The Oklahoma Supreme Court on June 25 delivered its eagerly anticipated decision on whether the state could authorize an explicitly religious charter school. The court said no, resolving for now the issue in Oklahoma. But its inscrutable reasoning on the First Amendment’s establishment and free exercise clauses indicate that the U.S. Supreme Court will have to take up the issue—in either this case or one that will inevitably arise in another state.

Following the Supreme Court’s 2022 ruling in Carson v. Makin that excluding religious schools from Maine’s voucher program was unconstitutional, the Archdiocese of Oklahoma City and Diocese of Tulsa applied to Oklahoma’s Charter School Board to establish St. Isidore of Seville Catholic Virtual School. The board approved in a decision backed by state Attorney General John O’Connor, who cited the Supreme Court’s reasoning in the trilogy of Makin, Espinoza v. Montana (2020), and Trinity Lutheran v. Comer (2017) to justify his support. Oklahoma’s charter school law allowed other private organizations to operate charter schools, so preventing religious ones from doing so would violate the free exercise clause’s requirement that religious entities not be excluded from an “otherwise generally available public benefit.”

After 2022, however, a new attorney general, Gentner Drummond, assumed office. He promptly rejected his predecessor’s opinion and asked the board to rescind its approval. When it did not, Drummond asked the state Supreme Court to intervene. He argued that, among a parade of horribles that would result from the charter board’s action, allowing a Catholic charter school would require Oklahoma to fund a Muslim school or even “the blasphemous tenets of the Church of Satan.” In Drummond v. Oklahoma Statewide Virtual Charter School Board, a 6–2 majority of the court agreed.

Their reasoning had an inauspicious start. It held that the charter school violated Article II Section 5 of Oklahoma’s state constitution, which reads: “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.” This is also known as the state’s Blaine Amendment. But the U.S. Supreme Court effectively ruled Blaine Amendments unconstitutional in Comer and Espinoza.

The court then pointed out that the state’s charter school law also requires that charter schools be nonsectarian. But no one disagreed with that. The issue was whether that requirement violates the U.S. Constitution. The court also held that the school would be a “state actor” and therefore subject to the same requirements as traditional public schools. Whether that matters though hinges on whether the First Amendment is implicated. It is on this topic that the opinion becomes difficult to reconcile with recent Supreme Court decisions.

On the establishment clause, the court cited the Supreme Court’s 1947 ruling in Everson v. Board of Education that the government cannot pass laws “which aid one religion, aid all religions, or prefer one religion over another.” This citation was peculiar since it is this “no aid” line of reasoning that led to the infamous “Lemon test” the Supreme Court killed and buried in Kennedy v. Bremerton (2022). The court held in that case that the establishment clause must instead “be interpreted by ‘reference to historical practices and understandings’.” This “history and tradition test” emphasizes how those closest to a clause’s enactment understood its meaning.

It is not at all clear from the famously strained opinion in Everson—the court cited Thomas Jefferson as an authority on the clause’s meaning when he had nothing to do with its writing or ratification—that the decision could fit with the history and tradition test. It is possible that it could, but the Oklahoma Supreme Court did not even reference the new test. Instead, it briefly mentioned Bremerton and then cited an earlier series of cases involving school prayer that could well end up being circumscribed. Even if the prayer cases end up not being curtailed, they raise completely different questions because charter schools are, by definition, schools of choice. No one would ever be compelled to participate in a charter school’s religious activities.

Even more puzzling was the court’s free exercise clause analysis. The majority argued that the Makin, Espinoza, and Comer trilogy did not apply because they involved private entities, and this case involved the “State’s creation and funding of a new religious institution.” Their reasoning, however, ignored the fact that most charter schools are operated by private corporations. That these corporations, and indeed any corporation, cannot exist without a state charter does not mean that they are state actors. Simply being authorized to operate by the state is not the same thing as being created by the state.

One could imagine, and certainly would have hoped for, a more clearly reasoned decision, but the Oklahoma court did not provide it. Even if no appeal is made in this case or if the Supreme Court declines to hear one, the thorny issues that the majority elided will come up again and need to be resolved.

In short, this decision represents at most the opening salvo on religious charter schools, not the final word.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s Institute of American Civics at the Baker School of Public Policy and Public Affairs.

May 17 marks the 70th anniversary of the U.S. Supreme Court’s landmark school desegregation decision in Brown v. Board of Education. There is ample reason to celebrate Brown: not only did it mark the beginning of the end of the racial caste system in the South, but also it reinvigorated the Equal Protection Clause of the Fourteenth Amendment. Its implications reach far beyond race and education, as important as those matters remain.

At the same time, it is remarkable how many of the legal and policy questions raised by Brown remain unresolved. Consider some of the issues many school systems now confront:

• To what extent can school districts take students’ race into account in order to produce diverse schools and classrooms? In recent years the Supreme Court has limited the use of race-based assignments but has also allowed ample wiggle room.
• To what extent can school districts change the admissions requirements of exam schools to increase the number of Black and Hispanic students if the readily predictable result (and perhaps a secondary purpose) is to reduce the number of Asian American students?
• A number of public schools offer voluntary “affinity” groups or courses limited to Black students and led by Black teachers. Does this practice violate federal law?

These questions remain the subject of intense debate and litigation seven decades after Brown because the Supreme Court has never spelled out exactly why segregation violates the U.S. Constitution, what “desegregation” means, and what schools must do to comply with Brown’s mandate. Chief Justice Earl Warren’s constitutional argument in Brown was perfunctory, resting more on flawed social science evidence than on a convincing interpretation of the Fourteenth Amendment. Neither in his 1954 opinion nor in his brief follow-up opinion in Brown II the next year did Warren specify what schools had to do to comply. One tragic consequence of this silence was that virtually no desegregation occurred in the South for a decade and a half. Just as important, when the Supreme Court did start to issue rulings on desegregation in the late 1960s, its opinions were ambiguous, contradictory, and meandering. For decades, the high court left lower federal courts and school officials without clear guidance on how to proceed.

As I explain in my 2023 book, The Crucible of Desegregation, the justices have oscillated between two interpretations that I label the “colorblind/limited intervention” approach and the “racial isolation/equal opportunity” approach. The first establishes a relatively clear legal rule: in all but the most extraordinary circumstances, government cannot use race to classify or categorize its citizens. The central goal is to take a particularly pernicious weapon out of the hands of government officials. Prohibiting the use of racial classifications struck at the heart of the racial caste system in the South without requiring courts to get deeply involved in education questions—thus the “limited intervention” half of the label.

According to the alternative interpretation, Brown held out the broader promise of equal educational opportunity. Providing equal opportunity to minority students requires not just ending legal segregation but also eliminating “racial isolation,” whatever its cause. Indeed, federal judges bear responsibility for examining all features of public education to ensure schools provide adequate instruction and fair treatment to minority students.

Supporters of both interpretations can find language in Brown to support their claims. Each approach has an Achilles’ heel: the former is too easy to evade; the latter too difficult to put into effect. Not until 2007, in Parents Involved in Community Schools v. Seattle School District No. 1, did the high court spell out these competing positions, and even then, neither received support from a majority of the justices.

What Brown Didn’t Say

Writing for the Supreme Court in 1954, Warren was chiefly concerned with maintaining the court’s tenuous unanimity (which was seriously in doubt in the months leading up to the desegregation decisions), writing an opinion simple enough to appeal to the average citizen, and striking a tone that might ease the South into compliance. Although the court would soon strike down every form of state-sponsored segregation, Warren was understandably reluctant to announce such a controversial break with precedent in 1954. Therefore, he did not invoke the famous words of Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But in Bolling v. Sharpe, the companion case to Brown that struck down school segregation in the District of Columbia, Warren seemed to endorse this understanding: “Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.” And Brown II required school districts “to achieve a system of determining admission to the public schools on a nonracial basis” (emphasis added here and below).

In Brown I, though, Warren hedged, writing, “In the field of public education the doctrine of ‘separate but equal’ has no place.” He looked “instead to the effect of segregation itself on public education.” Segregation retards “the educational and mental development of negro children” and “deprive[s] them of some of the benefits they would receive in a racial[ly] integrated school system.” When a state undertakes to provide public education, it becomes “a right which must be made available to all on equal terms.” Thus, on top of Brown’s apparent ban on racial classifications was layered a vague commitment to “equal opportunity,” to be judged in part by the effect of education practices on minority children.

In 1954–55, the court gave no indication of just what school districts had to do to comply with the ruling. Warren’s even shorter opinion in Brown II merely told school officials to desegregate “with all deliberate speed.” The standard established by the court for evaluating schools’ desegregation efforts was as vague as the schedule for achieving it was amorphous.

Colorblindness, Then and Now

In the 1950s, state-mandated separation of the races was viewed by almost all advocates of desegregation as the central problem, and prohibition of racial classifications as the obvious solution. This was definitely true of Thurgood Marshall and the other NAACP leaders who had long dedicated themselves to the cause. Their initial brief insisted that “The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race or color alone.” In oral argument, the NAACP’s Robert Carter explained that the “one fundamental contention which we will seek to develop” is that “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunity among its citizens.”

Members of the court and the NAACP litigation team recognized they would face intense opposition in the South, but they assumed the desegregation process itself would be relatively straightforward. Heading up the team, Thurgood Marshall assured the court that “the only thing that we are asking for is that the state-imposed racial segregation be taken off,” leaving local officials “to work out their solutions of the problem to assign children on any reasonable basis they want to assign them on.” That, he suggested, could be achieved in the summer. Almost everyone envisioned a return to neighborhood schools in the South—after decades of busing students past the nearest school to attend a segregated one. In the border states, de jure segregation did quickly disappear.

