SSRN 4776907

DRAFT – DO NOT CITE OR CIRCULATE WITHOUT PERMISSION
(forthcoming, American Journal of Law and Equality)
RACE, RELIGION, AND THE ANTIPARALLEL
Caitlin Millat*
INTRODUCTION
On June 29, 2023, the Supreme Court issued a monumental decision in

Students for Fair Admissions v. Harvard,1 which saw a 6-3 conservative
majority effectively strike down affirmative action in university admissions.
It did so nearly twenty years to the day after deciding Grutter v. Bollinger,2
under which the Court originally authorized the use of race-conscious
decisionmaking to foster critical diversity interests in higher education.
But importantly, SFFA did more than simply outlaw the explicit
consideration of race in college admissions. Rather, it upended entirely the
doctrine and narrative set forth by Grutter and its progeny, offering a
diametrically opposite view on the role of race – and racial discrimination –
in modern America. On SFFA’s telling, such an explicit consideration of race
in schooling, even one meant to benefit racial minorities, was itself
discrimination, an impermissible violation of the Equal Protection Clause’s
mandate of total “colorblindness.” In this way, the Court told a story of a
post-racial America, one in which racial classification may be more
pernicious than racial remedy.
Critically, though, this doctrinal and narrative sea change in the Court’s view
of race, racism, and discrimination in schooling has not been the only such
shift in the Court’s recent education jurisprudence. Across the same period,
roughly twenty years, the Court also has transformed its approach to
evaluating the role of religion in schooling, from religious exercise in
educational institutions to state funding of religious activity. Indeed, for the
better part of the 20th century, the Court consistently deployed the First
Amendment’s Religion Clauses – the Establishment Clause and the Free
Exercise Clause – to enforce a Jeffersonian “wall of separation” between
church and state. Over this time, the Court would strike official policies
mandating prayer in schools; decline repeatedly to sponsor religious activity
with public funding; forbid state officials from publicly conducting religious
* Associate Professor of Law, Arizona State University Sandra Day O’Connor College of Law.
1
600 U.S. __ (2023).
2
539 U.S. 306 (2003).
Electronic copy available at: https://ssrn.com/abstract=4776907

exercise in an education setting; and adhere to an ideal that because students

were susceptible to implicit coercion, state religious endorsement must be
viewed skeptically.3
With the advent of the Roberts Court, however, and the beginning of the 21st
century, this view changed, as the newly-constituted conservative-majority
Court dismantled its Religion Clause jurisprudence in the religious-schools
context and turned away from its once-firmly held belief in the “wall of
separation.” Indeed, over this time, the Court has issued a series of decisions
that, bit by bit, permitted religion to creep into the public educational space.
Over this time, for example, it upheld voucher programs permitting public
funds to flow to religious schools; required aid programs to include religious
schools in their mandates; and, as of just one Term before SFFA, required
districts to allow state officials to engage in public prayer without any inquiry
into the activity’s coercive potential.4
But these race and religion shifts in the Court’s education jurisprudence have
not occurred in isolation: rather, they have always, and perhaps necessarily,
been in conversation with one another. As this paper argues, one cannot
properly consider the impact of cases like Students for Fair Admissions, and
the post-racial change it portends, without taking account of the Court’s
increasing allegiance to and protection of religious – primarily Christian
evangelical – interests. Instead, examining these movements together reveals
that while these changes have taken place in chronological parallel –
significant shifts over the past quarter-century – they have moved in opposite,
or antiparallel, directions. Put differently: on one hand, the Court has used
its religious-schools shift to carve out increasing protections for religious
exercise, crafting a deliberate narrative that the true minority in American life
is the religious observer. On the other, the Court has used its race-
consciousness jurisprudence to shrink protections for racial minorities,
crafting a counter-narrative that attempts to erase “race” entirely.
This reflection makes this argument in several parts. Part I surfaces the
monumental shifts taken in the Court’s race- and religion-based education
jurisprudence over the past quarter-century, locating these shifts against the
Court’s prior record in its schools cases. As it explains, in both the race and
religion tracks, the Court has not only upended doctrine but also upended its
narratives about who is deserving of judicial protection – and what form that
3
See infra Part II.
4
See infra Part II.

protection should take. Part II argues that, taking these cases together, the
Court’s changing views on judicial neutrality, color- and religion-blindness,
discrimination, and who counts as a “minority” are made clear. In this way,
the Court has wholly embraced the view that the true persecuted minorities
subject to judicially-recognizable protection are Christian evangelical
observers rather than racial minorities. Part III briefly concludes.
I. RACE AND RELIGION: ANTIPARALLEL TRACKS IN THE COURT’S EDUCATION

