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.

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.

Questions surrounding the application of Title IX to transgender students have been roiling education politics for nearly 10 years. In 2016, the Obama administration tried to settle one aspect of the issue without public input by declaring in a Dear Colleague Letter that transgender students must be able to use bathrooms matching their gender identity. That effort only generated more conflict and was quickly rescinded under President Trump. The Biden administration not only essentially reinstated the Obama administration’s rule, which is being challenged in court, but also is trying to expand its reach via proposed guidelines on transgender participation in athletics. While its approach on the latter is more cautious and more open to public input, it is unlikely to be any more successful.

In April 2023, the U.S. Department of Education proposed a rule that seems designed to satisfy no one and is sure to generate litigation. Instead of announcing via a Dear Colleague Letter that it would impose its standards by fiat, as the agency has often done, it offered a brief opportunity of 30 days for members of the public to comment. And comment they did, with more than 132,000 statements pouring in. The agency is expected to release a revised rule soon, but the volume of comments and the shifting political landscape are likely slowing the process.

The proposed rule says that “policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity” but “that in some instances, particularly in competitive high school and college athletic environments, some schools may adopt policies that limit transgender students’ participation.” In short, you cannot exclude transgender athletes except when you can.

So, when can you limit transgender students’ participation? The proposed rule says that “one-size-fits-all policies that categorically ban transgender students” violate Title IX but appears to offer a sliding scale: restrictions in elementary school “would be particularly difficult to justify” but may be permissible in high schools and colleges. Schools, the administration conceded, need “flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.” Beyond that it does not offer any real guidance. However, saying that fairness or safety could justify restricting access concedes that biological sex does in fact matter for athletic performance.

That concession has angered transgender advocates who say that excluding transgender athletes for any reason is unacceptable discrimination. Additionally, many have claimed that being biologically male does not confer any demonstrable athletic benefits. In the end, it is not surprising that the Biden administration did not accept that claim, since almost all conflicts about the fairness of transgender sports participation stem from biological males competing in female athletics.

Another often-raised concern is that women and girls playing contact sports face safety risks if they must compete against biological males who have transitioned. And questions about biological females competing in male sports seem to center around their safety rather than the safety of the other athletes.

Beyond safety, of course, there is the question of whether transgender participation deprives females of other opportunities. If transgender athletes consistently outperform other athletes, biological females could be denied the chance to win scholarships or succeed in athletic events. That is, in fact, the claim of four female high school athletes in Connecticut who have challenged their state’s policy of allowing transgender athletes to compete in the category matching their self-identified gender. After being dismissed for lack of standing, that case is now under review by the entire Second Circuit Court of Appeals.

The Biden administration proposed rule also skirts a whole host of other thorny issues, such as whether religious schools that participate in state athletic leagues could be excluded because they have religious objections to having their students play against transgender athletes. As the regulation is written, they would presumably have to compete against teams with transgender athletes or forfeit the opportunity to play in state-sanctioned leagues. The rule would also seem to compel females in all schools to share locker rooms with athletes with male reproductive anatomy.

The proposed rule drew a range of reactions, including complete disapproval from hardliners on both sides of the issue—those who want states to require students to compete based on their biological sex and those who want no restrictions on the ability of students to compete in the sex category they identify with.

Given the controversy surrounding the proposed rule—and Congressional disinterest in weighing in—it’s not hard to imagine the issue being decided by the U.S. Supreme Court. While one might expect the conservative majority to be unsympathetic to mandating transgender participation in female sports, Justice Neil Gorsuch did write the opinion in 2020’s Bostock v. Clayton County, which was joined by Chief Justice John Roberts, finding that the word “sex” in Title VII of the Civil Rights Act of 1964 also protected workers from discrimination based on sexual orientation and gender identity. Since Title IX was written in 1972, also long before anyone could have imagined its application to transgender students, the Bostock ruling would seem to imply that sex should be interpreted the same under both laws. But the court might also declare that gender identity in athletic competition raises entirely different questions than in employment.

