Many observers of the Dec. 8 oral arguments at the Supreme Court in Carson v. Makin seem convinced the State of Maine is going to lose, and Register commentator Andrea Piccotti-Bayer has offered great insights why they should (see here and here). I’m also hopeful the Court will strike down Maine’s discriminatory ban, but I want to argue there are unexplored dimensions of this case worth probing.

To recap: Maine has a program to pay private school tuition for children who lack a public school in their vicinity. The program allows payments to religious private schools, but not if they actually teach religion. The suit was brought by two families whose choice of religious school was barred by the program. They are seeking to have that limit declared unconstitutional.

Maine is a big state with not a lot of people, so sometimes there is no local public school. The program originated as an effort on the state’s part to discharge its obligation that school-age children get an education when no local public school was around. The program did in fact fund attendance at private religious schools that taught religion until the 1970s when the Maine Attorney General concluded, on the basis of then-Supreme Court precedents (that era was the apex of judicial hostility to religious schools) that state money could not go to a school that actually taught religion.

Believers may be wondering whether this is a distinction without a difference, but there is a difference. There are many schools in the United States that were once established by religious groups but have, over time, lost their religious identities without necessarily formally disassociating from the sponsoring denomination. (Not everybody was like many Catholic colleges who, having to choose between serving God and mammon, queued up for the Almighty … Dollar. They formally severed ties with their originating communities, like the Jesuits, usually by creating independent, secular, and lay-dominated boards of trustees to insulate the entity — the school — from the original sponsoring religious order or diocese.)

Catholics, of course, instinctively connect being religious with doing religious things. The secular American mind very much disputes that nexus. The Constitution actually guarantees you the right to “free exercise of religion” (i.e., doing religious things) but you’ll hear plenty of secularists instead lauding “freedom to believe.” 

Don’t let them pull that bait and switch!

“Freedom to believe” means you can think whatever you want inside your little head, but you have no right to make it any more public than that. Once upon a time, we might have said you believe what you want inside your church, “as long as you keep it in the sacristy,” but the tyrannical reach of numerous officials during COVID-19, claiming a right to regulate church attendance (numbers in churches, whether you can sing, whether you must segregate the redeemed vaxed from the unwashed unvaxed, etc.) shows that the state would like to get around to defining even church attendance as doing and not just believing. There were plenty of secularists last year who insisted you could just as well worship through your computer screen. The even more aggressive (and their useful idiots among churchgoers) even dared tell you that abstaining from worship was “true Christianity” — “loving” your neighbor by staying away from him.

The Supreme Court ruled last year, when it struck down Blaine Amendments in state constitutions that simply prohibited funding to religious schools because they were religious, that you cannot discriminate on the basis of believing. In Carson, the Court’s been asked to strike down discrimination on the basis of doing.

Catholics probably see this as a slam dunk. Secularists want to shore up the dike of a meaningless distinction.

Most of the discussion on this case has turned around the religious dimension of the school. That’s probably because most of the discussion is controlled by lawyers, who like to limit the aperture of a discussion to a “question” they define. As a philosopher and theologian, I want to open the aperture.

I want to open it to the question: what is the state paying for?

Is the state paying for a “public” education, in the best approximation it can find? Maine’s attorney argued as much, saying the tuition payments are the state’s “default program” where there are no “public schools.” Asked then what makes a tony prep academy (which is covered) different from a school with religion in its curriculum, Maine admitted that the former is “not inculcating religion.”

In other words, religion is a disqualifying factor that renders one school qualitatively different (and, apparently, worse) from another. That’s what, in Maine’s view, makes it most like a public school.

But is Maine really paying for a “public school education” or an “education?” For a long time, we’ve conflated those two concepts, but they are conceptually distinct, and perhaps we need to tease out that distinction.

A child in Maine subject to that state’s compulsory school attendance laws meets their requirements by attending a public school or a private school in which religion is taught. If attendance in a particular school meets compulsory schooling requirements, presumably that institution’s credentials also give their holder comparable rights and privileges, e.g., a grade school diploma entitles the student to attend high school. So, in terms of critical qualifications, those schools are equal and Maine believes that.

When it comes to enabling the student to go to those schools through the use of public funds, however, Maine suddenly draws a distinction between what it believes (the schools are equal for legal purposes) and what it does (subsidize a student’s tuition). Indeed, Maine has arguably changed its faith, because while it hitherto believed the public and private schools were equal for school attendance purposes, it now suddenly believes they are unequal for school funding purposes. 

So, public and religious schools are sometimes equals, sometimes not.

This same sleight-of-hand is present in Maine’s Constitution. Article VIII, Part I, Section 1 declares that “A general diffusion of the advantages of education [is] essential to the preservation of the rights and liberties of the people….” Now note the bait-and-switch: “to promote this important object” the Legislature can require towns to pay “for the support and maintenance of public schools” (emphasis mine).

Do private religious schools that meet state school attendance requirements not contribute to the “general diffusion of the advantages of education?” Do they fail to foster “the rights and liberties of the people” (one of which is that people not be “hurt, molested, or restrained in that person’s liberty … for worshipping God,” i.e., free exercise — Maine Constitution, Article I, section 3)?

A state would argue it made a policy choice how to promote the “general diffusion of the advantages of education.” My question: can it make that choice in a manner discriminatory to free exercise of religion?

In other words, has the state been mistaken in assuming that it was fostering “the rights and liberties of the people” by paying for a public education rather than for an education that met schooling requirements of the student’s own choice?

I see Carson as more than a case challenging vestiges of anti-religious discrimination. I would argue there are two forms of discrimination afoot here: anti-religious and pro-secularschooling discrimination. 

Most states have provisions in their constitutions imposing some obligation on the legislature to support a “thorough and efficient” (New Jersey) or some other kind of “education” for students. The default position has been that this means a “public” education.

But does it necessarily mean a “public” education? If a school meets a state’s school attendance norms, why is it a second-class school for other purposes? Isn’t the whole reason we have compulsory school attendance and require jurisdictions to support schools (I didn’t say “public schools”) is because we want to promote education? 

Historically, there has been a fast-and-loose slide between what arguably is the state’s commitment to support education and the monopoly in certain critical aspects (mostly money) of public schools. That conflation has served various ideological goals in different eras. For the Nativists, it was a chance to “Americanize” students (i.e., make them generically and culturally Protestant). For the Deweyites and the schools of education they created, it was making “critical thinkers” who were not enslaved to readin’, ’ritin’ and ’rithmetic. For today, is it the commitment to immerse students in various ideologies, as the Virginia gubernatorial race showed and as some lawyers argued in the Carson case?

Isn’t it time we disentangled education from the public school?

The question that has always been lurking in the background is: what is education for? Is it for the student, or is it for the school? If the former, then any school the state deems imparting an education that meets its schooling requirements (and no state can outlaw religious schools — Pierce v. Society of Sisters) is suitable for the student and deserves educational support. In other words, the choice is the student’s, and impairing that choice is discriminatory. If the latter, then we’ve embraced the bizarre notion that the subject of education is a thing — a school — and students are simply animate furniture moving in and out of it.

I offer this outline of a vision to foster further refinement of an argument that can disestablish the privilege enjoyed by public schools enjoy over other equally qualified educational institutions, in the hope that our educational praxis finally become personalistic, i.e., finally reckon with what matters: children, not their school.