But in the Deep South the court’s decision was greeted with the “massive resistance” U.S. Senator Harry Flood Byrd of Virginia called for in 1954. Within two years, Byrd had amassed a coalition of nearly 100 southern politicians committed to blocking Brown’s implementation. By the late 1950s and early 1960s, southern school districts were using “freedom of choice” plans to avoid anything more than token desegregation. Almost all federal judges conceded that these plans were constitutional as long as the choices students and their parents made were in fact free, and not tainted by the presumption that students would attend their previously segregated schools. But in most cases, “freedom of choice” was little more than a transparent fraud, corrupted both by administrative manipulation and by informal intimidation. This created a major practical challenge to those who supported a colorblind interpretation of Brown.

By the second half of the 1960s, the Civil Rights Act was the law of the land, yet virtually no Black students were going to school with white students in the Deep South. Federal judges on the Fifth Circuit Court of Appeals decided that time for stalling had finally run out. Working with the Department of Health, Education, and Welfare (HEW), they demanded data to prove that formerly segregated districts had taken “affirmative action” to achieve “the conversion of a de jure segregated dual system into a unitary, nonracial (nondiscriminatory) system—lock, stock, and barrel: students, faculty, staff, facilities, programs, and activities.” Initially, the demands of the Fifth Circuit and HEW were relatively mild: nearly two decades after Brown, they required only 10 to 20 percent of Black children be enrolled in formerly all-white schools. Without such a numerical standard, it is doubtful any significant change in school enrollments would ever have been achieved. But a Rubicon had been crossed. Now racial classifications were being used to promote desegregation, not enforce segregation.

Was the use of racial assignments a temporary measure designed to wring stigmatizing racial identification out of school districts guilty of unconstitutional segregation, or was it an appropriate—even constitutionally mandated—measure for achieving racial balance in perpetuity in the North and West as well as the South? If the Supreme Court seemed to suggest the latter in the 1970s, by the 1990s it had begun to suggest the former.

Several of the justices appointed by Presidents Reagan and Bush reintroduced the colorblind interpretation of the Fourteenth Amendment that the NAACP had previously favored but long since abandoned. In 1995 Justice Clarence Thomas wrote that the “simple, yet fundamental, truth” announced in Brown is “the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.” According to Justice Anthony M. Kennedy, “Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake.” Justice Sandra Day O’Connor argued that the use of so-called “benign racial classifications” implies “confidence in [courts’] ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.” According to Chief Justice John G. Roberts, “It is a sordid business, this divvying us up by race.”

In the 2007 Seattle case, the high court sharply limited school districts’ ability to use race-based student assignments to achieve what by then was widely known as “diversity” rather than “racial balance.” Four members of the court adopted a colorblind interpretation of the 14th Amendment, but the pivotal fifth vote was cast by Kennedy, who, in his concurring opinion, offered schools significantly more flexibility in using race-based assignment. The court’s 2023 decision in the Harvard affirmative action case suggests that it is inclined to further restrict school districts’ authority. But given how long the court has gone without issuing desegregation opinions, we should not expect a definitive decision soon.

From Racial Segregation to Racial Isolation

Soon after the Fifth Circuit and HEW used numerical targets to jumpstart what UCLA professor Gary Orfield has aptly described as the “reconstruction of southern education,” the Supreme Court finally broke its silence and handed down the first of a flurry of desegregation decisions. In 1968, a unanimous court announced that each school board in formerly segregated districts must “come forward with a plan that promises realistically to work, and promises realistically to work now” (emphasis in original). The demand for immediate action was certainly in order. But what does it mean “to work”? School districts, Justice William J. Brennan explained, have an “affirmative duty” to “convert to a unitary school system in which racial discrimination will be eliminated root and branch.” What, then, is a “unitary school system”? Apparently, one that entirely eliminates the “racial identification” of previously segregated schools. In Brennan’s felicitous phrase, school boards must “fashion steps which promise realistically to convert to a system without ‘white’ schools and ‘Negro’ schools, but just schools.”

Trying to guess what the justices meant, the lower courts held that for a formerly “dual” school system to eliminate “racially identifiable” schools, the racial composition of the student body in each school in the district must approximate that of the district’s overall student population. In other words, white and Black students must be distributed proportionally among all the district’s schools.

Was this a judicial remedy designed to undo the effects of decades of segregation and noncompliance? Or was it a constitutional requirement for all schools, whether or not they had engaged in intentional racial discrimination? On this crucial matter the Supreme Court remained noncommittal. But lower courts repeatedly asserted that racial imbalance by itself reduces the educational opportunities of minority students and is therefore unconstitutional.

This understanding was first enunciated in a 1967 report of the U.S. Commission on Civil Rights entitled Racial Isolation in the Public Schools. Its conclusion summarized what soon became the conventional wisdom. The “central truth” announced in the report was that:

Negro children suffer serious harm when their education takes place in public schools which are racially segregated, whatever the source of such segregation may be. Negro children who attend predominantly Negro schools do not achieve as well as other children, Negro and white. Their aspirations are more restricted than those of other children and they do not have as much confidence that they can influence their own futures. When they become adults, they are less likely to participate in the mainstream of American society, and more likely to fear, dislike, and avoid white Americans.

The commission recommended that Congress enact legislation specifying that in no public school should minority enrollment exceed 50 percent.

This “central truth” was conveyed to federal judges by a cadre of expert witnesses who testified in the trial phase of desegregation cases. For example, during the first round of litigation in Keyes v. School District No. 1, Denver, Judge William Doyle stated, “We cannot ignore the overwhelming evidence to the effect that isolation or segregation per se is a substantial factor in producing unequal educational outcomes.” Consequently, “we must conclude that segregation, regardless of its cause, is a major factor in producing inferior schools and unequal educational opportunity.” Reflecting on the testimony he had heard about the harm done by racial isolation, the trial judge in the Detroit case found it “unfortunate that we cannot deal with public school segregation on a no-fault basis, for if racial segregation in our public schools is an evil, then it should make no difference whether we classify it as de jure or de facto.” The court’s goal was simply “to remedy a condition which we believe needs correction.”

Behind this “racial isolation” argument lay two assumptions: that Brown promised not just the elimination of racial discrimination, but a broader “equal educational opportunity,” and that changing the racial composition of schools would substantially improve educational opportunities for minority students. For example, the district court judge who ordered the desegregation of San Francisco’s schools in 1970 cited the Coleman Report and the Civil Rights Commission’s study to conclude that “Black students in identifiably black schools do not perform as well as they would perform in an integrated school. . . . While integration of schools would improve the academic performance of black children, it would have little or no adverse effect on the academic performance of white children.” Similarly, the judge in the Charlotte, North Carolina case confidently asserted that “the experts all agree” not only that “a racial mix in which black students heavily predominate tends to retard the progress of the whole group” but also that “if students are mingled with a clear white majority such as a 70/30 ratio . . . the better students can hold their pace, with substantial improvement for the poorer students.” Over three decades later, Justice Stephen G. Breyer claimed that social science research indicates “that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting.”

Especially in the North, where school districts are much smaller than in the South, coming close to a 70/30 ratio proved nearly impossible. The long-term trend of suburbanization coupled with the white flight that often accompanied desegregation orders meant that ending “racial isolation” would require massive inter-district busing. This proved extraordinarily unpopular. Endorsing such measures would have required the Supreme Court both to explicitly acknowledge the “racial isolation” rationale and to endure a major political backlash—including a possible constitutional amendment prohibiting busing to achieve racial balance. In 1974 it temporarily backed away from the “racial isolation” argument, insisting that judges could impose cross-district busing only if there was evidence that the state government or the affected suburbs had engaged in discriminatory behavior.

Over the past half century, demographic change has made eliminating “racial isolation” even harder. Today, fewer than half of all public school students are non-Hispanic white. Over the next decade, the proportion of Anglos in public schools is expected to decline to 45 percent, while the share of Hispanics grows to 29 percent. In the West, Hispanics already outnumber Anglos 42 percent to 38 percent. During the first decade of the 21st century, the student bodies of the 20 largest school systems in the country were, on average, 20 percent Anglo, 38 percent Hispanic, 32 percent African American, and 9 percent Asian. In 2017 the percentage of white students was 7 percent in Los Angeles and Miami-Dade County; 5 percent in Dallas; 8 percent in Houston; 2 percent in Detroit; 12 percent in Chicago; 14 percent in San Francisco and Philadelphia; 15 percent in Boston; and 16 percent in New York City. Further complicating these calculations is the fact that a growing share of students—today about 6 percent—label themselves “interracial.” In the 1960s and 1970s, the implicit goal of desegregation plans was to make virtually all schools majority white. But today that is out of the question in many parts of the country.

From Racial Balance to Education Quality

Recognizing the futility of trying to end “racial isolation,” many judges refocused on other techniques for improving educational opportunity. For example, Judge Arthur Garrity concluded that Boston’s entire public school system was inadequate. He rejected the NAACP’s proposed plan because it failed to address the system’s many flaws. The special master he appointed to formulate a remedial plan asked, “What the hell is the point in desegregation if there are no good schools?” During the remedial phase of litigation in Reed vs. Rhodes, the Cleveland case, Judge Frank Battisti became alarmed at the “inferior education being meted out to those who were the victims of discrimination.” He devised remedies to address “educational testing, reading programs, counseling, extracurricular activities, and relations with universities, businesses and cultural institutions.” In 1977 the Supreme Court upheld an order requiring Detroit to establish new magnet and vocational schools as well as “in-service training for teachers and administrators, guidance and counseling programs, and revised testing procedures.” Such reforms, the court claimed, would “restore the victims of discriminatory conduct to the position they would have enjoyed” had public officials not acted unconstitutionally.

