From Everson to Carson, the Court Cases That Opened the Door to Choice

For most of a century, the Supreme Court's approach to religious schools and public money resembled a game of Mother-May-I in which Mother kept changing her mind. One decade the answer was a grudging yes, the next a firm no, and the lawyers who had to advise a state legislature were left squinting at tea leaves. A governor with a school choice bill could read the Court's opinions and conclude that anything was possible, or that nothing was.

Then, over about two decades, the fog lifted. This timeline walks the cases in order, with dates and holdings, and with one line each on why it mattered to a family trying to find a school for a child. I am going to be plain about what each case decided and what it did not, because the people who oversell these decisions do the cause no favors.

February 10, 1947: Everson v. Board of Education

The setting was Ewing Township, New Jersey. The township reimbursed parents for the cost of sending their children to school on public buses, and that included parents of children attending Catholic parochial schools. A taxpayer sued, claiming this amounted to the state aiding religion. The Court ruled 5 to 4 that the reimbursement was constitutional. Justice Hugo Black wrote the opinion.

Here is the odd thing. Black's opinion upheld the program but surrounded the holding with sweeping language about a "wall of separation" between church and state, and he said that no tax could be used to support religious activities or institutions. Four justices dissented, arguing the program did cross the line. So the case planted two seeds at once: one for the principle that a neutral benefit to families is permissible, and one for the principle that the government must keep its distance from religion.

Why it mattered to a family: the bus ride. The Court said a state may help all children get to school safely, whichever school the parents chose. That was the first small crack in the notion that anything touching a religious school was radioactive. The history of that famous phrase is in where 'a wall of separation' really comes from and what it was built for.

June 28, 1971: Lemon v. Kurtzman

Then the pendulum swung. Pennsylvania and Rhode Island had passed laws to help nonpublic schools, supplementing the salaries of teachers who taught secular subjects and reimbursing schools for some costs. In Lemon v. Kurtzman, Chief Justice Warren Burger wrote an opinion striking down both programs. The Court announced a three-part test: a law must have a secular purpose, its primary effect must neither advance nor inhibit religion, and it must not foster excessive entanglement between government and religion.

That test, called the Lemon test, haunted lawmakers for the next fifty years. The "entanglement" prong created a trap: to be sure that state money was not used for religious teaching, the state had to monitor the school, but the monitoring itself counted as entanglement. Heads, you lose; tails, you lose. In 1973 the Court applied similar reasoning in Committee for Public Education v. Nyquist to strike down a New York program of tuition reimbursements and tax benefits for parents of private school students. The story of how that test finally lost its grip is told in the three-part test that haunted churches for fifty years is finally gone.

Why it mattered to a family: it closed the door. After Lemon and Nyquist, a state that wanted to help parents with private school tuition faced a heavy presumption that it could not.

1983: Mueller v. Allen

The door did not stay shut, because the Court distinguished between aid to schools and benefits to parents generally. Minnesota allowed all parents, whether their children attended public or private schools, to deduct certain expenses, including tuition, textbooks and transportation, on their state income tax returns. In Mueller v. Allen, decided in 1983 by a vote of 5 to 4 in an opinion by Justice William Rehnquist, the Court upheld the deduction. The key was that the deduction was available to every parent, and that any money that ended up at a religious school got there through the independent choices of individual families.

Why it mattered to a family: it established the template. A neutral benefit, available widely, and directed by the choices of parents, could survive. Nearly every successful program that followed borrowed that logic.

June 27, 2002: Zelman v. Simmons-Harris

The big one. Cleveland's public schools were in such crisis that the state had taken over the district, and Ohio had created a program that gave tuition aid to families so they could choose among participating private schools, along with tutoring aid for those who stayed. Most of the private schools that signed up were religious, and taxpayers sued. The Court ruled 5 to 4, in an opinion by Chief Justice Rehnquist, that the program was constitutional. Because it was neutral toward religion and offered a real range of options, including public magnet and community schools and charters, the money reached religious schools only through the genuine, independent choices of parents.

Just as important, the Court did not require every state to do it. It simply said the federal Constitution allowed it.

Look at how the majority reasoned, because it is the template for every program drafted since. The justices asked whether the program had a valid secular purpose (helping poor children in a failing district, which it plainly did), whether aid went to a broad class of beneficiaries defined without reference to religion, and whether the money reached religious schools only because individual parents chose to send it there. A program that checks those boxes is not the state establishing a church. It is the state handing a family a benefit and respecting what the family does with it. The dissenters saw it differently, and the 5 to 4 split tells you how close the question was. But the majority's logic has held for more than two decades.

Why it mattered to a family: Zelman made a voucher program possible as a matter of federal law. For the first time, a family in a failing district had a path that no federal court was going to close. The mechanics of the program it blessed are in How a School Voucher Works, From the State Check to the Classroom Door.

2004: Locke v. Davey, the detour

I mention this one because it complicates the story honestly. Washington State had a scholarship, the Promise Scholarship, for talented students, but it excluded students pursuing a degree in devotional theology, which is a degree to train clergy. A student who wanted to major in pastoral ministry sued, arguing that this singled out religion for a penalty. The Court ruled 7 to 2 that Washington could do this. Chief Justice Rehnquist wrote that the state's refusal to fund training for the ministry was a "play in the joints" between the Establishment Clause and the Free Exercise Clause, and the exclusion reflected a long-standing historical interest in not funding the clergy.