In fact, the proposed rule provides a roadmap for the court to do this. By admitting that biology does in fact matter for safety and fairness, the rule gives school districts extraordinary latitude to create regulations that would exclude transgender athletes. That is why it is so vague about what should guide the schools. And if a school district decides that it wants transgender students to participate in the category matching their identity, parents who oppose such a policy would have a powerful tool to fight back politically and legally. They might point to evidence from studies, such as one published in the journal Sports Medicine, showing that “the muscular advantage enjoyed by transgender women is only minimally reduced when testosterone is suppressed.” Thus, transgender female athletes would almost inevitably have a competitive advantage in contact and non-contact sports relying on strength and speed, while in contact sports there would also be safety concerns. Those issues largely do not arise under Title VII.

However, the politics surrounding the issue are also changing. The fact that the Biden administration did not offer a categorical rule like Obama’s did and allowed public comments indicates more than a little uneasiness, which could presage a further retreat. A recent Gallup poll found that the percentage of Americans who think that students should play on teams that match their biological sex has risen to 69 percent today from 62 percent in 2021 and that only a minority of Democrats—47 percent—think that transgender students should be able to play on teams that match their gender identity. The looming presidential election could thus also be influencing the administration’s delay. Ultimately, the Supreme Court might decide the matter—that is, unless politics decides it first.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s Institute of American Civics at the Howard H. Baker

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

Dunn, J. (2024). Splitting the Baby Worked for Solomon, but It Won’t for Biden. Education Next, 24(1), 6-7.

In 2007, Chief Justice John Roberts famously declared in Parents Involved in Community Schools v. Seattle that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In Students for Fair Admissions (SFFA) v. Harvard and Students for Fair Admissions v. University of North Carolina, the Supreme Court moves much closer to Roberts’s position on racial discrimination. The court’s ruling, announced June 29, 2023, will have significant effects on college admissions policies and on K–12 education.

SFFA, an organization created by Edward Blum, had contended that Harvard’s use of race in college admissions violates Title VI of the Civil Rights Act of 1964, which forbids racial discrimination by any entity receiving federal money. UNC, SFFA argued, violated not only Title VI but also, as a state institution, the Equal Protection Clause of the 14th Amendment. The Supreme Court agreed with both claims. The court combined both cases under SFFA v. Harvard but focused its analysis solely on the 14th Amendment. Previously it had held that a violation of the Equal Protection Clause would also constitute a violation of Title VI for institutions receiving federal funds; hence, the court’s equal protection analysis was sufficient to decide both cases.

Echoing his opinion in Parents Involved, Roberts concluded in his majority opinion that “eliminating racial discrimination means eliminating all of it.” Joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, he offered three primary reasons for ruling against Harvard and UNC: their programs 1) “lack sufficiently focused and measurable objectives warranting the use of race,” 2) “unavoidably employ race in a negative manner, involve racial stereotyping,” and 3) “lack meaningful end points.”

With the first, since racial classifications are inherently suspect and must be given strict scrutiny, the compelling interest claimed by the institutions and the means of accomplishing them must be measurable. Harvard’s and UNC’s goals, Roberts said, were “commendable” but inherently “elusive” and “imprecise.”

On the second, Roberts said that the court had previously ruled that race could never be used as a negative factor in evaluating a student for admission. Both Harvard’s and UNC’s admissions programs did so, according to the court, effectively penalizing students who were not Black or Hispanic. Perhaps most important, though, it’s difficult to see how any use of race in admissions could survive, as admissions is, as Roberts pointed out, a “zero-sum” game. If it’s used as a plus factor that leads to one student being admitted, someone else who is not admitted because they do not have that plus factor inevitably suffers. Even though the court did not explicitly declare that it was overturning 2003’s Grutter v. Bollinger, which said that diversity was, temporarily, a compelling interest justifying the use of race in admissions, that opinion seems to be overturned in fact.

The court’s third reason, though, might have been the most important. Roberts pointed out that the court had clearly indicated in Grutter that affirmative action must have an end point. Justice Sandra Day O’Connor, in fact, said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary.” Even if for some reason that 25-year mark could not have been met, it would have been smart for Harvard and UNC to at least offer a tentative date. Their refusal to do so at any point in the litigation looks like a catastrophic miscalculation. At oral argument a couple of the conservative justices appeared sympathetic to the idea that universities should have some flexibility to bring the use of racial preferences to a close on their own if they could point to reasonable time frame for doing so. But the message the majority took from Harvard and UNC’s obstinance was that universities could not be trusted to work toward eliminating racial preferences on their own. “There is no reason to believe,” Roberts said, “that respondents will—even acting in good faith—comply with the Equal Protection Clause any time soon.”