The most extensive effort to improve the quality of education in schools deemed “dual” by federal judges came in Kansas City, Missouri. Judge Russell Clark explained that the “long term goal of this court’s remedial order is to make available to all [Kansas City] students educational opportunity equal to or greater than those available” to the average student in suburban schools. To accomplish this, Clark overhauled the entire school system, turning each city high school into a magnet school with a special theme, ranging from science and math to classic Greek and agribusiness. By 1995 Kansas City was spending more than any comparable school system in the country. The cost of these court-ordered reforms was about $2 billion, most of which came from the state of Missouri and the rest from tax increases mandated by the court. Unfortunately, as Joshua Dunn shows in Complex Justice: The Case of Missouri v. Jenkins, the court’s plan never came close to working. Both the number of white students in city schools and the test scores of Kansas City students continued to decline. Eventually, Black parents revolted against the court’s plan, reinstituting more traditional neighborhood schools.

By the late 1970s, preliminary evidence from school districts undergoing desegregation had begun to trickle in. Reviews of these studies, including a major assessment conducted by the National Institute of Education (NIE), found small improvements in reading by Black students in districts undergoing desegregation, but no change in mathematics. The director of the NIE project found “the variability in effect sizes more striking and less well understood than any measure of central tendencies”—not surprising, given the wide variety of desegregation plans. Thirty years later Stanford professor Sean Reardon and his co-authors wrote, “It remains unclear if, and to what extent, school racial segregation affects student achievement.”

What Works?

Over 50 years ago the Supreme Court demanded that school districts that had engaged in unconstitutional discrimination “come forward with a plan that promises realistically to work.” But it never explained what it means for a plan “to work.” In 2006, 553 social scientists signed an amicus brief in support of Seattle’s effort to use racial assignments to promote diversity in its schools. “Racially desegregated schools,” they warned, “are not an educational or social panacea and the extent of benefits will depend on how desegregation is structured and implemented.” As readers of Education Next realize, in school reform, the devil is always in the details.

In his 2019 book Children of the Dream: Why School Integration Works, economist Rucker C. Johnson analyzed longitudinal studies extending back to the 1960s and found a strong, positive long-term relationship between the number of years Black students spend in a desegregated school and their total years of educational attainment, adult wages, and health status. Similarly, he found an inverse relationship between number of years spent in a desegregated school and future incarceration and poverty rates. He attributes these beneficial outcomes to two shifts accompanying desegregation: “sharp increases in per-pupil spending” and “significant reductions in the average class sizes experienced by black children.” These changes were particularly important in the South, where for years Black schools were notoriously underfunded. Johnson found that money mattered much more than Black-white student exposure. That is, where resources increased significantly but exposure did not, students did well. Conversely, “in court-ordered desegregation districts in which school spending for black children did not appreciably change, however, although the children experienced greater classroom exposure to their white peers, they did not make a comparable improvement in their educational and socioeconomic trajectories.”

In 2022 Garrett Anstreicher, Jason Fletcher, and Owen Thompson used a similar analytic technique to analyze a larger sample of students experiencing desegregation. They found “qualitatively quite large” positive effects in the South but “no substantive effects outside of the South.” They suggested that the “impactful legacy” of desegregation efforts “lies in their systematic dismantling of the overtly segregated educational systems that prevailed in the Jim Crow South.” The “distinct paucity of effects outside the South,” in contrast, indicates “the limitations to the efficacy of legally imposed integration initiatives in certain settings.” These findings are not surprising, but they highlight the hazards of equating the legal segregation of the Jim Crow South with the “racial isolation” one finds in virtually every big city today.

In the 1960s and 1970s, judges and educational “experts” could be forgiven for believing that adjusting the racial balance of schools by itself would produce substantial education benefits. Almost no one believes that today. Over the past half century, we have substantially reduced fiscal inequities between rich and poor school districts; we have improved the quality of education provided to English learners and students with disabilities; we have created programs to improve nutrition and health care for students from poor families; we have taken a variety of steps to identify and improve substandard schools. Yet “equal educational opportunity” continues to elude us. And Covid shutdowns seem to have wiped out several decades of progress.

As school officials continue to wrestle with these difficult issues, the Supreme Court is likely to further limit the explicit use of race in assigning students to schools and to classrooms. On the one hand, it is hard to see how race-based “affinity” classes can long survive judicial scrutiny. On the other hand, the ease with which southern school officials delayed desegregation in the 1950s and 1960s indicates how difficult it will be for Asian American parents and students to invoke the colorblind argument to challenge changes in exam-school criteria. Manipulating admissions and assignment rules to get the right racial result is usually easy; proving invidious intent is usually hard. Moreover, the court’s colorblind interpretation of the Equal Protection Clause and the Civil Rights Act does not place any restrictions on the use of socioeconomic criteria to promote diversity in schools at any level.

The history of Brown shows that, under the right circumstances, court-based reform can bring about substantial change in education, both directly through court orders and indirectly by spurring other government institutions into action. But the federal judiciary’s inability to specify what “desegregation” means, why we want it, and what school districts must do to achieve it led us down many dead ends. The best way to honor Brown is to forsake heated, ideological arguments about what the decision “really means” and to focus instead on the concrete steps that evidence has shown to improve the quality of education we provide to minority students.

R. Shep Melnick is Thomas P. O’Neill Jr. Professor of American Politics at Boston College and author of The Crucible of Desegregation: The Uncertain Search for Educational Equality (University of Chicago Press, 2023).

Soon, however, the U.S. Supreme Court will decide two cases that could dramatically curtail rulemaking by OCR as well as federal agencies that oversee such areas as health care and the environment. Both cases, Loper Bright Enterprises v. Raimando and Relentless, Inc. v. Department of Commerce, involve regulatory burdens imposed on the fishing industry. Both challenge what is known as the Chevron doctrine, which originated from the 1984 case Chevron v. Natural Resources Defense Council. In that case, the high court ruled that judges should defer to agencies’ interpretations of ambiguous federal statutes. Agencies, the court maintained, have expertise that generalist judges do not, so deferring to agencies promotes consistent application of statutes. Under Chevron, guidance documents are not supposed to be accorded the same level of deference as regulations that have gone through the formal rulemaking process required by the APA, but courts have often treated guidance issued by OCR as if it were settled law. OCR has in turn pointed to judicial opinions to justify extending its authority via new “clarifications,” to which courts have then deferred. As Melnick argued, this leapfrogging has allowed OCR to construct a thicket of rules far removed from the actual text of the laws it is supposed to be clarifying for colleagues.

Critics of Chevron have long maintained that it empowered agencies to make law, not just apply it, and that it compromised the judiciary’s authority to interpret the law. The conflict in Loper and Relentless originated with a rule created by the National Marine Fisheries Service (NMFS) requiring fishing operators off the coast of New England to transport and house federal inspectors—and to pay their salaries. However, NMFS had previously covered the costs of these inspectors, who collect data to prevent overfishing, and Congress had never explicitly authorized charging operators for these expenses. Herring boat operators, including Loper and Relentless, are especially burdened by this new rule because they keep their boats at sea for lengthy periods of time. Lower courts upheld the agency’s authority, saying that it constituted a reasonable interpretation of the law.

During oral argument in the two cases in January, the six justices in the conservative bloc seemed inclined to overturn Chevron on the grounds that the doctrine is unworkable and threatens the stability of the law. Justice Brett M. Kavanaugh noted that Chevron “ushers in shocks to the system every four or eight years when a new administration comes in.” The court’s liberal wing of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson cautioned against overturning the longstanding precedent.

If the court does not overturn Chevron, a majority will almost certainly limit the doctrine—and either action would signal that the court wants to curtail policy freelancing on the part of federal agencies. If policies that have gone through the rulemaking process do not deserve judicial deference, then DCLs that appear almost ex nihilo should receive even less respect. And if the court emphasizes Kavanaugh’s concern, OCR would be well-advised to focus on creating consistency rather than imposing wholesale revisions—unmoored from the language of statutes—with each new administration. Kavanaugh easily could have cited the office’s oscillating DCLs as Exhibit A for “shocks to the system.” The Obama Administration’s 2011 DCL on sexual misconduct, which Harvard Law School’s Jacob Gersen and Jeanie Suk Gersen criticized for stripping students of due process rights and creating a “sex bureaucracy,” was rescinded by the Trump Administration in 2017. Now the Biden Administration is in the process of reimposing it. This kind of regulatory whiplash is hardly consistent with the rule of law. At a minimum, reining in the hyper-deference that courts have accorded OCR would reduce the uncertainty generated by the agency’s promiscuous use of DCLs and force it to go back to Congress if it wants to extend policies beyond the scope of existing statutes.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s Institute of American Civics at the Baker School of Public Policy and Public Affairs.

This article appeared in the Summer 2024 issue of Education Next. Suggested citation format:

Dunn, J. (2024). Fishing for Rules. Education Next, 24(3), 6-7.

Over the past 12 years, the U.S. Supreme Court has significantly buttressed the rights of religious organizations to control how they govern themselves and to not be excluded from public programs simply because they are religious. The court’s Free Exercise Clause decisions have declared that religious institutions have substantial autonomy in deciding whom to hire (and fire) under the “ministerial exception,” that they cannot be barred from participating in adoption programs because of government nondiscrimination policies, and that they cannot be deprived of otherwise available benefits because of their religious beliefs and practices. Considering these doctrinal developments, one would think that states would be careful about religiously based discrimination. But as two recent lawsuits from Colorado show, one would be wrong.

In 2022, the Colorado legislature passed one of Governor Jared Polis’s signature initiatives: a universal preschool program. The program, which went into effect in 2023, provides up to 15 hours of state-funded tuition at participating preschools, including private providers. However, the Colorado Department of Early Childhood required all preschools wishing to participate in the program to sign a “program service agreement” forbidding discrimination based on “gender, race, ethnicity, religion, national origin, age, sexual orientation, gender identity, citizenship status, education, disability, socio-economic status, or any other identity” and prohibiting “deliberately misusing an individual’s preferred name, form of address, or gender-related pronoun.” This led a coalition of Catholic, Protestant, and Jewish organizations to request an exemption from the nondiscrimination requirements, since the rules would compel these organizations to abandon their religiously based policies regarding sexual orientation and gender identity. Lisa Roy, the agency’s executive director, denied their request, contending that the anti-discrimination provisions were mandated by state law.

