A potentially dangerous change in opinion by the Washington Post editorial board revealed itself the other day in a column entitled, “The Supreme Court is eroding the wall between church and state.” The piece was decrying the United States Supreme Court’s decision regarding Washington State high school football coach Joseph Kennedy, who once led religious prayers at the fifty yard line after games. The Post editors commented on the court’s finding in Mr. Kennedy’s favor this way:

“A conservative Supreme Court majority is redefining the constitutional order — dismissive of Americans’ privacy rights, committed to dangerous pro-gun dogmas and, as the court showed twice this month, alarmingly permissive of mixing religion and government.”

It is not the newspaper’s opinion on Kennedy v Bremerton School District that I find worrisome. It is the concluding paragraph in its editorial that generates concern:

“Along with another court decision earlier this month, in which the justices ordered the state of Maine to finance tuition at religious schools under a statewide voucher program, the majority appears determined to rule in favor of those seeking to use government resources to advance their religious beliefs — and against those who object to dismantling the wall between church and state.”

Now, here is the problem. The United States Supreme Court has been a defender of the right of parents to utilize private school vouchers in sectarian institutions beginning in 2002, with Zelman v. Simmons-Harris, the case in Cleveland, Ohio won by Clint Bolick when he worked for the Institute for Justice. Before that ruling was issued the editorial board made this argument:

“In principle, there is no reason why a carefully designed voucher program should offend the Constitution. The money is given to parents, not directly to schools, and it flows to schools only as a function of parental choices about where to send their children. In this sense, vouchers are not all that different from other programs the court has already upheld — though approving them is a step the justices have not previously taken. The key is for the justices to avoid using a broad principle that would allow more direct aid to parochial schools.”

The Post started writing editorials supporting school choice programs involving religious schools following my meeting with columnist Colbert King in the summer of 1999 in which I asked him to publicly argue in favor of a private school voucher plan for the District of Columbia. Mr. King was the deputy editorial page director from 2000 to 2007. This backing was critically important since public policy makers, include Supreme Court Justices, often read the Washington Post. The role of this newspaper in the national fight for increased school choice was recognized by Mr. Bolick in his book Voucher Wars in the aftermath of the Post editors coming out in opposition the the Milwaukee school voucher program:

“And only a few years later, the Post abandoned its reticence and became one of the nation’s most consistent and influential backers of school choice experiments,” (page 58).

The newspaper has stayed the course for two decades. Last year, the editorial board wrote one of its strongest defenses of school choice reacting to Congressional attempts to shutdown Washington D.C.’s Opportunity Scholarship Program in a piece entitled, “Why are unions and Democrats so opposed to giving poor children a choice in schooling?” Please pay careful attention to the reference to religious schools.

“It is striking how some foes of the scholarship program — and here we think of D.C. Del. Eleanor Holmes Norton (D) — see no inconsistency in their opposition to this program and their support for the $40 million DC Tuition Assistance Grant program, which provides funds for college. Like the opportunity scholarship program, DC TAG can be applied to private schools in the metropolitan area, including religious schools, but unlike the opportunity scholarship program, wealthy families (with incomes up to $515,000) are eligible. Where is the logic in supporting a tuition assistance program available to affluent D.C. families and not one that only benefits very low-income D.C. families? To be sure, the quality of the city’s public schools has improved since the program was enacted — perhaps in part due to competition from school choice — but that doesn’t mean that poor parents deserve no choice in where their children go to school.”

The Washington Post’s editorial board’s recent missive on the U.S. Constitution’s separation between church and state is potentially an extremely menacing precedent.

Last week, the Washington Post’s Valerie Strauss wrote one of her “Answer Sheet” columns that was titled “Supreme Court Likely to Drop School Voucher Bombshell.” Ms. Strauss is referring to the case Carson v. Makin which will be ruled on by the U.S. Supreme Court later this month. Here is a summary of the case: Maine issues educational scholarships to children to attend private schools when there is no local public school in the area in which they live. However, it prevents these vouchers from being used at religious institutions because the State believes it would then be violating the Establishment Clause of the U.S. Constitution. The Post reporter goes into hysterics to describe what would happen if the court decides in favor of the parents:

“In Carson v. Makin, the conservative majority of the Supreme Court is likely to require Maine officials to use public funding to subsidize religious teaching and proselytizing at schools that legally discriminate against people who don’t support their religious beliefs. A ruling in favor of the families would ‘amount to a license to outsource discrimination,’ according to Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder’s School of Education.”

She goes on:

“Welner also wrote that a ruling against the state could affect charter schools, which are publicly funded but independently operated. A Carson ruling in favor of the families may mean that states could be seen as ‘engaging in discrimination if they did not allow a church or religious entity to operate a publicly funded charter school as a religious school.’”

I was not exaggerating, was I? There are just three problems with her reasoning. The Supreme Court now has a perfectly consistent record of allowing public funds to go to religious institutions when they are providing a public function.

Year 2002: The Supreme Court ruled in Zelman v. Simmons-Harris that parents could utilize private school vouchers to send their children to religious schools. The logic behind this finding was that the money for educating the students is going to the parents, not to support the school.

Year 2017: The Supreme Court ruled in Trinity Lutheran Church of Columbia, Inc., vs. Comer that funds Missouri was providing to enhance playgrounds at public schools could not be prevented from going to private religious institutions. As I pointed out at the time, the majority opinion stated that, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.” 

Year 2020: The Supreme Court ruled in Espinoza v. Montana Department of Revenue that a Montana tuition school tax credit program could be utilized for children to enroll in parochial schools. In my post about this decision I included Chief Justice John Roberts’ comment that “The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.”

So now we have Carson. If history is any guide, then the Court will find in support of the Maine parents. By the way, this case, as well as Espinoza and Zelman were all argued by the libertarian Institute for Justice. Here comes another victory for this highly impressive group.

One final point. I have no problem with a charter school having a religious mission. I made the same argument when Center City PSC was created from the conversion of six Catholic schools. I have no doubt that the Supreme Court would support my point of view.