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The Supreme Court’s Chance to Fight State Discrimination against Faith-Based Schools

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The Supreme Court’s Chance to Fight State Discrimination against Faith-Based Schools

National Review Online December 8, 2021
EducationPre K-12
OtherCulture & Society

To discriminate against schools on the basis of their religious activity is to discriminate against them because of their religious identity.

Today, the Supreme Court will hear arguments in Carson v. Makin, a case that concerns whether Maine may constitutionally exclude religious schools from participating in the state’s private-school tuition-assistance program. To those who have been paying attention to recent Supreme Court decisions in this area, the answer may seem obvious: Such discrimination is unconstitutional. The Supreme Court said as much last year when it held that Montana could not exclude religious schools from participating in its own school-choice program and, before that, in 2017 when it struck down a law that offered aid only to secular nonprofit organizations in Missouri.

In Carson, however, the justices must decide whether Maine’s discrimination against faith-based schools may be sustained on the flimsy distinction between a school that is religious and one that does religious things. In simple terms, the state argues that, while the Constitution would not allow it to deny aid to Catholic schools (or other faith-based schools) simply because they are Catholic, it could allow the state to deny aid to schools that sought to live out their faith during the school day by, say, having Mass or providing religious instruction.

As anyone who works in a faith-based school understands, that is a distinction without a difference. We hope the Court — which has previously avoided the question — will now make that clear. Indeed, as Justice Neil Gorsuch observed in a concurring opinion in Espinoza v. Montana Department of Revenue last year, the Constitution permits no distinction between religious status and religious conduct because “the right to be religious without the right to do religious things would hardly amount to a right at all.”

Partnership Schools — a network of urban Catholic schools in Harlem, the South Bronx, and Cleveland, for which I serve as superintendent — proves the point. Our nine schools serve more than 2,700 students from communities with some of the highest rates of child poverty in the United States. We provide our students with the academic preparation, moral formation, and skills development they need to flourish, and our results demonstrate that our approach has a transformative effect. Partnership graduates regularly beat national, state, and city student-achievement averages, and they earn more than $3 million in scholarships to attend the most academically rigorous high schools in New York. And we pursue this mission of service because of — and through — our Catholic faith.

Indeed, the very purpose of the Partnership is to revive struggling Catholic schools by building and delivering a rigorous education grounded in content, character, and faith. Our goal is to form students who know, love, and serve God by knowing the world and by loving and serving others. We understand that there is no such thing as a values-neutral school. Because our values derive from our Catholic faith, so too must the formation we provide at our schools.

The idea that the Partnership — or any faith-based school — could effectively serve our students and communities by somehow excluding religion from the education we provide in our schools demonstrates a fundamental misunderstanding of the way values drive school culture. A school is only as effective as its mission, values, and purpose are clear, and when those values and beliefs are lived out by the faculty, staff, and leaders every day. Our schools, then, just as any other, can only be effective if everything we do is aligned with and grounded in our mission, values, and beliefs. Indeed, our schools’ historic successes are a direct product of their strong, intentional, and faith-filled cultures that derive from that mission.

And while the Partnership is exemplary of the necessary integration of faith into the education at a religious school, we are hardly alone. Consider the amicus brief that the Partnership filed along with organizations dedicated to Islamic and Jewish education ahead of the oral argument in Carson, which underscores that this commitment to religious integration is shared across an array of faith traditions. To discriminate against these schools on the basis of their religious activity is to discriminate against them because of their religious identity.

Maine’s discrimination against schools that provide religious instruction is not only flawed in theory but also deeply harmful in practice. Over the last two decades, and in particular the past year, school-choice programs have proliferated across the country as parents demand better educational opportunities and greater agency in deciding who will form and prepare their children for life. Religious schools, like the Partnership’s, are a critical component of that movement and a primary source of the vibrant educational pluralism that it hopes to foster.

Without programs that give low-income parents the same school choices as wealthier ones, many families — and those most in need — would be unable to exercise this agency and to enroll their children in the schools they believe to be best for their children. An endorsement of Maine’s arbitrary discrimination against schools simply because they pursue a mission grounded in religious conviction would therefore deny many families the ability to send their children to the successful schools available to others.

The Supreme Court must make clear that states like Maine may not deny families exceptional educational opportunities by excluding select schools based solely on their religious beliefs.

This piece originally appeared at National Review Online


Kathleen Porter-Magee is the superintendent of Partnership Schools, a network of nine urban Catholic schools, seven in Harlem and the South Bronx and two in Cleveland.

Photo by tiero/iStock