The Supreme Court is set to make crucial decisions in the school’s ‘culture war’

The cultural battle over how our children are raised is intensifying. In its final days, the narrow and highly partisan Virginia Governor’s Race obsessed with some parents’ opposition to racism education. We saw physical violence at school board meetings on everything from masks to school mascots. One of the biggest conflicts is at the highest level: the Supreme Court.

In oral argument in December, the judges posed some stark policy questions: Should the government 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 about a school that teaches critical race theory?”

These are the issues of Carson v. Makin case before the Supreme Court. Technically, the case is narrow in scope: a state tuition assistance program that excludes “cultist” religious schools. Backed by conservative legal organizations, parents who want government money to send their children to Christian schools are challenging the exclusion. While the case centers on religion, the justices acknowledged the far greater ramifications of their decision — for LGBTQ rights, gender discrimination and the real discourse of racism — during oral argument in the case. last month. Public opinion figured prominently in the court’s debate over these ramifications, as judges and lawyers used words like “division” and “conflict” dozens of times.

The oral argument also revealed that, unsurprisingly, the staunchly conservative Supreme Court is skeptical of the exclusion of sectarian schools. While many liberal commentators have sounded the alarm on this continuing drift to the right, they often miss an important fact: the magistrates, by placing themselves at the forefront of the national political struggle for education, admit that judicial institutions are vulnerable to popular pressures and social movements. The power of movements and public opinion has paved the way for issues often lumped together under the category of “culture war” — from masks and vaccines to anti-racism education to LGBTQ rights and gender equality. gender – both in and out of court.

This political vulnerability is a powerful opportunity: In conquer the public to our moves, we have a better chance of winning in court.

What does this mean for our claims in the educational culture war currently being played out in the High Court? We cannot fall back on the elitist approach of decrying parents’ demands for greater involvement in their children’s education. It helped lose the governorship of Virginia – “I don’t think parents should tell schools what to teach” was, is and always will be a lost message. We should support community control of all essential institutions, including education. conservative parents, supported by the rich and powerful, behave scandalously at school board meetings. But we must respond with the power of people that is unique to us.

And we certainly shouldn’t rest our argument, as some commentators have, on legal explanations. “the text of the first amendment”, which prohibits the “establishment of religion” by the government, to our adversaries. The “textualist” approach to law, invented by right-wing judges and, unfortunately, often given to by their Liberal colleagues, claims that the law only exists as it is explicitly written. If we accept this, then we have to say goodbye our rights to privacy, abortion, marriage, gender equality, or anything else that is not explicitly enshrined in the Constitution. And when the law is ambiguous, what does “speech” mean in the First Amendment? – judges use textualism as a cover to enforce their policy and call it law “ordinary meaning”. Our social movements should bring these policies out into the open, for the public to debate and decide.

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

Finding the balance between religious freedom and the separation of church and state is a matter of democracy. Even the Liberal judges recognize that there are “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 their tax money should fund things of this nature or, for example, tax exemptions for religious schools and other non-profit organizations.

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 in the 7-2 ruling that Missouri could not exclude a religious preschool from this program, which the court downplayed as simply preventing “in all likelihood a few more scraped knees.” “. Dissenting, however, Justices Sonia Sotomayor and the late Ruth Bader Ginsburg argued that the case “concerns nothing less than the relationship between religious institutions and civil government – that is, between the Church and the state”. Social movements largely missed this court ruling, which was not a cultural flashpoint, and they are now catching up as the court openly enters the educational culture war.

Conservative justices, with some liberal backing, are redrawing battlefield lines to encroach on separation of church and state, movements for LGBTQ and other rights, anti-racism education and groups religious with less power to “Compete for the public purse.” To justify another decision backing Christian schools last year, the Supreme Court cited its early 20th century precedent that allowed Native American treaty funds will be misappropriated for Catholic mission schools. These judges are not concerned with religious freedom at all levels, but power for the religious rightthey pass off as the true victim of the culture war.

However, strong social movements can also redraw these battlefield lines. In 2020, it was conservative Justice Neil Gorsuch of All People who wrote the Bostock v. County of Clayton decision that extended federal civil rights in the workplace to gay and trans people. Gorsuch, a so-called textualist who claims to see only the words on paper, partly justified this extension of civil rights noting that, “In our time, few federal statutes have a significance comparable to the Civil Rights Act of 1964.” And in dissent, even conservative judge Brett Kavanaugh had to “recognize 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. Judges invite politics into the courtroom, and our social movements must respond. We have to convince the public and then use that public support to win in court.

Carol C. Reed