JURISPRUDENCE
Since the year 2000,5 the Court has decided6 approximately 50 “education
law” cases.7 Seven concern the application of the Individuals with Disabilities
Education Act, the Americans with Disabilities Act, or both8; three involve
student free speech under the First Amendment9; two each pertain to
FERPA,10 antitrust actions of the National Collegiate Athletic Association,11
COVID-19 loan relief12; the application of the Fourth Amendment in
5
To be clear, the year “2000” is an estimate not meant to act as a hard-and-fast
demarcation. Rather, I use interchangeably the idea of “since 2000,” “the past quarter-
century,” and “over twenty years” to describe the rough time period over which these
changes have taken place.
6
The use of “decided” here indicates that the Court has issued a substantive opinion.
This paper does not address, for purposes of this reflection, decisions such as denials of
certiorari.
7
“Education law,” here, means cases of the Court that have required the Court to grapple
with doctrine as specifically applied in the context of schools. There are no doubt a handful
of cases not addressed here in which, for example, schools may be the setting for a case, but
their status as schools do not play an important role in the adjudication of the case. The same
is true for the many cases involving the Religion Clauses and race-conscious decisionmaking
that occur outside of the schools context: I may refer throughout to these as references, but
do not squarely address their doctrinal import here.
8
Schaffer v. Weast, 546 U.S. 549 (2005); Arlington Cent. Sch. Dist. v. Murphy, 548
U.S. 291 (2006); Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007); Forest Grove
Sch. Dist. v. T.A., 557 U.S. 230 (2009); Fry v. Napoleon Cmty. Schs., 580 U.S. 154 (2017);
Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. __ (2017); and Luna Perez v. Sturgis Public
Schs., 598 U.S. 142 (2023).
9
Morse v. Frederick, 551 U.S. 393 (2007); Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004); Mahanoy v. B.L., 594 U.S. __ (2021).
10
Owasso Ind. Sch. Dist. v. Falvo, 534 U.S. 426 (2002); Gonzaga Univ. v. Doe, 536
U.S. 273 (2002).
11
NCAA v. Alston, 594 U.S. __ (2021); Murphy v. NCAA, 584 U.S. __ (2018).
12
Biden v. Nebraska, 600 U.S. __ (2023); Dep’t of Educ. v. Brown, 600 U.S. __ (2023).

schools,13 and recruitment of student-athletes14; and a hodgepodge of other,

more idiosyncratic cases include challenges to Title IV15 and IX16; federal
funding for military institutions17; jurisdictional debates18; and the
constitutionality of a state education aid statute.19 But two primary themes
have been central to the Court’s education jurisprudence over the past quarter
century: that of race-conscious decisionmaking and religious exercise in
schools. Indeed, over this time, the Court has settled 12 religious exercise
cases20 and seven affirmative action disputes.21 In doing so, as this Part
explains, the Court has constructed two doctrinal tracks, each of which has
built on – and upended – precedents from the last millennium.
But these “race” and “religion” tracks have not moved in parallel. Precisely
the opposite. As the Court in its education jurisprudence has expanded its
deference to, protection of, and space allocated to religious observance,
particularly Christian observance, it has correspondingly shrunk its deference
to, protection of, and space allocated to racial minorities, particularly Black
and brown students, children, and teachers. These antiparallel22 doctrinal
13
See Bd. of Educ. v. Earls, 536 U.S. 822 (2002); Safford Unified Sch. Dist. v. Redding,
557 U.S. __ (2009).
14
See Tennessee Secondary Sch. Athletic Ass’n v. Brentwood, 551 U.S. 291 (2007);
Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001).
15
See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009).
16
See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).
17
See Rumsfeld v. Forum for Academic Rts., 547 U.S. 47 (2006).
18
See Hibbs v. Winn, 542 U.S. 88 (2004).
19
See Zuni Pub. Sch. Dist. v. Dep’t of Educ., 550 U.S. 81 (2007).
20
See Santa Fe. Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Mitchell v. Helms, 530 U.S.
793 (2000); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001); Zelman v.
Simmons-Harris, 536 U.S. 639 (2002); Locke v. Davey, 540 U.S. 712 (2004); Christian
Legal Soc. v. Martinez, 561 U.S. 661 (2010); Arizona Christian Sch. v. Winn, 563 U.S. 125
(2011); Trinity Lutheran School v. Comer, 582 U.S. __ (2017); Espinoza v. Mont. Dep’t of
Revenue, 591 U.S. __ (2020); Our Lady of Guadalupe v. Morrissey-Berru, 591 U.S. __
(2020); Carson v. Makin, 596 U.S. __ (2022); and Kennedy v. Bremerton, 597 U.S. __
(2022).
21
See Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003);
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Fisher v.
Univ. of Texas at Austin, 570 U.S. 297 (2013) (“Fisher I”); Schuette v. Coalition to Defend
Affirmative Action, 572 U.S. 291 (2014); Fisher v. Univ. of Texas at Austin, 579 U.S. __
(2016) (“Fisher II”); Students for Fair Admissions v. Harvard, 600 U.S. __ (2023).
22
“Antiparallel” means “parallel but oppositely directed or oriented.” Merriam-Webster
(2024).