The majority also appeared concerned that colleges and universities deeply committed to racial preferences would try to evade their ruling by adopting facially neutral admissions policies that nevertheless had a discriminatory effect. Much of the court’s reasoning seemed designed to warn universities that engaging in various evasions would only put them in more legal jeopardy. Roberts said, “universities may not simply establish through application essays or other means the regime we hold unlawful today.” He said further that the ruling does not prohibit “universities from considering an applicant’s discussion of how race affected his or her life” but then gave specific examples of how that must be done. For instance, “A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.”

For universities, this likely means that admissions programs tightly constructed to increase socioeconomic diversity would survive legal scrutiny. However, if socioeconomic plans ended up leading to consistent percentages across racial groups across multiple admissions cycles, the court would be inclined to rule against them. In short, anything that looks like it is giving a systematic advantage based on race would be suspect. As well, if a school were to announce publicly that it was switching to a socioeconomic plan for the purpose of maintaining racial diversity, that would also be unconstitutional under today’s decision. Facially neutral programs that nevertheless have a discriminatory effect or were intended to have a discriminatory effect have long been considered unlawful.

The three members of the court’s current liberal bloc, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, dissented. Jackson offered a separate dissent since she had recused herself from the Harvard case in light of her recent service on Harvard’s board of overseers. Sotomayor, joined by Kagan and Jackson, accused the majority of “roll[in]g back decades of precedent and momentous progress.” In a biting dissent, Jackson said the majority’s opinion suffered from a “let-them-eat-cake obliviousness” that disregarded the ways race still matters in American life.

For K–12 education, the court’s rulings should settle once and for all whether school districts can use race in policies assigning students to schools. In Parents Involved, the majority had ruled that race could not be used. However, in a famously inscrutable controlling concurring opinion, Justice Anthony Kennedy had said that while the policies struck down by the court were unconstitutional, he was unwilling to foreclose the possibility of a school district fashioning a constitutionally acceptable policy. This led some, including the Obama administration’s Department of Education, to treat the four dissenters in the case along with Kennedy’s concurrence as a majority opinion. Today’s opinion clearly eliminates that as a possibility.

The opinion will also affect ongoing litigation around magnet schools such as Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia. In the wake of the George Floyd protests in 2020, the school district changed the admissions plan for the school. The previous admissions policy required students to take a rigorous entrance exam to gain admission to the school, which has been consistently ranked as one of the best high schools in the country. However, the board desired to racially balance the school to make it more closely reflect the demographics of the school district. To do so, it adopted a facially neutral “holistic” admissions policy. In the last year under the old system based on grades and a standardized test, Asian-American students comprised 73 percent of the admitted students. Under the first year under the new system, that percentage dropped to 54 percent.

The new policy was challenged in federal court by the Coalition for TJ, a group of district parents. The district court ruled in their favor, but that decision was overturned by a Fourth Circuit panel this May.

The author of the appellate decision, Judge Robert King, had ruled that the new policy did not harm Asian students and “visits no racially disparate impact on Asian American students. Indeed, those students have had greater success in securing admission to TJ under the policy than students from any other racial or ethnic group.” The assertion that a drop of 19 percentage points doesn’t have a disparate impact on you because there are still more of you than others is not something that will survive in light of today’s ruling.

Moving forward, this certainly does not mean the end of litigation either at the college or K–12 level. However, if a university wants to adopt a “holistic” admissions policy, it would be well-advised to make sure that no one in its administration or admissions department ever said anything that could remotely sound like their intent is to achieve goals related to racial representation. And should a school district want to adopt an admissions policy similar to Fairfax’s, it would be well-advised to make sure that members of its board or administration had never made comments about the need to engage in anything resembling racial balancing.

Joshua Dunn is executive director of the University of Tennessee, Knoxville’s  Institute of American Civics at the Howard H. Baker Jr. Center for Public Policy.

