The Supreme Court Is Poised to Make Critical Decisions in School “Culture War”

The cultural battle over how our children are educated is escalating. In its final days, the tight and highly partisan Virginia governor’s race fixated on some parents’ opposition to education about racism. We have seen physical violence at school board meetings over everything from masks to school mascots. One of the biggest conflicts is being carried out at the highest level: the Supreme Court.

At an oral argument in December, the justices asked striking political questions: Does the government have to fund schools that “don’t want to have gay students” or gay teachers? What about schools that teach that “the man is the boss of the woman”? And “Would you say the same thing about a school that teaches critical race theory?”

Those are the stakes of the Carson v. Makin case before the Supreme Court. Technically, the case has a narrow scope: a state tuition assistance program that excludes religiously “sectarian” schools. Backed by conservative legal organizations, parents who want government money to send their children to Christian schools are challenging that exclusion. While the case is focused on religion, the justices recognized their decision’s far greater ramifications — for LGBTQ rights, gender discrimination and real talk about racism — during the oral argument in the case last month. Public opinion figured highly in the court’s debate over these ramifications, as the justices and legal advocates used words like “divisiveness” and “strife” dozens of times.

The oral argument also revealed that, unsurprisingly, the solidly conservative Supreme Court is skeptical of the exclusion of sectarian schools. While many liberal commentators have sounded the alarm about this continued rightward drift, they often miss an important fact: The justices, by putting themselves at the forefront of the national political fight over education, admit that legal institutions are vulnerable to popular pressure and social movements. The power of movements and public opinion set the battlefield for issues often grouped under the category of “culture war” — from masks and vaccines to anti-racist education to LGBTQ rights and gender equality — both in and out of court.

This political vulnerability is a powerful opportunity: By winning over the public to our movements, we stand a better chance of winning in court.

What does this mean for our demands in the educational culture war now playing out in the high court? We can’t fall back on the elitist approach of decrying parents’ demands for more involvement in their kids’ education. That helped lose the Virginia governorship — “I don’t think parents should be telling schools what they should teach” was, is, and always will be a losing message. We should support community control of all essential institutions, including education. Conservative parents, backed by the rich and powerful, are behaving outrageously at school board meetings. But we have to respond with people power of our own.

And we certainly shouldn’t rest our case, as some commentators have, on lawyer-splaining “the text of the First Amendment,” which prohibits “establishment of religion” by the government, to our opponents. The “textualist” approach to law, invented by right-wing judges and, unfortunately, often conceded to by their liberal colleagues, pretends that the law exists only as explicitly written. If we accept that, then we have to say goodbye to our rights to privacy, abortion, marriage, gender equality or anything else not explicitly written out in the Constitution. And when the law is ambiguous — what does “speech” mean in the First Amendment? — judges use textualism as a cover to apply their politics and call it the law’s “plain meaning.” Our social movements should bring these politics out in the open, for the public to debate and decide.

Carson and its ilk are dubious legal challenges presented by the religious right. We have to defend LGBTQ and other rights against this encroachment. However, we must advocate for our rights without denying the importance of free exercise of religion (which is also in the text of the First Amendment). We should defend everyone’s right to an education and freedom to practice their religion, be free from others’ beliefs, or avoid religion entirely.

Striking the balance between religious freedom and separation of church and state is a matter of democracy. Even the liberal justices acknowledge that there is some “play in the joints” between these principles and neither is absolute. They note that the First Amendment’s “Establishment Clause” would allow, for example, a state scholarship program to support religious degrees. The public, not lawyers and judges, should decide whether its tax money should support things of that nature, or, for example, tax exemptions for religious schools and other nonprofits.

The increasingly conservative Supreme Court struck its first blow in today’s school culture war five years ago, with the Trinity Lutheran Church of Columbia, Inc. v. Comer decision on “a program to use recycled tires to resurface playgrounds.” Liberal justices Elena Kagan and Stephen Breyer joined the 7-2 decision that Missouri could not exclude a religious preschool from that program, which the court downplayed as simply preventing “in all likelihood, a few extra scraped knees.” In dissent, however, justices Sonia Sotomayor and the late Ruth Bader Ginsburg argued that the case “is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state.” Social movements largely missed this court decision, which was not a cultural flashpoint, and they are now playing catch-up as the court openly enters the educational culture war.

The conservative justices, with some liberal support, are redrawing the battlefield lines to encroach on the separation of church and state, movements for LGBTQ and other rights, anti-racist education and religious groups with less power to “compete for public dollars.” To justify another decision supporting Christian schools last year, the Supreme Court cited its early 20th-century precedent that allowed Native Americans’ treaty funds to be siphoned off for Catholic mission schools. These justices are concerned not with religious freedom across the board, but power for the religious right, which they make out to be the real victim in the culture war.

However, strong social movements can redraw these battlefield lines as well. In 2020, it was conservative justice Neil Gorsuch, of all people, who wrote the Bostock v. Clayton County decision that extended federal civil rights in the workplace to gay and trans people. Gorsuch, a so-called textualist who pretends to see only the words on the paper, justified this expansion of civil rights in part by noting that, “in our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964.” And in dissent, even conservative justice Brett Kavanaugh had to “acknowledge the important victory achieved today” by the LGBTQ movement.

Now, the Supreme Court is asking whether government money should support education about racism on the one hand, and schools that discriminate against LGBTQ students and teachers or promote patriarchy on the other. The justices are inviting politics into the courtroom, and our social movements need to answer. We have to win the public over, and then use that public support to win in court.