paths, as described below, have in recent years led the Court to their (perhaps)
logical conclusions: on one end, the commingling of religion, the state, and
the public fisc,23 and on the other, the erasure of race-conscious remedies at
all levels of schooling in favor of colorblind postracialism.24
A. Religion
Since the mid-20th century, the Court has stepped in to resolve a host of
religious-schools cases under the First Amendment’s Free Exercise and
Establishment Clauses. Indeed, as Derek Black has written, the Court has
“chosen education as a primary stomping ground for rewriting Free Exercise
Clause doctrine.” 25 Scholars on both sides of the aisle, however, have decried
inconsistencies in the Supreme Court’s interpretation of the Religious
Clauses, particularly with respect to their application to schools.26 Even the
Court itself has noticed its “consistent[] struggle[s] to apply these simple
words [of the Establishment Clause] in the context of governmental aid to
religious schools.”27
But the Court’s religious-schools jurisprudence has not always been so

incoherent. Rather, for the better part of 50 years, beginning in the mid-20th
century, the Court held firm to a series of interpretive principles and
doctrinal frames designed, as the Court wrote, to ensure that there would
remain a “wall of separation between Church and State.”28
1. The First Fifty Years: The Religion Clauses in the Court
In 1947’s Everson v. Board of Education, the Court would decide its first
23
See infra section A.
24
See infra section A.
25
Derek Black, When Religion and the Public-Education Mission Collide, 132 Yale
L.J.F. 559, 559 (2022).
26
See, e.g., Mark Strasser, On Espinoza, Schools, and the Religious Clauses, 14 Drexel
L. Rev. 543, 544-56 (2022) (noting the “twists and turns” in Establishment Clause
jurisprudence);
27
Mitchell v. Helms, 530 U.S. 793, 807 (2000) (noting further that “candor compels the
acknowledgment that we can only dimly perceive the boundaries of permissible government
activity in this sensitive area”).
28
Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15-16 (1947) (citing Reynolds v. United
states, 98 U.S. 145 (1878)).

case incorporating the Establishment Clause to the states,29 making clear in

doing so its fidelity to this “impregnable” wall.30 While the Everson Court
upheld a bussing program that would transport both public- and parochial-
school students, it did so with clear limitations, noting, for example, that the
state “contribute[d] no money to [parochial] schools” and “did not support
them.” Everson, then, would come to stand for the principle that taxation
could not be used “to support” religion, but that the government must
provide some public services to religious institutions: “police and fire
protection, connections for sewage disposal, public highways and
sidewalks,” for example, were neutral offerings that religious organizations
could benefit from.31 More importantly, the case set forth a set of balancing
principles that would become central not only to Establishment but also Free
Exercise principles:
Neither a state nor the Federal Government can set up

a church. Neither can pass laws which aid one religion,
aid all religions, or prefer one religion over another.
Neither can force nor influence a person to go to or
remain away from church against his will or force him
to profess a belief or disbelief in any religion. . . No
tax in any amount, large or small, can be levied to
support any religious activities or institutions,
whatever they may be called, or whatever form they
may adopt to teach or practice religion. . .32
Everson would set the stage for decades of First Amendment questions
pertaining to if – and how much, and in what form – the state and religious
schooling may intertwine. Fifteen years after Everson, in Engel v. Vitale,33
the Court would double down on its dedication to this “wall of separation.”
There, the Court found unconstitutional a New York school district’s policy
requiring a purportedly nondenominational (though monotheistic) prayer to
29
As Carl H. Esbeck has observed, only one case pre-Everson even made mention of the
Establishment Clause. Carl H. Esbeck, The 60th Anniversary of the Everson Decision and
America’s Church-State Proposition, 23 J. L. & Religion 15, 20 n.17 (2015).
30
Id. at 18.
31
Everson, 330 U.S.
32
Id. at 15-16.
33
370 U.S. 421 (1962).

be said aloud by the class at the beginning of each school day. 34 The Court
opined on the historic recognition of the “dangers of a union of Church and
State,”35 paying particular heed to the ways in which state- and school-
sponsored religious activity – at all – subjected students to “indirective
coercive pressure . . . to conform to the prevailingly officially approved
religion.”36 More, the Court flatly rejected the district’s argument that
striking such laws would indicate “hostility toward religion or prayer”: as
the Court wrote, “[i]t is neither sacrilegious nor antireligious to say that each
separate government in this country should stay out of the business of
writing or sanctioning official prayers.”37
The decade that followed would see the Court continue to emphasize the
critical importance of both a rigid separation between church and state and
the balance struck by the interplay between the Establishment and Free
Exercise clauses. Just one year after Engel, the Court considered the
constitutionality of a mandatory reading of Bible verses by students at the
beginning of the school day.38 The Court first extended its observation from
Everson that it would be practically impossible to “take every form of
propagation out of the realm of things which would directly or indirectly be
made public business.”39 But it emphasized the critical, “firm[]” holdings of
both Everson and Engel – that the First Amendment’s primary objective,
repeatedly “reaffirmed” by the Court, was to “create a complete and
permanent separation of the spheres of religious activity and civil authority
by comprehensively forbidding every form of public aid or or support for
religion.”40 And doctrinally, the Court, as it had in Engel, continued to
recognize the key “interrelationship” of the Establishment and Free Exercise
clauses. Finally, the Schempp court firmly established a test for future
Establishment Clause and Free Exercise cases. First, under the
Establishment Clause, the enactment at issue must be examined, and may
have only a “secular legislative purpose and a primary effect that neither
34
Id. at 422. The prayer read, in full: “Almighty God, we acknowledge our dependence
upon The, and we beg Thy blessings upon us, our parents, our teachers and our Country.”
35
Id. at 429.
36
Id. at 430-31.
37
Id. at 435.
38
Abington Twp. v. Schempp, 374 U.S. 203 (1963).
39
Id. at 217 (citing Everson, 330 U.S. 1, 15 (1947) (Jackson, J., dissenting)).
40
Id. at 217 (citing Everson, 330 U.S. at 15 (Rutledge, J., dissenting)).

