“You’re potentially not going to have the money for science equipment, computers, librarians, the nurse—you’ll have to cut tutors who are helping the students who are struggling.”
Charter schools have become an increasingly popular option for school choice supporters in urban districts. Massachusetts celebrates School Choice Week yearly, even as some have criticized the millions diverted annually from public schools to fund independent charter schools. Black believes the ruling in Carson v. Makin could open the door for charter and religious schools to double in size, which could prove disastrous.
“We need everyone to be part of a new diverse America,” Black said. “And that doesn’t mean that we force kids to go to a school, but we certainly should not be paying them to leave.”