The Implications of Outsourcing Discrimination Through School Choice Under the Supreme Court's Recent Decisions

• In Event: Expanding Public Funds and Advocacy for Religious Schools via School Choice: Cultivating or Curtailing Equity?

Abstract

This paper will present a legal analysis that explores the intersection of the Fulton (2021) and Espinoza (2020) U.S. Supreme Court decisions, as well as the potential impact of the upcoming Carson case. The paper focuses on certain political and policy implications of the cases’ holdings and rationales. Specifically, state policymakers may be forced to confront what the author calls the outsourcing of discrimination.
This paper will provide an analysis of how Espinoza greatly narrowed the 2004 Locke v. Davey holding concerning the “play in the joints” between the Religion Clauses. In particular, the Court has drawn a distinction between discrimination based on religious “use” (possibly allowed, as part of the play in the joints) and discrimination based solely on an institution or individual’s religious “status” (essentially disallowed, because it is subject to strict scrutiny). The 2022 decision in Carson, the Maine tuitioning case, will thus likely set forth a clear rule concerning laws prohibiting the use of public money for the religious purposes of inculcation and proselytization.

Further, this paper will discuss the past importance of Establishment Clause concerns which would further evaporate if Justices Barrett and Kavanaugh decide in Carson to remove the Espinoza distinction between use and status. Instead, the Free Exercise Clause would require that taxpayer money be made available for religious uses whenever it is made available at all. In the context of education, this means that when a public educational service is contracted out to private operators – potentially including via charter schools, but certainly including voucher-receiving private schools – the contracts must (a) be available to religious entities, per Espinoza; (b) be available for religious uses, possibly per Carson; and (c) result in those religious entities being allowed to elude anti-discrimination laws or regulations that conflict with religious beliefs (as suggested in Fulton by two Justices and as advocated by three others).

Given the holding in Espinoza, the concurrences in Fulton, and the issues framed by Carson, policymakers must confront some difficult decisions around school-choice policies involving non-governmental management or operation of the schools. Charter schools may be swept into the scope of Espinoza and may be determined to not be state actors (see Garnett, 2020), meaning that the Establishment Clause would not directly apply (see, however, Black, 2021). Religiously affiliated, privately run schools also may be free to engage in the type of discrimination that public schools (and secular private schools) must avoid.

In brief, depending on the outcome of Carson, privately run schools may also be allowed to use public funds for religious instruction. Following from such legal outcomes, blue-state policymakers would likely feel compelled to move all discretionary educational services in-house – to be provided directly by government employees. In contrast, many red-state policymakers can be expected to embrace the prospect of churches having equal access to government contracts and interjecting religious teachings while carrying out contracted work. This paper concludes that, unless the Court reverses course, in less than a decade we are likely to see this clear division among the states.

Author

• Kevin G. Welner, University of Colorado Boulder