I’m grateful to the Jewish Review of Books for publishing an exchange between leading constitutional scholars Michael A. Helfand and Noah Feldman (Spring 2022) over the implications of the landmark Carson v. Makin case. In the end, the Supreme Court handed down a decision that, as Helfand had hoped, upholds religious liberty and rejects religious discrimination. I was disappointed, however, to see the usually careful Feldman make a series of material errors, mischaracterizing not only the question before the court but also the facts of the case and the historical record. Feldman writes that the real issue before the court was:

Should the United States keep the separation of church and state that has endured in the country since its founding? Or should we abandon that tradition in favor of a system in which the state funds parochial religious education, as is normal in countries with established state religions?

Feldman incorrectly assumes that the public funding of religious schools is something new and unprecedented. “States like Maine,” he writes, “have never funded sectarian education.” In fact, the very town tuitioning program that was at issue in the Carson case funded parochial education for more than a century, from its inception in 1873 until Maine lawmakers amended it to exclude religious schools in 1983. A similar program in Vermont funded parochial schools from 1869 until 1961. Likewise, in the late eighteenth century, New York publicly subsidized a wide variety of sectarian schools via the sale of public lands, and later through city and state aid to the Free School Society.

Moreover, whether or not school choice policies may fund religious education has been a settled question since Zelman v. Simmons-Harris two decades ago. At issue in Carson was the question of whether a state may exclude otherwise eligible religious schools from participating in school choice programs if the schools engage in religious activity. The Supreme Court recently held in Espinoza v. Montana Department of Revenue that a state “need not subsidize private education,” but once it does so, “it cannot disqualify some private schools solely because they are religious.” Espinoza made clear that a school could not be excluded on the basis of its religious status but sidestepped the question of whether it could be excluded on the basis of its religious activities. In Carson, the court ruled that it could not.

Feldman concludes by speculating that a nation in which more students attend religious schools would be bad for the Jews, as it “seems unlikely to promote national unity in a time of intense polarization.” However, the research literature finds that school choice policies lead to higher levels of political tolerance. One study even found that private schooling is associated with lower levels of anti-semitism—particularly among graduates of Christian schools. What’s good for the Jews—and all Americans—is an education system that respects and reflects America’s core values of religious liberty and pluralism.