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

Dunn, J. (2023). High Court Decision in College Admissions Case Has K–12 Implications: Considering race in school assignment will become even harder after Harvard, UNC lose. Education Next, 23(4), 6-7.

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 the war over affirmative action, the counsel for Harvard, Seth Waxman, might have made a fatal admission in his oral argument in Students for Fair Admissions (SFFA) v. Harvard. Under questioning from Chief Justice Roberts trying to verify that race was a determinative factor in some admission cases, Waxman agreed that it was but then went on to say that it was similar to a university admitting an oboe player because the school needed someone with an oboe player’s skills. Roberts immediately responded that America had not fought a war over oboe players but it had fought one over race, which is why the Court has always subjected racial classifications to strict scrutiny. This admission also pointed to the fact that in a zero-sum game such as college admissions, if one person gets a benefit because of race and another person does not, then there must be some form of racial discrimination occurring. That, it looks like, could be the decisive factor in the court’s decision.

Beyond this crucial concession, there seemed to be several other reasons, based on the oral argument in the Harvard case and the companion case, University of North Carolina v. SFFA, to think that affirmative action might be declared unconstitutional or will soon be declared unconstitutional. Most importantly, no one defending either Harvard or UNC at the October 31 oral argument—which included Waxman, U.S. Solicitor General Elizabeth Prelogar, North Carolina Solicitor General Ryan Park, and David Hinojosa of the Lawyers’ Committee for Civil Rights—could offer anything resembling a firm deadline for the end of affirmative action. Pointing to Justice O’Connor’s position in her majority opinion in Grutter v. Bollinger (2003) that “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” none would even hazard anything resembling an “end point.” Instead, the position offered was that yes it will end when, as Prelogar said, schools have reached their “diversity goals.” But they did not say what those goals should be nor when they could conceivably be met. At least two of the conservative justices, including Justice Kavanaugh and Justice Barrett, sounded like they might have been more sympathetic to letting Harvard and UNC continue their affirmative action programs if they could have given a more concrete deadline. At least they might have been willing to let it continue until we meet O’Connor’s 25-year deadline in 2028 or maybe somewhat longer if they had been provided a precise end date. The failure to do so seems like a tactical error. Even if UNC and Harvard would want it to continue in perpetuity, making that rhetorical concession could allow them to live to fight another day.

Another option for Harvard and UNC to peel off a couple members of the conservative bloc would have been to convince them that under originalist grounds the 14th Amendment allows for race-conscious policies such as affirmative action. The two attorneys for SFFA, Cameron Norris who argued against Harvard and Patrick Strawbridge who argued against UNC, both contended that the race conscious policies that had been adopted in the wake of the Civil War and after the passage of the 14th Amendment were remedial and that under Justice Powell’s controlling opinion in Bakke v. California that was not a compelling justification for the use of race in college admissions. The universities had not really tried to defend the affirmative action programs under consideration on the grounds that they were remedial. Instead, as Bakke required, the compelling government purpose had to be diversity. Again, none of the advocates defending Harvard and UNC seemed to offer a persuasive response to this claim, or at least one persuasive enough to satisfy committed originalists such as Gorsuch and Thomas. A lawyer representing UNC’s position did mention Confederate relics and even white supremacist marches on his campus and said that universities in states that had not had legal segregation might have weaker or even non-existent claims to race-conscious admissions, but he was grilled on whether such admissions benefits would apply to an applicant with a single African-American great-grandparent.

As well, other conservative justices expressed significant concern that “holistic” admissions programs were, as Justice Gorsuch called them, “subterfuge” for unconstitutional racial quotas. Harvard, he pointed out, had adopted a holistic approach in the 1920s in order to limit the number of Jews in its student body. Justice Kavanaugh even asked whether Harvard had sold Justice Powell “a bill of goods” when it offered and he accepted its holistic method in Bakke. Waxman contended that whatever noxious motivations Harvard had in the past, that the two situations were completely different. That, again, was unlikely to affect the conservative bloc. Perhaps recognizing that they were making little headway with the court’s conservatives, both Waxman and Prelogar floated the idea that if the court disagreed with the lower courts’ interpretation of the findings of fact that they should remand the cases to be reheard based on clarifying guidance provided by the court.