advances nor inhibits religion” – “direct coercion” need not be proved given
the “indirect pressure” upon religious minorities to conform.41 Free Exercise
challenges, however, required proof of coercion: the claimant must
“demonstrate the coercive effect of the enactment as it operates against him
in the practice of his religion.”42 Applying these principles, the Court found
the policy unconstitutional. And, as it had in Engel, the Court again rejected
the argument that absenting the state from religion would create a “religion
of secularism”: the concept of neutrality, the Court observed, could not
require a state to require religious exercise.43
The Court would apply these principles – the commitment to governmental

neutrality, the delicate balance between the Religion Clauses, and the
premise of “indirect coercion” from state actors – for the next thirty years to
a host of Establishment and Free Exercise questions in the schools,
particularly those concerning school prayer and secular curricular choices.
Indeed, the Supreme Court and other federal appellate courts would across
the 1950s and 1960s issue more than 50 opinions that generally deployed
the Establishment Clause to insulate religious minorities and the public from
“overwhelming Christian majorities.”44 In 1968, for example, the Court
struck as unconstitutional an Arkansas law forbidding the teaching of
evolution in public schools.45 As the Court there observed, government “in
our democracy, state and national, must be neutral in matters of religious
theory, doctrine, and practice,”46 and echoed the “absolute prohibition” on
states to not “aid one religion, aid all religions, or prefer one religion over
another.”47 That same year, the Court upheld, under the logic of Everson and
Schempp, a New York statute requiring school districts to loan textbooks to
students in all types of schools, including parochial schools.48 Like Everson’s
bus fares, the Court held that the textbook law had a “secular legislative
purpose,” satisfying the Establishment Clause, and found no Free Exercise
41
Id. at 221.
42
Id. at 222-23.
43
Id. at 225.
44
David Schultz, The Roberts Court Takes Aim at the Establishment Clause, The Hill
(May 31, 2023), https://thehill.com/opinion/judiciary/4026628-the-roberts-court-takes-aim-
at-the-establishment-clause/.
45
Epperson v. Arkansas, 393 U.S. 97 (1968).
46
Id. at 103-04.
47
Id. at 106 (citing Everson, 330 U.S. 1, 15 (1947)).
48
Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236 (1968).

problem absent evidence of coercion.49
Challenges to aid schemes like those in Everson also began to percolate in

the Court beginning in the 1970s. The Court in 1971 decided Lemon v.
Kurtzman, which concerned both a Rhode Island statute that provided salary
benefits to only “eligible” teachers, meaning they could not teach courses in
religion, and a Pennsylvania statute that reimbursed parochial schools for
teacher salaries and materials.50 The Lemon Court again cautioned against
the ”dangers” of intertwining church and state, noting that the three “main
evils” the Establishment Clause protected against were “sponsorship,
financial support, and active involvement of the sovereign in religious
activity.”51
Synthesizing the Court’s prior precedents, the Lemon Court articulated a

three-prong test for Establishment Clause claims: first, the statute must have
a “secular legislative purpose”; second, its “principal or primary effect must
be one that neither advances nor inhibits religion”; and third, that the statute
must not foster “an excessive government entanglement with religion.”52
Applying this test, the Court found that it could not “ignore the danger that
a teacher under religious control and discipline poses to the separation of the
religious from the purely secular aspects of . . . education,” and that these
dangers were present in the Rhode Island and Pennsylvania programs.53 And
again, the Court committed to what had been a repeatedly echoed principle:
that “under our system the choice has been made that government is to be
entirely excluded from the area of religious instruction.”54
Just two years later, the Court applied the Lemon test in considering whether
New York state financial aid programs that provided direct money grants to
private and parochial schools violated the Establishment Clause.55 The Court
struck the program, finding that because the program required direct state
49
Id. at 241-43, 248-49.
50
403 U.S. 602 (1971).
51
Id. at 612 (citing Walz v. Tax Commission, 397 U.S. 664, 668 (1970)).
52
Id. at 612-13.
53
Id. at 614-22.
54
Id. at 625.
55
Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756
(1973).