Two lawsuits immediately followed. The Darren Patterson Christian Academy in Buena Vista sued in June 2023, followed in August by the St. Mary Catholic Parish, the St. Bernadette Catholic Parish, the Archdiocese of Denver, and two Catholic parents. Both suits are likely to succeed.

Darren Patterson was granted a preliminary injunction in October 2023 by federal Judge Daniel Domenico, a Trump appointee, based on several constitutional claims. The school first argued that the state’s policy would interfere with its right to hire only teachers who share its Christian faith. Under the Supreme Court’s ministerial exception doctrine, outlined in Hosanna Tabor v. EEOC (2012) and Our Lady of Guadalupe School v. Morrissey-Berru (2020), the school is entitled to hire only teachers who agree with their statement of faith. The school also argued that, under Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), the First Amendment protects its right as an expressive association not to be forced to associate with those who disagree with their views. What’s more, the school claimed that the program was not neutral toward religion, since it allowed exemptions for other reasons in order to insure a “mixed delivery system”—that is, one that includes a variety of preschool providers. Moreover, the school contended, the state policy would violate 303 Creative, LLC v. Ennis from the Supreme Court’s last term, which held that “the government may not compel a person to speak its own preferred messages.”

While Domenico said Darren Patterson was likely to succeed on all these claims, the school’s strongest argument was clearly grounded in Trinity Lutheran v. Comer (2017), Espinoza v. Montana (2020), and Carson v. Makin (2022). Collectively, this trilogy forbids the government from excluding religious believers from otherwise available benefits solely because of their beliefs. The state, as Espinoza held, does not have to “subsidize private education,” but once it does, “it cannot disqualify some private schools solely because they are religious.” To do otherwise constitutes unconstitutional discrimination under the Free Exercise Clause. Whatever happens with the other claims as the case makes its way through the courts, it is difficult to see how the state’s policy can overcome this one.

The lawsuit by the Catholic plaintiffs largely mirrors the free-exercise claims made by Darren Patterson. In particular, they point out that “the Archdiocese’s consistent position has been that those who teach in its schools and participate in its faith communities must be open to and supportive of the Catholic Church’s teachings,” including those on “the human person and sexual identity.” Under the state’s policy, it is clear that the Catholic schools’ participation is forbidden, but their exclusion, once again, would appear to contradict the court’s reasoning in Comer, Espinoza, and Makin. Before the case went to trial in January 2024, district-court Judge John Kane ruled that the schools were separate legal entities and that they, along with the parents, could allege harm as plaintiffs—though he dismissed the Archdiocese for lack of standing. Kane is a Carter appointee with a politically eclectic record who is likely less inclined to agree with the plaintiffs’ claims. During the trial, for instance, he referenced Pope Francis’s allegedly evolving positions on sexual ethics but then acknowledged that it was inappropriate for him to question the “authenticity” of the plaintiffs’ beliefs, an equivocation the plaintiffs probably did not find reassuring.

These cases likely foreshadow future conflicts over school choice in Colorado and nationally and will give some indication of how the Supreme Court’s decisions related to religious practice and speech will be applied by lower courts. Colorado has long been a leader in the charter-school movement. The outcomes of these cases could inspire charter-school advocates to test whether the court’s decisions require the state to allow the creation of religious charter schools as Oklahoma has now done. Following the court’s decision in Makin, it was obvious that blue states would try to use nondiscrimination policy to justify excluding religious providers. If Colorado is told it cannot forbid religious preschools on grounds of nondiscrimination, then one can certainly expect religious groups to challenge Colorado’s current law, which requires that charter schools be “nonsectarian” and “nonreligious.” Discrimination cuts both ways.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s Institute of American Civics at the Baker School of Public Policy and Public Affairs.

This article appeared in the Spring 2024 issue of Education Next. Suggested citation format:

Dunn, J. (2024). School Choice for Me but Not for Thee. Education Next, 24(2), 6-7.

Immediately following the announcement of the Supreme Court’s decision outlawing the use of race in college admissions (see “High Court Decision in College Admissions Case Has K-12 Implications”), the Biden Administration released a U.S. Department of Education plan to “promote educational opportunity and diversity in colleges and universities.” It includes forthcoming guidance to higher education institutions on how to use still-lawful practices to promote diversity, particularly new “measures of adversity” that consider what applicants may have had to overcome. The department also will consider expanding data collections and transparency around admissions factors and convene an “educational opportunity” summit to bring colleges and universities together with students, advocates, and researchers to discuss a way forward.

That’s all well and good, but it’s worth noting what was left off the department’s laundry list: anything having to do with k-12 education. That’s a huge missed opportunity and one that the administration should urgently work to address. One of the most effective ways to boost college diversity is by building broader, more inclusive paths to educational excellence. And that work starts in kindergarten.

Imagine if, instead of or in addition to looking at adversity and other proxies for race, our nation dedicated itself to creating a more diverse pipeline of high-school graduates with the ability to do advanced-level work. Imagine a world where college admissions offices didn’t rely on loopholes and complicated backdoor policies to create diverse student populations. Imagine that the top high-school students in the United States were already racially and socioeconomically representative of our great nation—without the need for affirmative action of any kind.

A Stubborn Gap in “Excellence”

Sadly, we are a long way from that today. On virtually any measure, there’s an “excellence gap” among students coming out of 12th grade. Students reaching the highest levels of performance—whether measured by test scores, grade-point average, or the number of Advanced Placement courses—are more likely to be Asian or white than Latino or Black. This excellence gap means that white and Asian teenagers are disproportionately represented among the top 10 percent of U.S. students, while Latino and Black students are significantly underrepresented.

Closing this gap will not be easy. It is related to a complex mix of social and historical conditions, including the impact of centuries of systemic racism, sharp socioeconomic divides between racial groups, and big differences in school experiences, family structures, and parenting practices. But frankly, as a nation, we’ve never really given it the “old college try.” If we focused on what schools can do to recognize and nurture excellence in all students, instead of just trying to work around the gaps at the end of their high-school careers, we could make significant progress toward the inclusive college campuses we all want to see.

That’s the message from an important new report from the National Working Group on Advanced Education, an ideologically and racially diverse set of scholars, policymakers, and practitioners convened by the think tank that I lead. Its most important message: Rather than wait until kids are leaving high school to try to even the playing field, we must start in kindergarten to identify the most academically talented students of all races and backgrounds and give them the support they need to excel.

The working group makes three dozen recommendations for states, schools, districts, and charter networks, with specific opportunity-building actions that start in the earliest grades and continue through high school. It is a clear roadmap for building this wider, more diverse pipeline of advanced students.

The first step is called “frontloading,” a type of enrichment provided to young children before they are old enough to be assessed for advanced learning opportunities like gifted and talented programs. Because poor children tend to come to school with limited vocabulary and less knowledge about the world compared to their more affluent peers, they typically earn lower scores on most traditional academic assessments—even if they have the intellectual horsepower to take on rigorous academic work. High-quality enrichment programs can help young students build knowledge and vocabulary to improve their reading skills and get them on the path to success.

The next step is to use “universal screening” to find every single child who could benefit from enrichment, acceleration, and other advanced learning opportunities. Schools and districts can use valid and reliable assessments—such as IQ tests, diagnostic exams, or state achievement tests—to identify all kids with the potential to do advanced-level work. That’s a big change from how many school districts do things today, which is to ask parents or teachers to nominate children for their gifted programs (or later, Advanced Placement courses). It’s not hard to see how that approach can bring with it racial and socioeconomic biases. Affluent, college-educated parents tend to be more aware of these programs and know how to advocate for their kids. And classroom teachers, however fair-minded, might overlook some talented students because they don’t fit a stereotype of a high achiever.

Opportunity Starts in Elementary School

Once students are identified as highly capable, they need the programs and opportunities that can help them realize their potential. School-based programs that do this can take many forms, but most share several key features: They allow students to study and engage with academic materials more broadly and deeply than the typical class, including doing above-grade-level work. They allow students to skip an entire grade if that’s what a child needs and can handle. And once students get to middle and high school, they automatically are enrolled in honors and Advanced Placement classes. In other words, no more gatekeeping that tends to dissuade kids on the bubble from giving these tougher classes a shot.

Doing this work and doing it well will take leadership and commitment from district and charter network leaders. Educators will have to view greater equity in education as crucial—and not just for their lowest-achieving students, but also for their highest-achieving ones. They will have to reexamine how a student’s potential is measured, and when. And they will have to focus on supporting more students to excel, including by looking closely at how students are identified to participate in advanced coursework and enrichment programs. The absolute worst thing schools could do is to eliminate advanced learning opportunities, like gifted and talented programs or honors classes, which have disproportionate white and Asian enrollments that mirror the “excellence gap.” True equity demands that we mend, rather than end, such programs—and extend these opportunities to many more kids.

Universities might object that there’s not much they can do about k–12 educational practices. But that’s simply not true. Institutions of higher education can make sure that their schools of education prepare future teachers and school leaders to recognize and serve every student who can do advanced-level work, especially students from low-income families. And universities can lend their expertise and money to local school districts and charter networks that need assistance in putting these kinds of initiatives in place.

The Biden Administration should widen its action plan to include the k-12 system. Starting in kindergarten isn’t the fastest way to college diversity, but it is probably the sturdiest.

Michael J. Petrilli is president of the Thomas B. Fordham Institute, visiting fellow at Stanford University’s Hoover Institution, and an executive editor of Education Next.