Finally, and solely related to Harvard, Waxman struggled to respond to questions about the personal ratings that Asian-American applicants consistently receive by Harvard’s admissions department. Each applicant to Harvard is given a personal rating encompassing qualities such as “leadership,” “courage,” “likeability,” “self-confidence,” and “kindness.” Asian-Americans consistently receive worse scores than other ethnic groups based on this personal rating. For instance, 22.2 percent of Asian-Americans applicants in Harvard’s top academic decile receive a personal rating of 1 or 2, compared to 29.6 percent for Whites, 34.21 percent for Hispanics, and 46.97 percent for African Americans. To defend this, Waxman fell back on the ruling by the trial court that this does not in fact count as evidence of racial discrimination. He called it only a slight statistical disparity in an initial “triage,” perhaps related to confidential letters of recommendation. One suspects, though, that if the races were reversed he would not regard this as an innocuous abnormality. While appellate courts generally accede to the findings of fact by trial courts, here one suspects the conservatives will be unpersuaded. Justice Alito, for instance, pressed Waxman to choose whether the systematically lower scores were evidence that Harvard believes Asian-American applicants lack those characteristics or, alternatively, that there is something wrong with Harvard’s personal score.

With the usual caveat that predicting outcomes based on oral argument is hazardous and uncertain, in light of today’s, it would seem prudent for schools to prepare for an environment where they cannot consider race in admissions. In the case of private institutions such as Harvard and public universities that receive federal funds, which is all of them, the justices appear poised to rule that Title VI of the Civil Rights Act clearly forbids racial discrimination and that the use of race necessarily requires racial discrimination. Prelogar tried to argue that the use of the word “discrimination” in Title VI was ambiguous, prompting Justice Gorsuch to ask if the court was mistaken in Bostock v. Clayton County, an opinion he authored forbidding discrimination based on sexual orientation and gender identity, which held that the meaning of discrimination in Title VII of the same act was not ambiguous. Her response was that the court was not mistaken but that the same term was in fact ambiguous in one but not the other. Additionally, the court seems likely to rule that the use of race in admissions violates the Equal Protection Clause of the 14th Amendment which public universities are also bound by. Going forward, there might be additional questions that universities will have to confront such as the legality and constitutionality of other mechanisms they use to promote racial diversity, including such things as diversity statements from job applicants. One simply does not get the sense that a majority on this current court is sympathetic to those aims.

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 2023 issue of Education Next. Suggested citation format:

Dunn, J. (2023). Supreme Court Skeptical in Affirmative Action Cases: No Civil War over oboe players, Chief Roberts reminds Harvard’s lawyer. Education Next, 23(2), 6-7.

Opponents of school choice, after a string of recent defeats in state legislatures (see “School Choice Advances in the States,” features, Fall 2021) are turning to litigation, asking courts to block these new options for parents and students.

One of their first targets is West Virginia’s Hope Scholarship Program. Passed in 2021, this program would have allowed qualified students, which included 93 percent of West Virginia students, to use the average amount of per-pupil state funding, approximately $4,300, on qualifying education expenses, including private school tuition.

The ink was barely dry on the governor’s signature before Mountain State Justice, a state progressive public interest law firm, announced in September 2021 that it would sue. They followed through in January 2022 with a case in Kanawha County Circuit Court, Beaver v. Moore, alleging a host of state constitutional violations.

Their first claim was based on the state constitution’s education clause, which says that “The Legislature shall provide, by general law, for a thorough and efficient system of free schools.” Interestingly the complaint claimed that that clause says that the state can “only provide for a system of free public schools” (emphasis in original). The clause does not actually say “only ,” nor does it indicate that whatever “thorough and efficient” means it only applies to public schools. The clause does not, in fact, limit the state’s ability to support education in other ways.

They also claimed that the program “violates the Legislature’s first constitutional obligation to fund public schools” because it “would negatively impact funding for public schools” since students might leave and therefore districts would not receive their per-pupil funding from the state. However, once again, there is nothing in West Virginia’s Constitution actually saying that programs negatively impacting school funding would be unconstitutional. That claim is so broad that it could include anything that could “incentivize” actions that would reduce enrollment. One could, after all, claim that insufficient road maintenance was prompting people to leave the state which could reduce enrollment in public schools or that inadequate public safety made the state less attractive to parents which would then reduce spending on schools.