10
funding of parochial schools, it violated Lemon’s first prong.56 The Court

similarly rejected arguments that because the grants were incentives to
parents, this broke the chain between church and state, noting that the effect
of the aid was “unmistakably to provide desired financial support for
nonpublic, sectarian institutions.”57 Over the next two decades, this trend
continued. The Court would on similar grounds strike as unconstitutional a
Pennsylvania policy under which equipment that could be “diverted for
religious purposes” was loaned to parochial schools58; a Michigan “shared
time” program that provided classes to private and parochial school students
at public expense59; a New York program that deployed federal funds to pay
the salaries of public employees teaching in parochial schools, such as
guidance counselors, psychologists, and social workers.60 And in each case,
the Court doubled down on its commitments to the avoidance of state
indoctrination, the interplay struck between the Religion Clauses, and the
implicit and explicit coercion exerted by authority figures in schools.61
But Lemon, of course, was applied beyond the school aid context. Under a
Lemon analysis, the Court would over the next two decades strike as
unconstitutional an Alabama school prayer and mediation statute as having
56
Id. at 780-83.
57
Id.
58
Meek v. Pittenger, 421 U.S. 349 (1975).
59
Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985).
60
Aguilar v. Felton, 473 U.S. 402 (1985). Over this time, and consistent with its prior
jurisprudence, the Court also upheld Everson-style programs such as the provision of
interpreters and remedial instruction to students with disabilities in private and religious
schools, as well as tax deducations for transportation to all schools, public and parochial
alike. See, e.g., Mueller v. Allen, 463 U.S. 388 (1983); Zobrest v. Catalina Foothills Sch.
Dist., 509 U.S. 1 (1993); Agostini v. Felton, 521 U.S. 203 (1997) (modifying Lemon to
collapse the entanglement prong into the other factors as simply a factor to evaluate in
determining the effect of a statute) (overruling in part Aguilar, 473 U.S. 402).
61
See, e.g., Ball, 473 U.S. at 385 (noting the “devastating effects” and “great . . . risk”
of “indoctrination” that can be present in schools with religious pressure); id. at 395
(rejecting the argument that even if it flows through parents, “all aid to religious schools
ultimately ‘flows to’ the students”); Aguilar, 473 U.S. at 412-13 (noting Lemon entanglement
because aid would be provided in a “pervasively sectarian environment”); Meek, 421 U.S. at
359 (reaffirming that “no tax in any amount . . . can be levied to support any religious
activities or institutions”); id. at 370 (the “prophylactic contacts required to ensure that
teachers play a strictly nonideological role . . . necessarily give rise to a constitutionally
intolerable degree of [e]ntanglement between church and state”).

11
no legitimate secular purpose62; a Louisiana statute forbidding the teaching

of evolution unless accompanied by the teaching of “creation science”63; a
Rhode Island policy under which principals could, and did, invite clergy to
offer prayers at official school events such as graduation ceremonies64; and
a New Mexico school’s policy under which student-initiated prayer was
offered over a loudspeaker system.65 Similarly, in these cases, the Court
echoed the themes it had firmly centered in its Religion Clause
jurisprudence.66
In the 20th century, then, the Court’s jurisprudence centered on several

consistently-held principles. First, as discussed above, the Court
demonstrated fealty to the Jeffersonian principle of the “wall of separation”
between church and state. The Court also held firm to its belief in the “play
in the joints” between the Establishment and Free Exercise Clauses, and the
compromise struck by the two: working in tandem, neither endorsing nor
prohibiting religious exercise. Relatedly, the Court also demonstrated
allegiance to Lemon-era balancing principles of neutrality and the notion of
both implicit and explicit coercion, particularly in the schools context.
Finally, and perhaps most importantly for developments to come, the
Court’s narrative in these cases was not one of secularism-as-discrimination
– rather, its focus was to protect, under openly secular principles, students
from religious indoctrination.
2. The New Millennium: Reshaping Religious Schools Doctrine
But none of these rhetorical and doctrinal principles – a commitment to a

“wall of separation” between church and state, a focus on the interplay
between the Free Exercise and Establishment Clauses, concern about
implicit and explicit coercion, particularly in schools, and an application of
Lemon and its progeny – have survived to today. Instead, the Court, over
roughly the past two decades, has eroded its religious-schools
62
Wallace v. Jaffree, 472 U.S. 38 (1985) (observing that legislative intent showed that
the statute was aimed at “return[ing] prayer to the public schools”).
63
Edwards v. Aguillard, 482 U.S. 578 (1987).
64
Lee v. Weisman, 505 U.S. 577 (1992).
65
Lee v. Weisman, 505 U.S. 577 (1992).
66
Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