This article appeared in the Fall 2023 issue of Education Next. Suggested citation format:

Petrilli, M.J. (2023). Building Diverse College Campuses Starts in Kindergarten: In the wake of the Students for Fair Admissions decision, an urgent call to take on the “excellence gap.” Education Next, 23(4),

The 20th century witnessed an astonishing growth in presidential power, leading some to contend that the office had become “imperial,” dominating other branches of government. President Biden’s decision in 2022 to forgive more than $350 billion in student loan debt—an action taken on the basis of statutory authority that was, at best, unclear—gave critics of the imperial presidency another reason to worry.

During the 2020 presidential campaign, Biden promised to waive up to $10,000 in federal student-loan debt. When he did so in August of 2022, the amount increased to $20,000 for Pell Grant recipients but was limited to $10,000 for all others. To qualify, in either 2020 or 2021 the adjusted gross income for individuals had to be less than $125,000 and for married couples less than $250,000. The legal authority on which Biden relied to justify the action was the Higher Education Relief Opportunities for Students Act of 2003, also known as the HEROES Act. The Act, which was passed in the wake of the September 11, 2001, terrorist attacks, allows the Secretary of Education to “waive or modify any statutory or regulatory provision . . . as may be necessary to ensure that” borrowers affected by a national emergency “are not placed in a worse position financially.” It defined the individuals who could qualify for relief as those serving on active duty or in the national guard during a war or other military operation, those living or working or is employed in an area that is declared a disaster area by a federal, state or local government, or those who have “suffered direct economic hardship as a direct result of a war or other military operation or national emergency.”

Previously, in response to the Covid-19 pandemic, the Trump administration had suspended student loan repayments, a policy Biden continued while unsuccessfully seeking Congressional passage of loan forgiveness. Indeed, prior to Biden’s action, it was difficult to find many people who thought the president had the authority to cancel debt unilaterally without a new act of Congress. For instance, in July of 2021, when asked about student loan forgiveness, Speaker of the House Nancy Pelosi said, “The president can’t do it. So that’s not even a discussion. Not everybody realizes that. But the president can only postpone, delay, but not forgive.” The “discussion” that nonetheless ensued ultimately led to oral argument before the Supreme Court February 28, 2023, in two cases, Biden v. Nebraska and Department of Education v. Brown, that challenged the Biden administration’s decision.

The first was brought by six Republican state attorneys general. They contended that Biden had exceeded his authority under the HEROES Act and that the plan was created in violation of rulemaking procedures that federal agencies are supposed to follow. A federal district court judge, Henry Autrey, initially dismissed the case, saying that states lacked standing to sue. But a three-judge appellate panel in the 8th Circuit overturned that decision and granted an emergency injunction pausing the program. The Supreme Court then accepted a Biden Administration request to hear the case on expedited schedule.

The second case was brought by two student-loan borrowers. Myra Brown did not qualify for relief under the program because her loans were held by commercial lenders. Alexander Taylor did not qualify for $20,000 of relief because he did not receive Pell Grants. Both argued that it was “irrational, arbitrary, and unfair” for their debt to not be forgiven too. A district court judge, Mark Pittman, ruled that the program was unlawful. When the 5th Circuit Court of Appeals refused to pause that ruling, the Supreme Court agreed to hear the case on an expedited schedule as well.

At oral argument, the justices spent significant time discussing whether the states or the students had standing. The best hope for the Biden Administration to prevail would be for some of the court’s conservatives to join with the liberal bloc to declare that none of the plaintiffs had a right to sue. For plaintiffs to have standing, they must show a “concrete harm” or “injury in fact.” Some of the conservative justices, such as Justice Barrett, appeared sympathetic to the claims that some of the plaintiffs could not meet that standard. But overall, the justices seemed skeptical about accepting the consequences of adopting that position. Chief Justice Roberts captured that skepticism when he said to Solicitor General Elizabeth Prelogar, who was defending the policy for the Biden Administration, that her view means “that the President can act unilaterally” and therefore “there was no role for Congress to play in this either, and at least in this case, given your view of standing, there’s no role for us to play in this — in this either.” This outcome seemed antithetical to principles of separation of powers and the ability of each branch of government to check abuses of power by the others to Roberts. As well, Prelogar acknowledged under questioning by Justice Alito that as long as the court finds that any party in either of the cases has standing that the court could decide both cases on the merits. Since standing doctrine is relatively flexible, it seems likely that the court will decide that at least one of the two students or one of the six states does in fact have standing.

If the court’s conservatives do reach the merits, enough of the justices appeared unconvinced that Biden had sufficient legal authority for his action to make betting on the program’s survival unwise. Most importantly, there seemed to be a consensus that at the least the policy should fall under the major questions doctrine. Just last term, the court used that doctrine to strike down the Environmental Protection Agency’s Clean Power Plan in West Virginia v. EPA. The doctrine says that if an agency wants to decide an issue of extraordinary economic or political significance, the agency must be able to point to Congressional authorization that is clear and specific rather than merely vague. Even Justice Sotomayor said that the significant sum involved in forgiving the loans “seems to favor the argument that this is a major question.” Prelogar tried to argue that the doctrine should only apply to exercises of regulatory authority by an agency while this was merely a “benefits program” which allegedly has a lower threshold of “liberty interests” for citizens. That distinction did not seem to gain any traction.

Justice Thomas pointed to another concern. Canceling the debt was “in effect . . . a grant of $400 billion,” he noted, which seemed to him to run “head long into Congress’s appropriations authority.” Other justices seemed skeptical that even if the program could be created that it could be done so outside of normal notice-and-comment rulemaking where the public has an opportunity to weigh in on the effects of the decision. Prelogar argued that Congress had exempted the HEROES Act from those requirements, but Justice Kavanaugh seemed to think that outside of ordinary rulemaking it would be impossible for the Secretary of Education to factor in all the “big winners and big losers” created by loan forgiveness.

Those “winners and losers” also troubled Chief Justice Roberts, who raised questions about the fairness of the program. Some people might have worked hard during college to avoid taking out loans while others did not, but only the latter would rewarded. Roberts also mentioned a hypothetical landscape-business owner who didn’t go to college but who borrowed money to start a business. His debt was not forgiven, and his tax dollars were spent to subsidize the college graduates. At one point, the chief referred to the loan forgiveness as a “half trillion” dollar action. To Roberts this reinforced that this kind of decision should be left to Congress, since “we like to usually leave situations of that sort, when you’re talking about spending the government’s money, which is the taxpayers’ money, to the people in charge of the money, which is Congress.”

Overall, the broad concerns about executive power likely point to a loss for the Biden Administration. Justice Kavanaugh, for instance, said that “some of the biggest mistakes in the Court’s history were deferring to assertions of executive emergency power” while “some of the finest moments in the Court’s history were pushing back against presidential assertions of emergency power.” One could even imagine a majority agreeing that the policy was unlawful but not agreeing on the reasons why, which would still mean a defeat for the Biden Administration.

The administration tried to turn the focus back to the beneficiaries of the debt relief, with Secretary of Education Cardona issuing a post-argument statement about “the crushing burden of student debt for millions of working families.” The court may tell those families, essentially, that if they want loan forgiveness, they will need not only to elect a sympathetic president such as Biden, but also to install a Congress that is willing to authorize the expenditure in a more explicit way than was done by the HEROES Act of 2003. Those concerned about the imperial presidency would welcome that result.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

This article appeared in the Summer 2023 issue of Education Next. Suggested citation format:

Dunn, J. (2023). The Imperial Presidency Meets Student Debt: Supreme Court skeptical of Biden’s unilateral loan forgiveness. Education Next, 23(3), 6-7.

In June 2022, the U.S. Supreme Court held in Carson v. Makin that Maine violated the Free Exercise Clause of the First Amendment by excluding religious schools from a private-school-choice program—colloquially known as “town tuitioning”—for students in school districts without public high schools. Writing for the majority, Chief Justice John Roberts concluded that “the State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

Carson was, in some ways, unremarkable. For the third time in five years, the court held that the Constitution prohibits the government from excluding religious organizations from public-benefit programs, because religious discrimination is “odious to our Constitution.” But the fact that Carson was not groundbreaking does not mean that it is not important. On the contrary, Carson represents the culmination of decades of doctrinal development about constitutional questions raised by programs—including parental-choice programs—that extend public benefits to religious institutions. Among the most important of these questions is whether there is “play in the joints” between the First Amendment’s religion clauses—the Free Exercise Clause and the Establishment Clause—that might permit government discrimination against religious institutions in some situations. Going forward, the answer in almost all cases is likely to be no. Both clauses, the court has now made clear, require government neutrality and prohibit government hostility toward religious believers and institutions. (The court clarified—but did not overturn—its 2003 decision in Locke v. Davey. In that case, the justices upheld, by a vote of 7–2, a Washington State law prohibiting college students from using a state-funded scholarship to train for the ministry; that law, the court ruled, did not violate the Free Exercise clause. Arguably, Carson narrows and effectively confines Locke to its facts by characterizing it as advancing only the “historic and substantial state interest” against using “taxpayer funds to support church leaders.”)

Carson does, however, leave at least two important questions unanswered. The first concerns the decision’s scope. The holding makes explicit that “a State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Carson is silent, however, on what it means for the government to “subsidize private education.” In particular, it leaves unanswered the question of whether the nondiscrimination mandate applies to charter schools, which are privately operated but designated “public schools” by law in all states—and supported by tax dollars. Does the Free Exercise Clause require states to permit religious charter schools?

The second question concerns which regulations states may lawfully impose as a condition of participation in private-school-choice programs. Right after the court issued its decision, for example, Maine’s attorney general, Aaron Frey, clarified that all private schools taking part in the program, including religious schools, are bound by the Maine Human Rights Act, which prohibits discrimination on the basis of sexual orientation or gender identity. As a result, while Carson opened the door for religious schools to participate in the tuition-assistance program, many declined to do so because of the tension between the non-discrimination mandate and their religious commitments. Carson says nothing about whether such non-discrimination mandates—or other regulations that some faith-based schools may find objectionable on religious grounds—are constitutionally permissible.

