The gimmick behind most Supreme Court decisions is to find a set of circumstances that allows the Court to kick a can down the road rather than to settle a large outstanding issue even if the Court does shift slightly the balance between obdurate public interests. I would call this doctrine of constitutional interpretation “consequentialism” because the Court becomes legitimately, in its own lights, concerned with the consequences of its decisions more than it is with the particular legal reasoning it engages in. So much for “textualism” or “originalism” or even “moral principle” as serving as the basis of Supreme Court decisions. The exceptions to consequentialism are very rare and they are often cited. Brown v. Board of Education was understood as a departure from consequentialism but understood as necessary because to uphold Jim Crow in schools was simply beyond the pale after the Second World War, and even Roe v. Wade, a notable non-consequentialist decision, hedged its bets by insisting that women had to consult their doctors before having an abortion, which is something that has now been superceded so that it is purely the woman’s decision whether she should have an abortion. The doctor doesn’t get to say whether it is a wise decision.
A good example of consequentialism is the Supreme Court’s decision a few days ago in Espinoza v. Montana, where it was decided that scholarships funded by the state and not subject to taxation could not be withheld from religious schools if that is where parents decided to send their children. Chief Justice Roberts, in an opinion written for the 5-4 majority, said “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools because they are religious.” Put so categorically, the opinion is hard to challenge. It seems merely right not to discriminate against religion. That would exhibit hostility to religion rather than neutrality towards religion. But persevere with the question. Why not specifically disqualify religious schools? Religious schools are different from other private schools because they are part of an establishment of religion and the First Amendment says that the government cannot get involved with those. So this is a case of discrimination for a relevant reason. Otherwise we are in the never never land of constitutional reasoning where saying “no” evokes the sense of why the “no” is absolute and there is no quarreling with that metaphysical stance.
The decision makes more sense if you look at it in a consequentialist way. The Court is moving the relation between church and state very incrementally, making it slightly easier for religious schools to get money without really taking up the whole issue of whether schools are exceptions to the First Amendment rule about establishments of religion. A radical decision would say they were not included in the ban but performed the same special function as all schools, which was to educate the young and so not really essentially religious at all.
Support for that more radical view is what already occurs with religious and private schools in New York State and, I presume, in other states as well. Schools can qualify for reimbursement from the state for engaging in various activities that further state goals. They can be reimbursed for keeping attendance records and health records of vaccinations. But if that is the case, then there is no reason they cannot be reimbursed for teaching science or math or even social studies because those are subjects the state thinks need to be taught and the private and religious schools are doing it in lieu of the public schools. Then the only part of the school budget that would not be reimbursed would be for courses in religious instruction which, as I understand it, vary from just one course a year in the curriculum to making up half the curriculum (or even more than that) in yeshivas. So, in principle, private and religious schools would be subsidized by the state and those yeshivas who have virtually no secular education would be penalized or have their accreditation removed because they were not meeting the educational criteria the state mandates for all schools. So Espinosa v. Montana opens the door for full or just about full funding by the state for private and religious schools, even if it does so through the technicality that parents are deciding to send their children to religious schools (which does not make the source any less tainted, if that is the point of view you want to take) just as happens in many European countries where religious education for both minority and majority groups are subsidized by the nation, but the decision does so by finding a way to do that in a very little bit and so just kicks the can down the road.
Broaden the issue beyond its consequentialist parameters and take up the sociological issue of the similarities and differences between religious and public schools. Public schools are not neutral entities in the battle between church and state. They have a secular ideology which was best summed up by John Dewey. They are out to educate children to be productive citizens in a democracy and the tool whereby they are made ready for work and their duties as voters is scientific experimentalism and particularly the doctrine that people are creatures of their social environment rather than just of their genes (or “races”). So public schools have a point of view that challenges the point of view of those who champion revealed religion or any particular religious heritage. That does not mean religion cannot be respected in public schools. It could be taught as a secular subject, let us say as the history of religion, or as part of humanities courses where religious texts would come under the same level of scrutiny as secular literary texts, but that would be very hard to do because most teachers are not equipped to do so and religious texts could easily enough be treated as a basis for advocacy rather than analysis. So just as I am not sure that I want teachers to engage in moral instruction or sex education, I am not sure they should be trusted to dispassionately engage with religion. The differences between religious and secular education are therefore profound and so it is wise social policy not to get the two mixed up, which does not mean that the state could not support the two systems, only that the two do not bleed into one another excerpt when religious schools teach chemistry or physics, which rarely, these days, is construed to have much religious content.
As a practical matter, however, public schools have to confront religious issues all the time even when following their secular ideologies. I remember my elementary school and junior high school in the Central Bronx, which was, at the time, a largely Jewish enclave. Every year there was a Christmas Concert in which the assembled students sang Christmas carols. Nobody thought that their Jewishness had been intruded upon by participation in what seemed to us an American holiday devoted to gift giving and “good will towards men”. The curriculum did take note of the Jewishness of the student body. We learned about Jewish heroes in American history, all the way back to Hyam Solomon who spent his time in coffee shops in Manhattan during the Revolutionary War buying and selling Continental bonds so as to keep their prices up. That too was of service. All this while what I would now consider the slightly Red faculty led us in songs in praise of the United Nations, this in the late Forties. So I find neither surprising nor upsetting that present day public schools spend more time reviewing Black and Puerto Rican history than was the case in my time or assigning literature written by people from those groups, though I think it is a privation if those students are not also assigned white Nineteenth and Twentieth century authors.
Now, that was and is an exercise of the public schools responding more to ethnic than to religious issues. It suggests, however, a solution to the question of the proper limits of religion in school so as to make room for religiously oriented schools. What is acceptable depends on the community that encloses the school. If a school is in an overwhelmingly Christian community where, as used to happen, and perhaps still does, the football coach says a prayer with his players, that may offend some students if there are very few students with minority religious views in that school and community. They or the atheists among them may feel intimidated, even though the biology teacher is on the side of the atheists in that he teaches evolution, the sciences secular subjects, as are English and social studies so long as the teacher does not say that the way history plays itself out is due to divine revelation, which I assume very few teachers do nowadays. When I was teaching college sociology, I did have as students people who thought that the God mentioned by Thomas Jefferson in the Declaration of Independence was a supernatural god rather than the Deist god who presides over creation, but that is an error easily corrected in college, and expected to be necessary so long as American high school education is so much inferior to European education, even if American students do catch up in college. Moreover, if the number of minority religion students in that mostly Christian school goes up even a little bit, then the minority can feel more comfortable and simply regard the high school coach as reflecting the majority culture rather than showing disdain for them.
The question is not what to do to placate Jews or Muslims or atheists who find themselves in a Christian atmosphere. Rather, the real problem is what to do for the students who may want to find a way to abandon their religious paths and so pursue their own individuality, schools supposedly occasions where students can find their own way, regardless of their families, so they can become the sort of people they choose to be. Schools in a democracy are supposed to be an equal playing field that allow students to develop independent of their parents or the community’s point of view. A rich and diverse curriculum is the answer to that and so there is no need for Supreme Court intervention to make sure that schools are tolerant or that religious schools do not get public money. Schools, even those named after saints and with crosses in their logos, are not part of a religious establishment so much as they are arms of the state. There is a need for higher standards that will help poor kids escape their poverty and Amish students to come out of the closet. Supervision of yeshivas and Christian academies is more important than who pays the bill.