School Choice and the Week’s Other Supreme Court Decision

June 26, 2022


The Supreme Court has been in the news, and while the Dobbs decision is undeniably the biggest, there is another with relevance to school choice nationwide and in Ohio.


On Tuesday, June 21, the U.S. Supreme Court ruled in Carson v. Makin that Maine's town tuitioning programs violated the Constitution by excluding schools that provide religious instruction from being eligible for selection by students in the publicly funded programs.


Chief Justice John Roberts delivered the majority opinion, stating broadly that when state and local governments choose to subsidize private schools, they must allow participating families to use those funds to pay for religious schools. The exclusion of religious schools from participating in Maine's state tuition assistance program was a violation of the First Amendment's Free Exercise Clause rights of students who might want to choose such schools. A short and clear summary from the Cato Institute, which filed an amicus brief in the case, is available here.


Importance to Ohio

Ohio already has 5 voucher programs, and now a new tax credit scholarship as well as a new educational savings account (ESA) for after-school activities. Yet this week’s ruling is still very relevant for us. Why?


Because the lawsuit brought against Ohio’s EdChoice program by school choice opponents makes challenges to Ohio’s constitution with the same anti-religious animus present in Carson. At the heart is a misapplication of the separation between church and state, one facet of the First Amendment’s establishment clause, at the expense of another facet, the free exercise clause.


The Ohio complaint attempts to twist parents’ voluntary choice of religious schools using state scholarships into a violation of Ohio’s constitution, which forbids "religious sects" from having “exclusive right to, or control of, any part of the school funds of this state.”


Even if the EdChoice opponents' constitutional claims were accurate (which I believe they are not), the Carson v. Makin ruling makes clear that a “neutral benefit program” cannot exclude religious schools simply because they are religious, and a state cannot make laws that do so without violating the U.S. Constitution. Writing for the majority, Chief Justice Roberts stated, “... as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.”


Together with Zelman (2002), Trinity Lutheran (2017), and Espinoza (2020), this most recent ruling is further evidence that the highest court in the land sides with Ohio's school choice programs. The EdChoice case, currently in Franklin County Court of Common Pleas, will continue to proceed as scheduled through Ohio’s judiciary system.


For an excellent discussion of the Carson v. Makin decision and the context and history leading up to it, see this recording from last week’s session by the University of Notre Dame's Alliance for Catholic Education featuring Nicole Stelle Garnett, the John P. Murphy Foundation Professor of Law at Notre Dame and ACE’s senior policy advisor, and John Schoenig, ACE's senior director for teacher formation and education policy. https://vimeo.com/723789799


Another great resource is from our colleagues at Partnership Schools (who are busy preparing to take on two new Catholic schools in Cleveland), who joined the University of Notre Dame and leaders of Islamic Schools and Orthodox Jewish schools last year in filing an amicus brief, which you can read about at the link.


It’s a historic week for the Supreme Court! With your engagement and support we continue to press on to make progress for religious freedom in education for all children of Ohio and the nation.




Federal Tax Credit Scholarship Bill Introduced


Last week, four U.S. Senators introduced a plan to provide $10 billion in annual tax credits to donors of scholarship programs for needy families seeking education alternatives known as the Educational Choice for Children Act. Senators Bill Cassidy, M.D. (R-La.), Tim Scott (R-S.C.), Steve Daines (R-Mont.), and Todd Young (R-Ind.) sponsored.


Kathleen Porter-Magee, Superintendent of Partnership Schools, penned a beautiful call to action in Newsweek you can read here.


And Kathleen has been busy! In addition to leading Partnership Schools, which will take on two more Catholic schools in Cleveland this year, she also leads a deep dive into nationwide enrollment trends, published by the Manhattan Institute here. This exploration testifies to the momentum Catholic schools have built and challenges us all to keep it up. It is well worth your time to review.



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