Understanding Carson

In rural Maine, many small school districts have no high school. Since 1873, the state has given these districts the option of permitting residents to use public funds to attend private schools. Students could use these funds at religious schools until 1980, when the state decided that the Establishment Clause prohibited the practice. At the time, this conclusion was defensible: The Supreme Court’s existing Establishment Clause doctrine could be interpreted to prohibit students from using public funds at religious schools. Beginning in the 1980s, however, the court shifted course and began rejecting challenges to programs aiding religious-school students. When the exclusion of religious schools from the tuition-assistance program was first challenged in 1996, it remained unclear whether the constitution permitted, let alone required, Maine to permit participating students to attend religious schools. (I was one of the lawyers who filed that first challenge, Bagley v. Town of Raymond. We lost on establishment-clause grounds.)

In 2002, in Zelman v. Simmons-Harris, the Supreme Court upheld a voucher program enabling disadvantaged children in Cleveland to attend religious schools. The court concluded that the program did not violate the Establishment Clause for two reasons. First, it was “religion neutral,” giving students the option of attending either secular or religious schools. Second, religious schools benefited only indirectly, as the result of parents’ independent choices.

Zelman clarified that states could include religious schools in private-school-choice programs but was silent about whether they could choose not to, as Maine continued to do. The answer to this question unfolded in three recent cases. Trinity Lutheran Church v. Comer (2017) held that Missouri unconstitutionally excluded a religious preschool from a playground resurfacing program. Espinoza v. Montana (2020) found that the Montana Supreme Court violated the Free Exercise Clause by invalidating, on state-constitutional grounds, a private-school-choice program because it included religious schools. And finally, Carson rejected the argument that there is a constitutionally relevant distinction between discrimination based on the religious character (or status) of an institution and discrimination motivated by a desire to avoid spending public funds on religious conduct (for religious use). In Carson, this so-called “status-use” distinction undergirded the argument that Maine was not discriminating against schools for being religious, but rather because they taught religion. Carson clarifies that the court has “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination. This clarification by the court is important. Since integrating religious and secular instruction characterizes schools in many faith traditions, asking them to stop teaching religion is tantamount to asking them to stop being religious.

Religious Charter Schools

Carson has few immediate implications for existing private-school-choice programs. Thirty-one states, D.C., and Puerto Rico each have one or more such programs, and only two states—Maine and Vermont—ever excluded religious schools. In the medium term, however, the Carson decision may open the door to (and certainly will prompt litigation about) religious charter schools. Here’s why: Carson makes clear that states choosing to fund private education must extend benefits to religious schools. And, although Carson does not address the question of religious charter schools, if charter schools are constitutionally analogous to private schools then—as one state attorney general recently concluded—charter-school laws prohibiting religious charter schools (as all such laws do) are unconstitutional.

This question has enormous implications for education policy, since charter schools command a sizable portion of the K–12 market. While the private-school-choice movement has gained tremendous momentum in recent years, only just over 700,000 students—about 1.3 percent of all K–12 students or 15 percent of all private-school students—participated in a private-school-choice program in 2021–22. In contrast, charter schools, which are authorized in 44 states and D.C., educate nearly 3.5 million students (7 percent of all public-school students). Charter schools are privately operated but universally designated by law to be “public schools.” All state charter laws require charter schools to be “secular”; many prohibit religious institutions from operating them at all.

The constitutionality of laws prohibiting religious charter schools was in question before Carson. Indeed, Justice Stephen Breyer flagged the issue in dissent in Espinoza, asking, “What about charter schools?” He reiterated his question in his Carson dissent: “What happens once ‘may’ becomes ‘must’? . . . Does it mean that . . . charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

The answer turns on a legal doctrine unrelated to religion, known as the “state action” doctrine. Under this doctrine, privately operated entities are not bound by the federal Constitution except when their actions are effectively the government’s actions. The state-action question is pivotal, because the Supreme Court has made clear that the Establishment Clause requires government actors, including district public schools, to be secular. Thus, if charter schools are state actors, state laws requiring them to be secular are not only constitutionally permissible, but also constitutionally required. On the other hand, if charter schools are not state actors, then states, after Carson, not only may permit religious charter schools but also must. That is to say, if charter schools are, for federal constitutional purposes, private schools, then charter-school programs are programs of private choice, and states cannot prohibit religious schools from participating in such programs.

Charter schools are, by design, distinct from district schools. Most importantly, they are privately operated and exempt from many public-school regulations. But are they different enough from district schools to be treated, for federal constitutional purposes, as private schools? The answer is far from straightforward. The Supreme Court has articulated a number of factors to determine whether a private institution is a state actor. These include whether it is performing a function that has been “traditionally the exclusive prerogative of the State”; whether the government controls it to such a degree that it is a governmental agent; and the degree of interdependence (or “entwinement”) between the government and the private actor. The overarching inquiry is whether there is a “sufficiently close nexus between the state and the challenged action to attribute the action to the government.” As the Supreme Court has observed, “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”

It is easier to explain which attributes of charter schools do not make them state actors than to explain which ones might: First, they are not state actors, because they are schools. Education obviously is not “traditionally the exclusive prerogative of the state,” since millions of children are—and have long been—educated in private schools or at home. Second, the fact that the law calls them “public schools” does not automatically mean they are state actors. The Supreme Court has held that legal categorization of an entity as public or private is not dispositive of the state-action question. Third, the fact that state laws enable their creation does not necessarily make them state actors. After all, most private schools (as well as most charter schools) are operated by private corporations, which do not exist before a state grants their corporate charter. Clearly, issuing a corporate charter to a private corporation does not make it a state actor. Fourth, they are not state actors simply by virtue of being regulated and funded by the government. In Rendell-Baker v. Kohn (1982), the Supreme Court found that a private school was not a state actor even though it was heavily regulated by, and received more than 90 percent of its funds from, the government. “The school,” the court observed, “is not fundamentally different from many private corporations whose business depends on [government] contracts. Acts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts.”

Federal courts are divided on the state-action question. In 2010, the U.S. Court of Appeals for the Ninth Circuit held that an Arizona charter school was not a state actor in a lawsuit challenging a teacher’s termination as a violation of the 14th Amendment’s due process clause. The court rejected the claim that charter schools’ legal designation as “public schools” controlled the state-action question and found an insufficient nexus between the state and the school’s decision to fire the teacher, concluding that the termination was the purely private action of a private corporation. In contrast, earlier this year, the U.S. Court of Appeals for the Fourth Circuit held that North Carolina charter schools are state actors in a case alleging that a classical charter school’s dress code, which requires girls to wear skirts, violates the 14th Amendment’s equal protection clause. The majority’s opinion turned on several factors, including the degree of public funding and the fact that North Carolina law calls charter schools “public” schools. The majority also said that the state had delegated its constitutional obligation (to provide public education) to charter schools. Several judges vigorously dissented, arguing that the majority opinion adopted an expansive definition of state action that is inconsistent with Supreme Court precedent.

No court has yet considered the question of whether the First Amendment permits and/or requires states to authorize religious charter schools, although litigation is undoubtedly on the near horizon. In December 2022, the attorney general of Oklahoma, John O’Connor, issued an opinion letter finding that provisions of state law prohibiting charter schools from being operated by or affiliated with religious organizations and requiring them to be “nonsectarian” in all operations likely violates the First Amendment. Having found that charter schools are not state actors, he concluded that “the State cannot enlist private organizations to ‘promote a diversity of educational choices,’ and then decide that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.” Although an attorney general’s opinion does not have the same legal standing as a court opinion, the state will permit religious charter schools for the time being.

Charter schools defy easy categorization, and it could be years before the Supreme Court weighs in on the issue (although a petition asking the court to review the Fourth Circuit’s decision is pending currently). It is also possible that, given variations in the ways they are regulated, charter schools may be state actors in some states, where they are more closely controlled by states or school districts, but not in others, where they enjoy significant operational autonomy. That said, it is my view that, in most states, charter schools are not state actors. If that is right, then charter schools are essentially programs of private-school choice, which Carson holds not only may permit religious charter schools but must permit them. That does not mean that religious schools must, should, or will seek authorization to operate as charter schools. Many may reasonably decide not to, especially in states with robust private-school choice. Indeed, a number of education reformers reacted negatively to the Oklahoma attorney general’s opinion authorizing religious charter schools; these critics raised prudential concerns about the risk of greater governmental control over charter schools than schools participating in private-school choice programs. I share many of their concerns and embrace their support for expanding private-school choice. But the prudential question of whether religious organizations should operate charter schools is not the same as the legal question of whether the Constitution gives them the right to do so—and a strong case can be made that it does. That case likely will be tested in court sooner or later.

The Regulatory-Strings Question

A second question left unanswered in Carson concerns the range of regulations that can be constitutionally imposed on participants in choice programs. Carson prohibits states from requiring schools to secularize as a condition of participation in a funding program, but there are many other regulations that schools might object to on freedom-of-religion grounds. Maine reminded schools about the state’s nondiscrimination requirements, which led many religious schools to decline to participate. Thus far, no school has challenged these regulations.

Private schools in the United States are lightly regulated. The same is true of private schools participating in choice programs, although most states impose modest additional requirements on the latter—for example, requiring them to hire minimally qualified teachers, to administer a standardized test (but typically not the state test), and to teach certain basic subjects. A handful of programs regulate student admissions. For example, Louisiana requires schools to randomly select scholarship recipients, D.C. prohibits schools from considering religion in admissions, and Maryland prohibits schools from discriminating on the basis of sexual orientation and gender identity or expression.

Before turning to the “regulatory strings” question, it is important to note that the government undoubtedly could impose many additional regulations on private schools regardless of whether they accept public funds. Private and religious schools might object, for example, to a rule requiring them to administer the state achievement test, but such a requirement would be constitutional. States have chosen to lightly regulate private schools. I believe that choice is a wise one that respects and fosters educational pluralism. But many of the regulatory choices made by states with respect to private schools are the result of political compromise, not constitutional mandate.