Justices Scalia and Thomas dissented. Scalia observed that the state was denying a benefit solely because of a student's chosen religious vocation. The case would be a thorn in the side of school choice advocates for years, and the later decisions took care to explain how to read it.

June 26, 2017: Trinity Lutheran Church v. Comer

Missouri ran a program that gave grants to nonprofits to resurface playgrounds with recycled scrap tires. A church-run preschool and daycare in Columbia, Missouri applied. The state ranked its application highly, then rejected it solely because it was owned by a church, citing a provision of the state constitution against aiding religion. The Court ruled 7 to 2, in an opinion by Chief Justice John Roberts, that excluding the church from an otherwise neutral public benefit program, only because of its religious identity, violated the Free Exercise Clause.

The case concerned a playground, not a classroom, and the Court included a footnote saying it was addressing only the playground. Do not oversell it. But the principle was large: when the government offers a program to the public, it cannot disqualify a participant because of what he is.

Why it mattered to a family: it flipped the question. Before Trinity Lutheran, the debate was whether the state was allowed to include religious institutions. After it, the debate included whether the state was allowed to exclude them.

June 30, 2020: Espinoza v. Montana Department of Revenue

Montana had created a tax credit for people who donated to organizations that gave scholarships to children attending private schools. The state revenue department then adopted a rule, called Rule 1, barring the use of those scholarships at religious schools, citing a provision of the Montana Constitution that prohibits aid to schools controlled by a church. Parents whose children attended a Christian school in Kalispell sued. The Montana Supreme Court struck down the entire scholarship program rather than the religious exclusion.

The U.S. Supreme Court reversed, 5 to 4, in an opinion by Chief Justice Roberts. The Court held that a state that decides to subsidize private education may not disqualify schools from the program simply because they are religious. Because Locke had concerned the training of clergy, a distinctly religious use, the Court distinguished it. A concurring opinion by Justice Alito traced the history of the no-aid provisions to the anti-Catholic movement of the nineteenth century. That history is told in full in The Blaine Amendments and the Old Bigotry Still Sitting in State Constitutions.

Why it mattered to a family: it reached into state constitutions. A state clause that had been invoked for a century to block any aid to religious schools could no longer be used that way against a family in a program open to private schools.

June 21, 2022: Carson v. Makin

Maine has an unusual arrangement with long roots. Many rural towns in the state have no public high school of their own, and the town pays the tuition for each student to attend a public or private school of the family's choosing. But since 1981, Maine had required that private schools in the program be "nonsectarian." Parents who wanted to send their children to Christian schools were told that the town would not pay. They sued.

The Court ruled 6 to 3, again in an opinion by Chief Justice Roberts, that Maine's exclusion violated the Free Exercise Clause. The state had argued that it was not discriminating against religious status, only refusing to pay for religious instruction, which is a use. The Court rejected that distinction in this setting, saying that the state's refusal to fund a school because of what the school teaches is just as much a penalty on religion as refusing to fund it because of what it is. Justices Breyer and Sotomayor wrote dissents.

Why it mattered to a family: it closed the loophole. After Espinoza a state could no longer exclude schools because they are religious, and after Carson it could not skirt that rule by pointing to what the school teaches. A family in a program open to private schools can choose a religious school without losing the benefit. The companion piece, Five cases that ended America's religious penalty in school aid, follows the same arc with a different focus.

What the cases do not do

The honest list of limits is shorter than critics claim and longer than enthusiasts admit.

1. No state has to create a program. The cases say what a state may do and what it may not do once it decides to fund private choice. They do not require any state to adopt a voucher, an account or a tax-credit scholarship.
2. State constitutions still matter. Some state courts have struck down programs under other clauses, such as uniformity or adequacy provisions in the state constitution. The federal cases remove one major obstacle, not all of them.
3. The reasoning is about equal treatment. The principle running from Trinity Lutheran through Carson is that the state must not penalize religion in a program that is otherwise open to everyone. It is not a ruling that the state must favor religion.

Here is a practical way to use the list. Suppose your legislature is debating a scholarship bill, and an amendment appears that says funds may be used at "any nonreligious private school." Before these cases, that would have been a routine drafting choice. After Espinoza and Carson, it is a flashing warning light. The lawyer in the room should be asking whether the line excludes schools for what they are, and if it does, whether it is defensible at all. A bill drafter who ignores 2020 and 2022 is writing a lawsuit.

A good test of this reading is the fate of the old Lemon approach. The Court has since said it long ago abandoned that test, which is why modern cases look to history and tradition. If you want to see how the same reasoning plays out in a different part of the school day, five school-day situations and what the prayer rulings really decide is the place to start.

The bottom line

• The Supreme Court spent seventy-five years working from Everson in 1947 to Carson in 2022, and the direction was clear: a neutral program may include religious schools, and a state may not exclude them for being religious.
• The key rulings in order: Everson (1947), Lemon (1971), Mueller (1983), Zelman (2002), Trinity Lutheran (2017), Espinoza (2020), Carson (2022). Memorize those seven and you can follow any school choice argument.
• Federal law is no longer the main obstacle to school choice. State constitutions, state legislatures and funding formulas are, so that is where the fight now lies.
• If your state has a choice program, read its eligibility rules for any exclusion of religious schools. After Espinoza and Carson, that exclusion is on shaky ground.
• If your state has no program, ask your legislator why, and do not accept "the Constitution won't allow it" as an answer.