12
jurisprudence67 and replaced it with an emergent framework dedicated to an

entirely different set of guiding principles. Gone is Lemon and its guidance,
replaced by an oblique inquiry into “history and tradition”68; absent entirely,
if not refuted outright, is support for the Jeffersonian wall between church
and state. And, perhaps most consequential, the Roberts Court has
abandoned the “play in the joints” between the Religion Clauses, supplanted
entirely by Free Exercise supremacy.
Practically, this has already had several significant impacts. First, the line of
religious-schools cases has dramatically increased public funding of
religious activity. Second, this line of cases has turned entirely away from
doctrine of the pre-2000 era, reshaping if not overruling entirely long-held
precedent. And third, this revamp, or inversion, has caused a doctrinal and
narrative about-face in the Court’s prevailing expression about the function
of the Religion Clauses. Where, perhaps, they once operated in tandem as
protections against indoctrination, coercion, and religious pressure, they are
now to be deployed, through Free Exercise supremacy, as bulwarks against
“religious discrimination,” repositioning religious observers – particularly,
Christian observers – as their own minority.
Political context for this transition may be helpful. The turn of the
millennium coincided with a general polarization of the political process not
simply in the judiciary, but in all branches of government. In 1970, for
example, moderates constituted nearly half of the Senate, but today
constitute less than 5 percent – indicating that the center “has all but
disappeared.”69 Similarly, the influence and weight of interest groups in
support of judicial nominees to the Court has ballooned: nominees had an
67
Others have similarly observed the ways in which the Court’s emphasis on
colorblindness in the affirmative action cases are at odds with their approach to religious
exemptions to anti-discrimination laws under the First Amendment. See, e.g., Kent
Greenfield, Using the First Amendment to Save Race-Conscious College Admissions, 4 Am.
J. of L. & Equality __ (forthcoming 2024).
68
Caroline Mala Corbin has explained this turn toward “history and tradition” has
“reaffirmed Christianity’s hegemony in the United States,” as the Roberts Court has
protected Christianity while declining to intervene to protect other religious faiths. See See
Carolina Mala Corbin, Religious Liberty for All? A Religious Right to Abortion, 2023 Wisc.
L. Rev. 475, 476 (2023).
69
Geoffrey Richard Stone, The Supreme Court in the 21st Century, Daedalus (Spring
2013), https://www.amacad.org/publication/supreme-court-21st-century.

13
average of 1.6 groups in support between 1952-67; 8.8 between 1968-83;

27.6 between 1984-94; and over 100 per nominee since 2000.70 More, the
confirmation process, post Bush v. Gore, has become what some have called
a “high stakes reality show,” as SCOTUS has been amplified as an
ideological body.71 Further to this point, between 1964 and 2000, only 27
percent of 18 nominees to the Court received 20 or more negative votes in
the Senate; since 2000, 100% have received more than 20 negative votes.
The religious makeup of the Court has also changed with the advent of the
Roberts Court, ushering in a “remarkable transformation” that has seen six
Catholic justices, and no Protestant members, for the first time in history.72
Others have argued that “the powerful role of political factors appears
undeniable and substantial” in Establishment Clause cases, and that
“Republican-appointed judges were more likely than their Democratic-
appointed counterparts to reach a pro-religion decision in school cases.”73
This change in religious makeup has, unsurprisingly, at least correlated to –
if not caused in part – in a corresponding shift in the Court’s religious-
schools jurisprudence.
In 2000’s Mitchell v. Helms, for example, the Court considered a Louisiana

program that would offer financial assistance to public and private religious
and nonreligious schools.74 Under the program, religious schools could only
use the aid for “services, materials, and equipment” that were
“nonideological.”75 In upholding the program, the Court recast now two-
factor Lemon test into a purpose and effect inquiry.76 To define “effect,” the
Court offered a new test: whether the aid “result[s] in governmental
indoctrination; define[s] its recipients by reference to religion; or create[s]
an excessive entanglement.”77 As the Court held, whether the aid results in
indoctrination is “a question [as to] whether any religious indoctrination that
occurs in those schools could reasonably be attributed to governmental
70
Id.
71
Id.
72
William Blake, God Save This Honorable Court: Religion as a Source of Judicial
Policy Preferences, 1 Pol. Res. Quarterly, https://www.jstor.org/stable/41759316.
73
Michael Heise & Gregory C. Sisk, Free Exercise of Religion Before the Bench:
Empirical Evidence From the Federal Courts, 88 Notre Dame L. Rev. 1371, 1374 (2013).
74
Mitchell v. Helms, 530 U.S. 793 (2000).
75
Id. at 802.
76
Id. at 808.
77
Id.

14
action.”78 And no indoctrination of this kind could occur, the Court

established, if the program offered aid to both religious and nonreligious
schools alike – this, it held, was prima facie evidence as to a program’s
neutrality.79 The Court further underscored that another way of “assuring
neutrality” was that aid flowed to religious schools only through parental
choice.80
In several ways, then, Mitchell is emblematic of the early stages of the
Court’s rejection of landmark Establishment Clause principles. First, it set a
bright-line rule that programs aiding religious and nonreligious schools alike
were presumptively neutral under Lemon. This “new criterion,” as the
dissenters argued, was “unequaled in the history of Establishment Clause
interpretation,” elevating this presumptive neutrality to “a single and
sufficient test” of a program’s constitutionality.81 In this way, the Court
foreshadowed an interpretation of “neutrality” that would emerge over the
next two decades: that any program purporting to offer aid to nonreligious
schools must include, in equal measure, religious schools. Second, the
opinion underscored the importance of “genuine parental choice” as a
cleanser to the whiff of indoctrination. Third, as the Mitchell dissenters
noted, the plurality glossed over the potential for funds to be diverted to
religious education, refusing to examine how and when state aid could and
was being used in Louisiana schools.82
These newly evolving principles, from the collapse of Lemon into a facial
neutrality test to emphasis on parental choice and beyond, laid the
foundation for the next decade of religious-schools jurisprudence. Just one
year later, the Court held that a public school’s exclusion of a Christian club
from using school facilities after hours was unconstitutional viewpoint
discrimination, rejecting the school’s argument that the denial was required
under the Establishment Clause’s neutrality principles.83 In doing so, the
Court applied a modified version of Mitchell’s neutrality test, noting that the
Christian club sought “nothing more than to be treated neutrally and given
access to speak about the same topics as other groups.”84 In this way, the
school – as a matter of this notion of neutrality – was not only prohibited
from stopping the club’s activities, but also was required to support the
78
Id. at 809.
79
Id.
80
Id. at 810.
81
Id. at 900 (Souter, J., dissenting).
82
Id. (Souter, J., dissenting).
83
Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001).
84
Id. at 114.