This is true even of some regulations burdening religion. Under existing doctrine, the Free Exercise Clause does not prohibit regulations that incidentally burden religion, provided that they are religion neutral and “generally applicable.” The Supreme Court has explained that a law is religion neutral if it treats religious conduct and institutions at least as well as like secular conduct and institutions. For example, a nondiscrimination regulation that applied with equal force to all private schools would be religion neutral. And a regulation is generally applicable unless it includes exceptions or gives government officials discretion to grant exceptions. For example, a regulation requiring private schools to administer the state achievement test except if doing so would be unduly burdensome would not be generally applicable. If a law fails to satisfy either of these criteria, then the government must offer a “compelling interest” justifying it and demonstrate that the government cannot achieve that interest in a less burdensome way.

There are, however, regulations that the government could not directly impose on religious schools but might be able to impose as a condition of participating in a private-school-choice program—that is, in order to receive public funding. Consider, for example, employment decisions regarding teachers in religious schools. The First Amendment prohibits the government from regulating in any way religious institutions’ selection of “ministers,” a category that includes—the Supreme Court has held—teachers responsible for religious instruction and faith formation in religious schools. (Disputes about the scope of this so-called “ministerial exception” will be set aside here.) The ministerial exception is situated within the court’s broader “church autonomy” doctrine, which precludes government interference with the internal organizations of religious institutions. Regulations outside the employment context might also fall within the protections of this doctrine—for example, rules prohibiting religious schools from preferring (or limiting enrollment to) co-religionists.

It is clear that the government may not directly regulate religious schools’ employment decisions about ministers, including some teachers, through nondiscrimination law or otherwise. The same is true of other regulations that implicate church autonomy. What is not clear is whether the Constitution permits the government to accomplish indirectly what it cannot accomplish directly. Can the government condition participation in a private-school-choice program on religious schools’ waiver of their constitutional rights?

The answer to that question turns on the so-called “unconstitutional conditions doctrine.” This doctrine reflects the concern that the government might use the power of the purse as leverage to accomplish what would otherwise be unconstitutional ends. Unfortunately, the doctrine is a hopeless mess, with some cases finding it permissible to condition the receipt of a public benefit on the waiver of a constitutional right, others finding such conditions impermissible, and none satisfactorily clarifying the line between permissible and impermissible conditions.

The application of the unconstitutional conditions doctrine to private-school-choice regulations undoubtedly will be addressed in future litigation. Thus far, there has been virtually no litigation about the issue, probably because existing regulations are unobjectionable to religious schools. In January 2022, a federal district judge held that Maryland violated the Free Speech Clause of the First Amendment when it prohibited a school from expressing religious views on sexuality if the school chose to participate in a state voucher program. The decision, however, is narrow. The judge found only that the state’s restriction on the school’s expression ran afoul of the unconstitutional conditions doctrine. She took care to clarify that her decision did not address the constitutionality of the underlying regulation prohibiting discrimination against LGBT students in admissions. At this point, it is premature to make predictions about how courts will rule on other claims that the government is imposing unconstitutional conditions on participation in private-school choice programs. It is worth noting, however, that Carson itself is an unconstitutional conditions case. Although the court did not discuss the doctrine, it made clear that Maine could not condition participation on schools shedding their religious identity. This suggests that the court might view skeptically other conditions that had similar effects on schools’ ability to live out their religious mission, including perhaps regulations limiting schools’ autonomy over the employment decisions subject to the ministerial requirement.

Even if the government can legally impose regulatory conditions that burden religious freedom as a condition of participating in private-school-choice programs, there are many good reasons not to do so, including respect for religious liberty and educational pluralism. Moreover, the success of choice programs turns in part on the participation of academically strong schools. Regulations, including those that ask schools to waive religious-freedom rights, will increase the cost of participating, likely leading some good schools to opt out and leaving fewer options for participating students.

Carson was an important victory for religious liberty that promises to have wide-ranging implications, both within and outside of K–12 education. The full extent of those implications, including the answers to the two questions addressed here, remains to be seen. These questions will undoubtedly be tested in future litigation. Both seem destined eventually to wind up on the Supreme Court’s docket.

Ultimately, the two questions may intersect. To date, the regulatory conditions placed on schools participating in private-school-choice programs have—by and large—been unobjectionable to religious schools. Legislative efforts to impose conditions in tension with the faith commitments of some schools have fallen short. If, however, advocates succeed in leveraging Carson to open the door to religious charter schools, especially in states without private-school choice, regulators may respond (as they have in Maine) by imposing operational requirements that are in tension with some schools’ religious commitments. Some existing charter-school laws likely include regulations that some religious organizations would find objectionable. These rules may dissuade religious organizations from seeking authorization to operate charter schools, prompt them to pursue litigation challenging the requirements as unconstitutional conditions, or both.

Nicole Stelle Garnett is the John P. Murphy Foundation Professor of Law at the University of Notre Dame.

This article appeared in the Spring 2023 issue of Education Next. Suggested citation format:

Garnett, N.S. (2023). Supreme Court Opens a Path to Religious Charter Schools: But the trail ahead holds twists and turns. Education Next, 23(2), 8-15.

For more, please see “The Top 20 Education Next Articles of 2023.”

Today’s decision in Kennedy v. Bremerton reinforces a significant shift in the Supreme Court’s posture towards religion and education. Following the pattern established in Trinity Lutheran v. Comer, Espinoza v. Montana, and last week’s Carson v. Makin, the court is placing far greater emphasis on the Free Exercise Clause and, in the process, substantially modifying its interpretation of the Establishment Clause. In this case, the court also buttressed the speech rights of public-school employees in ways that will likely extend far beyond the issue of religion.

Joseph Kennedy, an assistant football coach, had been fired by the Bremerton, Washington school district when he refused to stop praying after games. For seven years, Kennedy had prayed post-game at the middle of the field without incident. While he had originally done this by himself, some of the Bremerton players eventually asked to join him. Those players then invited players from opposing teams to join them. This led a coach from an opposing team to alert Kennedy’s school that the coach was violating the Constitution. School administrators then instructed Kennedy that, if he wanted to continue praying, he could only do so in a private space away from the players. He refused and told the school that he would continue to pray at midfield and that, if students wanted to join him, he would not forbid them. The school then fired him. Kennedy challenged his firing as a violation of his free speech and free exercise rights under the First Amendment, leading to today’s ruling.

Most importantly, the majority opinion by Justice Gorsuch, joined by Roberts, Thomas, Alito, Barrett, and Kavanaugh (who joined all but one section of the opinion), officially ruled that the three-pronged Lemon Test should not guide judicial analysis of alleged Establishment Clause violations. This aptly named test arose from 1971’s Lemon v. Kurtzman and held that government policy 1) must have a secular legislative purpose, 2) must not primarily advance or inhibit religion, and 3) must not create an excessive entanglement with religion. The test proved hopelessly unworkable and contradictory in practice. Most obviously, whatever steps government officials could take to ensure that a policy did not advance religion risked creating excessive entanglement. Over time, this flaw led a majority of justices to call for its burial—but never, until Kennedy v. Bremerton, at the same time.

In 2019, the court ruled in American Legion v. American Humanist Association that the test would no longer apply to evaluation of public monuments, but its status in other areas, including in education where it was applied most often, remained unclear (see “Supreme Court Partially Junks a Lemon,” Legal Beat, Winter 2020). Today’s opinion officially laid it to rest. Gorsuch wrote that judicial inquiry into potential Establishment Clause violations should instead be based on “‘reference to historical practices and understandings’ and must be consistent with ‘the understanding of the Founding Fathers.’” This would indicate that the court might take a more relaxed approach towards some forms of prayer in school or school related activities such as graduation ceremonies since those certainly were not considered Establishment Clause violations for most of American history.

The court also eliminated the Endorsement Test—sometimes considered an offshoot of Lemon and sometimes considered a replacement for the second prong—which held that government should not do anything that might signal to religious dissenters that they are outsiders. That test also proved unworkable because no one knows exactly when government might cross that line. That uncertainty led it to be ridiculed as the “Two Rudolphs and a Frosty Rule” or the “Plastic Reindeer Rule.” Public schools had to be certain that any Christmas display also included symbols from other either secular or religious celebrations of the winter solstice.

The court ruled not only that the Lemon Test must go but also that the Establishment Clause could not be used as a justification to violate free speech and free exercise rights. “Both the Free Exercise and Free Speech Clauses of the First Amendment,” Gorsuch wrote, “protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.” The court said that ruling against Kennedy would have also authorized firing a Muslim teacher for wearing a headscarf or a Christian teacher for praying over “her lunch in the cafeteria.”

The decision is likely to expand the free speech rights of public-school teachers and other government employees because the court ruled that Kennedy’s speech was private and on a matter of public concern. Under the standard established in 2005’s Garcetti v. Ceballos, speech by government employees is not protected if it is made “pursuant” to their “official duties.” Since the court rejected Bremerton’s claim that Kennedy’s speech was part of his official duties, other school districts will have to exercise caution in claiming that speech on matters of public concern—a much broader category than religious speech—is part of an employee’s official duties and thus punishable, particularly when the speech occurs outside of the classroom. The majority clearly feared that the government could use “‘excessively broad job descriptions’” to undermine the rights of government employees.

The court’s liberal bloc of Sotomayor, Breyer, and Kagan dissented. Writing for the three, Sotomayor contended that Kennedy was acting in his official capacity and that “school officials leading prayers” is “constitutionally impermissible.” Most importantly, though, she argued that the court should not have overruled Lemon and its three-pronged test in favor of a “‘history and tradition’ test.” Public schools, she argued, offer unique challenges that might require limiting speech under the Establishment Clause that would otherwise be protected.