Mountain State also alleged that the program violated the state constitution’s requirement that the “school fund” can be used for “no purpose whatsoever” than funding public schools. But the program does not take funds from the school fund. The act created a different fund that is paid for out of the state’s general fund. Other claims, such as that the program “usurps” the state Board of Education’s constitutional authority, were just as dubious. The board’s authority only extends to public schools, not all schools, as the argument seemed to imply.

In March, Mountain State asked for a temporary injunction halting the program. On July 6, a state circuit court judge, Joanna Tabit, went even farther than that request and issued a permanent injunction, meaning that it is her final judgment and that it will not be reconsidered unless she is overturned by a higher court. She has yet to issue a written opinion but from the bench she claimed that it violated the “thorough and efficient” education clause and said, “In my view, the plaintiffs and the public school system will suffer irreparable harm if the scholarship program and the legislation establishing it are not enjoined from being implemented.” The state allocations for this coming year, however, were based on last year’s enrollments, so the public schools would be receiving the same amount of money regardless of whether students received Hope Scholarships. Only next year would school districts’ state distributions potentially decline if parents sought options outside of the public school system and the program were not struck down by the courts.

While Tabit seemed very concerned about protecting public schools from competition, she was remarkably unconcerned about what would happen to the more than 3,000 students who had been told that they would receive scholarships for the coming year. After the ruling, the state immediately announced that “students and educational service providers may not be able to access Hope Scholarship funds for the 2022-2023 school year, even if a student’s application for the Hope Scholarship Program has already been approved.”

For now these students can only hope that the state’s petition for a stay to a court of appeals will be approved. In addition to documenting the contorted reasoning of the plaintiffs, the appeal, filed on July 19, pointed to the harmful timing of the injunction, which left “thousands” of families in “limbo.” The state also expressed frustration with Tabit refusing to say when she “will ultimately issue its written orders, even though the program was set to start depositing funds for families next month.”

Whatever the ultimate outcome in West Virginia, other states that have created or expanded school choice programs should expect similar challenges based on state constitution education clauses which often include a requirement for “thorough and efficient” or “thorough and uniform” or “general and uniform” public school systems. A voucher program in Florida faced a similar challenge (see “Florida Grows a Lemon,” Summer 2006). Such approaches may become more common now that the U.S. Supreme Court has issued rulings making state Blaine amendments, which restrict funding to religious institutions, less useful for choice opponents to rely on. Historically, as adequacy lawsuits demanding greater funding show, state court judges have not been shy about finding all sorts of previously unknown content in these state education clauses. In short, dodgy constitutional arguments have not been a barrier to judicial meddling in the past, so one should not count on them being a deterrent moving forward. However, state courts do operate under greater political constraints than federal courts (most state judges are either initially elected or subject to retention elections if initially appointed), so getting the programs off the ground and creating a constituency supporting them could eventually help serve to protect them from judges otherwise inclined to impose their policy preferences under the guise of constitutional interpretation.

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.

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.

The Blaine Amendments’ long, painful death continues. Carson v. Makin provided an opportunity for the court to inter them fully but it declined to so. Instead, the Court’s reasoning announced today essentially means that the infamous amendments, which forbid states from using public funds to support religious institutions, almost always violate the Free Exercise Clause of the First Amendment—but given what the court declined to say, Blaine could potentially survive in extremely limited circumstances.

The Supreme Court initially began its slow-motion execution of Blaine Amendments in 2017’s Trinity Lutheran v. Comer, which held that Missouri’s rejection of a religious school’s grant application to resurface a playground because of the state’s Blaine Amendment was unconstitutional. However, the 7-2 majority said that it was so because of discrimination solely based on the religious status of the school. Potentially, discrimination based on religious use could be possible. Then, in 2019’s Espinoza v. Montana, the court ruled that excluding religious schools from a tax credit scholarship program also constituted unconstitutional discrimination based on religious status.  Singling out citizens and institutions from a general program solely because they happen to be religious violated longstanding principles that religious believers cannot be excluded from receiving otherwise available benefits. After this, the status versus use distinction was clearly on life-support. Today the court reduced the flow of oxygen without completely cutting it off.

