Charter schools, abundant in California, could be a Supreme Court target

For all the controversy surrounding it, the latest ruling by the U.S. Supreme Court broadening the obligation of states to fund private religious schools will have no direct impact on California.

California does not finance private schools, at issue in the 6-3 decision on June 21 involving the state of Maine. And there's no indication that it will anytime soon. The latest effort to introduce a voucher-like subsidy for private schools died this year for lack of enough signatures to put the initiative on the state ballot. Earlier similar statewide initiatives lost by 2-1 margins.

But California does have an abundance of charter schools, serving about 1 in 10 students in the state. And critics of the Maine decision, Carson v. Makin, who include the three dissenting justices, are warning that charters could be drawn into the next skirmish involving competing interests: the First Amendment's prohibition of government from fostering religion versus people's right to express their religion without government interference.

“There will be efforts by those who want to create religious charter schools to claim that the denial of funding for them violates free exercise of religion,” predicted Erwin Chemerinsky, dean of the UC Berkeley School of Law.

Supreme Court Justice Stephen Breyer raised that prospect in his dissent in Carson v. Makin. But in oral arguments in the case, the lead attorney for the plaintiffs, two families from Maine, had called that prospect an “unwarranted concern.” Charter schools are public schools, and the Maine case dealt strictly with private schools. The circumstances are unrelated, he said.

But the rules have already changed in ways that seemed improbable not long ago, Justice Sonia Sotomayor wrote in a separate dissent. “In just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars,” she said.

Charter schools could offer another test, although it's unclear where the Supreme Court will head next, Mark Joseph Stern, Slate's senior writer covering courts, said on a Slate podcast. Chief Justice John Roberts no longer controls the other five conservatives on this and other issues, he said, foreshadowing the 6-3 decision on abortion a few days later. In it, Roberts voted with the others to uphold Mississippi's abortion ban but, in a concurring opinion, disagreed with the five on overturning the larger right to abortion altogether.

Carson v. Makin was the third case in five years in which the court, with Roberts writing the majority decision, shifted the boundaries defining the separation between church and state.

In rural Maine, where towns were too small to afford their own high schools, the state paid the tuition to the private school of families' choice. As Roberts noted in his opinion, the state didn't impose restrictions on private high schools that were required of public schools. Private schools didn't have to accept all who applied; they didn't have to follow curricula that public schools adopted or give the state's assessments.

As long as private schools were accredited, parents could send their children to them, and the state would pick up the tab. There was only one exception: the private high school could not be a religious school that “promotes a particular faith and presents academic material through the lens of that faith.”

A state doesn't have to subsidize private education, Roberts said. But once it decides to do so, it cannot disqualify private schools solely because they are religious. “That is discrimination against religion,” in violation of the First Amendment's right to express religious beliefs without government interference.

In his dissent, Breyer noted that in a 2017 decision that Roberts wrote, the court decided that it was appropriate in some instances for a government to extend a content-neutral public benefit to churches that are available to organizations and governments. But it's one thing to pay for playground materials to make them safe for children, the issue in that earlier prior case, Trinity Lutheran Church v. Comer; “paying the salary of a religious teacher as part of a public school tuition program is a different matter,” he wrote.