15
organization. Or, put differently, this framework of neturality now meant

that to not bless the club’s existence would violate the Establishment
Clause’s mandate – a 180-degree turn from precedents past.
The Good News Club court also took aim at another pillar of Establishment
Clause jurisprudence, dismissing questions of potential explicit or implicit
coercion. “Whatever significance we may have [previously] assigned in the
Establishment Clause context to the suggestion that elementary school
children are more impressionable than adults,” the Court wrote, “we have
never extended our Establishment Clause jurisprudence to foreclose private
religious conduct . . . merely because it takes place on school premises where
elementary school children may be present.”85 Moreover, the Court held,
children could not be subject to coercion under this program, as the club
required consent of parents to join.86 As the dissenters observed, however,
the facts “affirmatively suggest[ed] the imprimatur of officialdom in the
minds of the young children” attending the school in which the club
operated. The Club, for example, was open solely to elementary school
students; was the only club permitted to operate immediately after the
conclusion of the school day; and numbers increased three-fold when the
school, rather than the local church, became the site of the club’s activities.87
The notion of parental choice as a cleanser for potential Establishment

Clause violations was front and center the next year, in 2002’s Zelman v.
Simmons-Harris,88 the landmark school-funding case upholding a school
voucher program that provided funds to parents to use for any type of
schooling, including religious and parochial schools. There, the Court
cemented the distinction between programs that provided aid “directly to
religious schools” and programs of “true private choice,” in which
government aid reached religious schools only through “genuine and
independent choices” of families.89 Because the program funneled funds for
religious schooling through parents – and because the program ostensibly
began to “assist poor children in failed schools,” it could not, the Court held,
be deemed an endorsement of religious schooling.90 Critically, the majority
opinion nowhere mentioned the Lemon test, entirely omitted reference to its
85
Id. at 115.
86
Id.
87
Id. at 144 (Souter, J., dissenting).
88
536 U.S. 639 (2002).
89
Id. at 649.
90
Id. at 654-60.

16
significant prior religious-schools precedents, focusing only on its recent

decisions in Good News Club, Zobrest, Mueller, and others.91
In this way, as the Zelman dissenters noted, the majority elevated the notion
of “private choice” to doctrinal supremacy: “Today,” Justice John Paul
Stevens wrote, “the Court seems to have decided that the mere fact that a
family that cannot afford a private education wants its children educated in
a parochial school is a sufficient justification for this use of public funds.”92
Zelman and its progeny stood, then, for a new set of “twin standards”:
neutrality, meaning “evenhandedness in setting eligibility as between [both]
religious and secular recipients of public money,” and “free choice.”93 And
as importantly, the Court would later interpret Zelman and Good News Club
as implicit rejections of Lemon’s principles – and the beginning of a turn
toward a different test, one of “history and tradition.”94
Zelman was a powerful catalyst for what later become the Roberts Court’s
pronounced turn toward protection of religious liberty, particularly Christian
religious liberty – often, above all other interests. The Roberts Court would
in this way serve, as one scholar has explained, as a “historic anomaly in its
religious liberty decision-making,”95 engendering a “transformation of
91
See generally id.; see also id. at 687-88 (Souter, J., dissenting) (“How can a Court
consistently leave Everson on the books and approve the Ohio vouchers?”).
92
Id. at 687 (Stevens, J., dissenting). Just two years later, the Court would reaffirm
Zelman’s holding, noting that under its Establishment Clause precedent, “the link between
government funds and religious training is broken by the independent and private choice of
recipients.” Locke v. Davey, 540 U.S. 712, 719 (2004) (finding that Washington’s refusal to
fund devotional theology instruction did not violate the Free Exercise Clause). For a
discussion of how support for public funding for private schooling was aligned to religious
conservatives’ belief that public schools had moved away from Christian values, see James
Forman, Jr., The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics,
54 UCLA L. Rev. 547, 563-78 (2007).
93
Zelman, 536 U.S. at 696-97 (Souter, J., dissenting).
94
See, e.g., Van Orden v. Perry, 545 U.S. 677, 686 (2005) (finding display of monument
inscribed with Ten Commandments on grounds of Texas State capitol did not violate
Establishment Clause) (“Many of our recent cases simply have not applied the Lemon test.
See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Good News Club v. Milford Cent.
Sch., 533 U.S. 98 (2001).” (cleaned up)) id. (“Whatever may be the fate of the Lemon test in
the larger scheme of Establishment Clause jurisprudence, we think it not useful [here]. . .
Instead, our analysis is driven both by the nature of the monument and by our Nation’s
history.”).
95
Harry Bruinius, How Religious Liberty Became the Court’s North Star, Christian
Science Monitor (June 30, 2023),