The issue in Carson v. Makin was a 1982 Maine law that excluded religious schools from the state “tuitioning system,” which pays for students to attend private schools (Maine does not have a Blaine Amendment). Maine’s rural character means that a majority of its school districts do not have secondary schools. To ensures that all students can attend high school, the state has paid for students to attend either another public school or a private school of their choice—which included religious schools until that 1982 law was enacted. Citing Trinity Lutheran and Espinoza, a First Circuit panel, which included retired Supreme Court Justice David Souter, upheld Maine’s law, saying that it discriminated based on religious use and not status because religious schools could participate as long as they offered a non-sectarian education. This reasoning simply illustrated that the distinction between status and use was inherently unstable, since it really meant that religious schools could avoid being discriminated against as long they were not religious.

In a 6-3 decision for the court, Chief Justice Roberts—joined by Thomas, Alito, Kavanaugh, Gorsuch, and Barrett—did not eliminate the status versus use distinction but severely eroded it. Roberts concluded that simply labeling a restriction on funding to religious schools “use”-based did not offer it constitutional immunity. Instead, use-based restrictions also constitute religious discrimination and therefore must satisfy strict scrutiny: they must serve a compelling government interest and be narrowly tailored. This program did not meet that standard. He concluded that “there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Importantly, however, Roberts did not eliminate the status-use distinction, leaving open the possibility that some forms of use-based discrimination could survive. For instance, he pointed out that the court had previously upheld a use-based restriction in Locke v. Davey (2004) as a very narrow exception based on the state’s interest in not subsidizing the training of clergy. But Locke, he said, “cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.”

Roberts also made certain to emphasize, as he did in Espinoza, that a state does not have to subsidize private education—but that once it does it must do so on a religiously neutral basis. That assurance, however, did not satisfy the dissenters, particularly Justice Breyer, who was joined by Kagan and Sotomayor. Continuing the same arguments Breyer made in his dissent in Espinoza, he argued that there is really no way to limit the majority’s reasoning saying, “We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.” He then asked if school districts must now provide “equivalent funds to parents who wish to send their children to religious schools?” and whether “school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

Justice Sotomayor also offered her own dissent that was not joined by Breyer or Kagan. She simply bemoaned the fact that the court even “started down the path” it did in Trinity Lutheran and was continuing, in her view, “to dismantle the wall of separation between church and state that the Framers fought to build.”

What does this decision mean going forward? In particular, this ruling will make it more difficult to refuse to allow religious organizations to run charter schools, even ones that want to provide explicitly religious instruction. That would seem to deny a generally available benefit on the basis of religion that could not survive today’s more limited understanding of constitutional use-based restrictions. Certainly, states and school districts that offer support for private schools will be hard-pressed to deny support to religious schools unless they happen to be the odd k-12 school that exists to train ministers. However, one could expect those that do deny that funding to come up with more elaborate use-based justifications. One should also expect litigation based on Breyer’s questions. Cabining the majority’s reasoning would seem to be difficult. But that also forces one to ask if Chief Justice Roberts, in his minimalist mode, is not confirming Zeno’s Paradox. Each decision, starting with Trinity Lutheran and continuing through today’s, takes a step towards eliminating Blaine Amendments, but the court never seems to get all the way there.

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.

Additional Education Next coverage of Blaine Amendment-related cases:

• Supreme Court Oral Argument in Carson v. Makin Sends Hopeful Signal for Religious School Aid, Joshua Dunn, December 8, 2021
• The Education Exchange: Supreme Court to Weigh Whether Maine Can Exclude Religious Schools, Sept. 10, 2021
• Blaine Fights Back, Joshua Dunn, Nov. 23, 2021
• A Landmark Ruling for Religious Schools, Joshua Dunn, Winter 2021
• In Supreme Court Case, a Far-Reaching Win for Religious-School Parents, Joshua Dunn, Fall 2020
• Justice Alito’s Brief Retelling of Blaine Amendment History, Samuel Alito, June 30, 2020

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

Dunn, J. (2023). In Carson v. Makin, Supreme Court Prolongs Death of Blaine Amendments: Majority rules that Maine can’t exclude religious schools from tuitioning program. Education Next, 23(1), 6-7.