Moving forward, schools will certainly have far more flexibility in accommodating religious speech. In fact, considering the court’s focus on the original understanding of and practices under the Establishment Clause, schools will be required to accommodate more religious speech. The majority did maintain that the government cannot coerce citizens to engage in religious practices. One suspects that future legal controversies will hinge on how the court defines coercion. If the court’s analysis will truly focus on history and tradition then that definition will likely be quite limited. Previously, the court has said that psychological coercion or essentially peer pressure could count as coercion under the Establishment Clause. One suspects that today’s majority would have doubts that that would count as coercion and would lean toward the late Justice Scalia’s definition, which was that coercion only occurs when the government punishes you for refusing to support a particular religion.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

This article appeared in the Fall 2022 issue of Education Next. Suggested citation format:

Dunn, J. (2022). The First Amendment’s Establishment Clause Doesn’t Suspend Free Speech and Free Exercise Rights, Supreme Court Rules: Opinion backs prayer by football coach, scraps Lemon Test. Education Next, 22(4), 6-7.

America is experiencing another spasm of conflict over book banning in public schools. In January 2022, the McGinn County Board of Education in Tennessee provoked a nationwide uproar when it unanimously voted to remove Maus, a graphic novel about the Holocaust, from its curriculum. The school board said that the book wasn’t appropriate because of certain language and a drawing of a nude woman. For the book and its author, Art Spiegelman, the flap generated the kind of publicity that money can’t buy.

This episode illustrates how the label “banning” is thrown around too easily. Even if one disagrees with the McGinn County Board’s reasons, removing a book from the curriculum is not the same as banning it. In 2020, a Massachusetts teacher boasted that she helped remove Homer’s Odyssey from her school’s curriculum. That, too, was not book banning but an attempt to make her school’s curriculum conform to her pedagogical agenda. Similarly, many school districts have removed Huckleberry Finn from the curriculum because of its liberal use of an offensive racial epithet. Again, that is not banning. School districts must have the authority to curate class readings. If not assigning a book constitutes banning it, then every time an English class syllabus changes, a book is being banned.

School districts have the authority to make these kinds of curricular choices. There are, however, instances where limiting students’ access to materials, particularly in libraries, violates the law. Such questions are already being litigated. Despite assertions of unconstitutional censorship, the scant case law that we have indicates that schools can remove material if they do so out of concerns about its appropriateness for school-age children and not to suppress ideas. That means that most alleged instances of book banning are likely lawful and that restraints on school districts are political rather than legal.

The central case addressing the issue is 1982’s Board of Education v. Pico. In 1975, the Island Trees Union Free School removed from the school library several books that it regarded as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” It also decided that access to a few others should only be allowed with parental approval. In response, several students sued, claiming the board’s action violated their First Amendment rights. When the case reached the U.S. Supreme Court, the justices were badly fractured. Four of them ruled that the action of the board violated the First Amendment because “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” But four justices ruled that the board had not violated the First Amendment, and Justice Byron White argued that the case should be resolved without reaching the First Amendment question. White concurred with the four justices who ruled against the school district but wrote his own opinion arguing that, because there were still unresolved factual questions, it was premature to address the constitutional issue. This makes the precedential status of the decision ambiguous.

It is not clear that today’s court would treat such a splintered case as binding precedent. Even if it did, school officials have broader latitude under the Pico decision than one might think. The plurality opinion, written by Justice William Brennan Jr., held that “the First Amendment imposes limitations upon the exercise by a local school board of its discretion to remove library books from high school and junior high school libraries,” but also that “local school boards have broad discretion in the management of school affairs.” The opinion also made it clear that the ruling affects “only the discretion to remove books,” not a school board’s discretion “to choose books to add to the libraries of their schools.” A board’s discretion, the court held, was only constrained by the principle “that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.” Thus, schools can legally remove books over concern about language or content, as long as the action isn’t motivated by a desire to suppress the book’s ideas.

Those angered by decisions to remove books are still likely to sue. After all, litigation can be useful for generating publicity and applying political pressure, even if a case never makes it to court. For instance, in February 2022 the American Civil Liberties Union of Missouri sued the Wentzville School District because the school board had decided to remove eight books, including Toni Morrison’s The Bluest Eye, from school libraries. The ACLU accused the board of removing the books “because of the ideological disagreement members of the District’s school board and certain vocal community members have with the ideas and viewpoints that the books express.” In its filing, however, the ACLU did not provide any evidence that the four board members who voted to remove the books were in fact motivated by a desire to discriminate based on viewpoint. Instead, the ACLU pointed to the alleged viewpoint-based motivations of parents who complained about the books. Even then, the evidence they cited only showed concerns about graphic depictions of sex, incest, and rape. Unless the ACLU could find other evidence of an attempt to discriminate based on viewpoint, the decision was almost certainly within the board’s authority. Even so, the board reversed its decision to ban Morrison’s book after the lawsuit was filed—proving that litigation can get results even if it might not prevail in court. The board did leave the bans on the other books in place, at least for the time being.

While school boards have significant authority, the Wentzville case reveals the fraught nature of these choices. Just because a board can remove a book does not necessarily mean it should. If the standard is graphic depictions of sex, or rape, or incest, then it is only a matter of time before someone calls for the Bible to be banned. And if a school district obliges, you can be certain that someone will sue.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

This article appeared in the Summer 2022 issue of Education Next. Suggested citation format:

Dunn, J. (2022). Suits Challenging Book “Banning” May Be Better Politics than Law. Education Next, 22(3), 6-7.

In June 2020, the U.S. Supreme Court seemingly dealt a deathblow to Blaine Amendments—provisions adopted by 37 states to prevent government funding of parochial schools. In Espinoza v. Montana Department of Revenue, the court held that states could not use these amendments to discriminate against religious parents or religious schools by excluding them from a “generally available” government benefit. Yet despite this ruling, a number of Blaine Amendment cases are still working their way through the courts.

Perhaps the most interesting one, Hile v. Michigan, was filed in federal court in September 2021. In Hile, five families acting with the support of the Mackinac Center for Public Policy, a free-market think tank, challenged the state’s decision to prevent them from using their 529 savings plans for tuition at private religious schools. Authorized by federal tax law but sponsored by individual states, 529 plans allow individuals to invest after-tax income in accounts where the money grows tax-free and can be used for education expenses. Initially, these plans were allowed only for higher education, but in 2017 the Tax Cut and Jobs Act extended the program to K–12 expenses, including costs at private and religious schools.

Despite the change in the law and the court’s ruling in Espinoza, Michigan refused to extend this benefit to private-school parents because the state’s Blaine Amendment forbids using public funds “to aid any nonpublic elementary or secondary school,” and “tax benefits” are one of the prohibited forms of aid. Michigan’s position is that because all private schools, not just religious ones, are constitutionally excluded, the state’s policy does not constitute religious discrimination.

The parents in Hile have offered several arguments against the state’s position. Most important, they argue that the First Amendment’s Free Exercise Clause prohibits any government action motivated by religious animus. Two cases in particular suggest that the courts might conclude that such animosity is in play in the Hile circumstances. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, the Supreme Court held that a town ordinance passed solely to exclude the Santeria Church from locating in Hialeah, Florida, violated the Free Exercise Clause’s requirement that government be neutral toward religion. Similarly, the court ruled in Masterpiece Cakeshop v. Colorado Civil Rights Commission that the blatant hostility expressed by members of the commission toward a religious believer violated the government’s “high duty” of neutrality.

Michigan’s Blaine Amendment, the Hile plaintiffs claim, has at most a veneer of neutrality. The amendment was added to the state constitution in 1970 in response to a proposal for the state to provide $150 in assistance to each private-school student. At the time, nearly all of the state’s private-school students were attending religious schools, most of them Catholic. In what became one of the most unsubtle choices in American politics, the primary sponsor of the amendment called itself the Council Against Parochiaid. In fact, opponents of the state funding simply called the money “parochiaid.” The group explicitly asked its supporters to “contact all Protestant Church ministers and Jewish Rabbis in your area asking them to sermonize against Parochiaid and encourage their congregation to vote YES” on the amendment. Another supporter of the amendment, Americans United for Separation of Church and State, bluntly stated, “More than 90 percent of all parochiaid funds go to schools owned by the clergy of one politically active church.”

The Hile plaintiffs also argue that even though all private schools are excluded from the 529 plan, Michigan still treats “comparable secular activity more favorably,” because the state allows public-school students to transfer to a different district if the family pays tuition—and parents can use their 529 savings in these instances. Moreover, the plaintiffs argue that Michigan is forcing families to “divorce” themselves from religious control or affiliation as a condition of receiving a government benefit, in violation of Espinoza.

Because of the unusual facts behind both the 529 policy and the Blaine Amendment, there is a chance that Michigan’s decision could survive judicial scrutiny. However, some justices on the Supreme Court have clearly wanted to use the bigoted history behind Blaine Amendments as justification enough to declare them unconstitutional. For instance, Justice Samuel Alito’s concurring opinion in Espinoza documented the anti-Catholic bigotry motivating Blaine Amendments and contended that that history shows that the amendments are inherently discriminatory and, thus, unconstitutional. One newspaper warned its readers about Catholicism and in particular Catholic education, saying, “Popery is the natural enemy of general education. . . . If it is establishing schools, it is to make them prisons of the youthful intellect of the country.” The court, Alito asserted, should directly consider that history. But so far, following Chief Justice John Roberts’s minimalist disposition, the court has not done so. In Hile, though, lower courts will not be able to avoid a direct consideration of that history, nor will the Supreme Court, if the case makes it that far. One cannot simply sweep a label like “parochiaid” under the historical rug.

Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.

This article appeared in the Spring 2022 issue of Education Next. Suggested citation format:

Dunn, J. (2022). Blaine Fights Back. Education Next, 22(2), 6-7.