The Right-Wing Right to Education: State-Funded Religious Schooling After Carson v. Makin

In 1973, in San Antonio Independent School District v. Rodriguez, the United States Supreme Court held that education is not a fundamental right under the Constitution. In 2022, the Supreme Court ruled in Carson v. Makin that states cannot restrict generally available tuition assistance programs to nonsectarian schools without running afoul of the Free Exercise Clause. This Note argues that Carson has created a new constituency for the fundamental right to education: religious conservatives. Religious conservatives are now more likely to support the right to education because if found, Carson’s expansion of the Exercise Clause would require states to provide tuition grants to parents who wish to send their children to religious private schools. In addition, religious conservatives are now more likely to support the right to education because Carson changed how the right to education would be defined by the Court. This Note discusses whether compulsory religious education funding is merely a possibility because of Carson, or whether Carson requires that the Court rule in such manner. Lastly, this Note argues that despite the harm that a right to education could do to secular, public education in light of Carson, liberals should still fight for the right to education because it is a foundational goal of liberalism and should not be sacrificed to prevent the religionization of education.