The Republican strategy to end public schools as we know them continues apace, today with a coalition of Republican attorneys general, including Leslie Rutledge, telling the U.S. Supreme Court it should allow public dollars to support religious schools without exception.

Rutledge’s release:


Arkansas Attorney General Leslie Rutledge has led a 21-state coalition urging the United States Supreme Court to protect religious liberty in school-choice programs. The brief argues that the U.S. Constitution forbids state school-choice programs from discriminating against religious schools.

“We cannot allow states to discriminate against religious schools,” said Attorney General Rutledge. “The Constitution requires respect for religious liberty and parents must be empowered to make the best educational decisions for their children, whether it be a public or private school, secular or religious, and their choice should not be limited by their family’s financial capabilities, zip code or faith.”

In this case, the U.S. Court of Appeals for the First Circuit affirmed a federal district court’s decision rejecting the plaintiffs’ claims and allowing discrimination against religious schools to continue. In March, Rutledge successfully led an 18-state brief urging the U.S. Supreme Court to grant review of the lower court’s decision.

Arkansas has a record of success partnering with private schools, which includes religious schools, to increase access to educational options. For example, the Succeed Scholarship Program, enacted in 2015, provides private-school scholarships to students with disabilities, students in foster care, and other students. Religious schools are important participants in the Succeed Scholarship Program. In 2021, Arkansas enacted a new tax-credit scholarship program that does not discriminate against religious schools. This program provides private-school tuition funds for children from families with incomes equal to or less than 200% of the federal poverty level.

The Arkansas-led brief was joined by Alabama, Arizona, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah and West Virginia.

Make no mistake, this is an outsized camel sticking its nose in the tent of public schools. The Arkansas Succeed Scholarship is a thinly disguised voucher program supposedly designed to provide some alternatives for students with special educational needs, though the state makes little effort to certify the needs or whether they’ll be met at the schools they choose to attend (most of them backed by churches in Arkansas.) The 2021 legislature expanded the voucher program to all, with only an income limit and limit on the amount available.

Other states have thrown open the door to unlimited use of vouchers in religious schools (with some particularly bad results in Louisiana, to name one.) That is the future in Arkansas. The argument is that any parent is entitled to take “their” state tax money and take it wherever they want, even in support of homeschooling. Taken to its extreme, it will cripple the system of conventional egalitarian public schools. Which is the point.


The Supreme Court has said Montana could not deny tax money for religious schools if it provided tax money for other non-sectarian private schools. The new case is from Maine, where, the New York Times explained:

Maine requires rural communities without public secondary schools to arrange for their young residents’ educations in one of two ways. They can sign contracts with schools elsewhere, or they can pay tuition at public or private schools chosen by parents so long as they are, in the words of state law, “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

The 1st Circuit Court of Appeals said it wasn’t status that disqualified a school (connection with a church) but a religious-based curriculum.


The families bringing this case want to resolve the question left in the Montana case when Chief Justice John Robert said there might be a difference between an institution’s religious identity and its conduct.

In urging the Supreme Court to hear the case from Maine, two families that send or want to send their children to religious schools, represented by the Institute for Justice, a libertarian group, asked the justices to resolve the open question and do away with the distinction.

If and when that fine point is gone, the pressure will increase to ship still more state tax money to religious schools unfettered, with no concern for what might be taught there.

The Arkansas Constitution has a reference to religion that could come into play on the question of whether religious status frees schools that receive state money from rules that apply to other schools. (Discriminates against public schools, in other words.) The Constitution says:

No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.

I’m grasping at straws. Money talks and that’s what’s driving this attack on public schools.