17
constitutional protections for religion.”96 Notably, the Court would not have
occasion to address another significant religious-schools First Amendment
question for a decade post-Zelman – though it did fill this time by reworking
its Religion Clause precedent outside of schools. But in a series of cases
decided from 2017-onward, the Court would build on its foundation in
Mitchell, Good Luck Club, Zelman and beyond to entirely revamp its
religious-schools precedent – and carve out significant space for the
protection of private Christian interests.
In 2017, the Court considered the constitutionality of the Missouri Scrap

Tire program, which provided grants to qualifying nonprofit organizations
to install playground surfaces made from recycled tires.97 The program,
excluded from grant eligibility any applicant owned or controlled by a
church, sect, or other religious entity; the Trinity Lutheran Church Child
Learning Center, a school affiliated with a church, therefore was denied
grant funding to repair its playground.98 The lower court denied Trinity
Lutheran’s challenge to the constitutionality of the program and the Eighth
Circuit affirmed, observing that a monetary grant to a religious institution
was a “hallmark of [] established religion” and thus a classic
antiestablishment violation.99
In deciding Trinity, the Court looked not to Lemon, Agostini, Schempp, or

other religious-schools Establishment Clause precedent, but instead
primarily to a Burger Court-era Free Exercise case under which Court struck
a Tennessee statute disqualifying ministers from serving as delegates to the
state’s Constitutional Convention.100 The Missouri policy, the Court held,
acted as a similar “disqualification statute” that put Trinity Lutheran to, as it
wrote, an impossible “choice”: receive the benefit, or retain religious
status.101 The program was unconstitutional, then, under Free Exercise– not
Establishment Clause – principles, as it mandated “automatic and absolute
exclusion” for Trinity Lutheran “from the benefits of a public program for
https://www.csmonitor.com/USA/Justice/2023/0630/How-religious-liberty-became-the-
Roberts-court-s-North-Star.
96
Id.
97
Trinity Lutheran Church and School v. Comer, 582 U.S. 449 (2017).
98
Id. at 453-54.
99
Id. at 457.
100
Id. at 459.
101
Id. at 462.

18
which [it was] otherwise fully qualified.”102 Excluding Trinity Lutheran

because of its religious status was “discriminatory,” and harmed Trinity
Lutheran “solely because of its religious character”- therefore violating the
Free Exercise Clause.103
As the dissenters observed, the Trinity Lutheran majority’s myopic focus on

the Free Exercise ramifications of the case ignored the critical Establishment
Clause inquiry: whether “funding of exactly this kind—payments to the
government to a house of worship” – would violate Establishment
principles.104 Here, funds flowed “directly from the public treasury to a house
of worship”105 and would be used, as admitted by Trinity Lutheran, “to assist
the spiritual growth of the children of its members and to spread the
Church’s faith to the children of nonmembers.”106 And this program went
beyond even Mitchell: it contained no provision for the secularity of aid, nor
safeguards to prevent aid being diverted for religious use.107
The Trinity Lutheran Court, in this way, introduced a new narrative frame,
one that had percolated since the Mitchell era but with Trinity Lutheran
gained new life. To deny funding to a religious organization would itself
evidence religious discrimination: a zero-sum game with the state as
predator, the church prey.108 Or, put differently, the Court endorsed an
emergent idea: that the “only alternative to governmental support of religion
is governmental hostility.”109 And under Trinity Lutheran’s mandate, not
even the flimsy chain-breaker of “genuine choice” need be present – funding
flowing directly from the state to the church could now pass constitutional
muster.
Doctrinally, the implications for Religious Clause precedent, particularly in

schools, were stark. The Court’s preference for deciding the case as a Free
Exercise vehicle, as Caroline Mala Corbin has explained, was a “double
102
Id.
103
Id. at 466.
104
Id. at 473 (Sotomayor, J., dissenting).
105
Id. at 474.
106
Id. at 475.
107
Id. at 477.
108
Indeed, in the Court’s famous Footnote 3, it wrote: “This case involves express
discrimination based on religious identity with respect to playground resurfacing. We do not
address religious uses of funding or other forms of discrimination.”
109
Id. at 493.

19
blow to the Establishment Clause”: it both “requires the government to give

taxpayer money to churches, eliminating the longstanding ban on direct cash
payments” to religious institutions, and also “opens the door to the
government favoring some religious over others.”110 This “remarkable
privileging of religion,”111 in fact, would continue until the present day.
This pervasive “discrimination” narrative would continue in earnest in the
Roberts Court’s next major religious-schools case, 2020’s Espinoza v.
Montana Department of Revenue.112 There, parents challenged a Montana
program that granted tax credits to those who donate to organizations that
award scholarships for private tuition, but prohibited families from using the
scholarships at religious schools pursuant to Montana’s constitution.113 The
parents intended to use the aid to attend the private Stillwater Christian
School. In striking the program, the Espinoza Court first cast the program as
a Free Exercise, not Establishment, question.114 It then zeroed in on the fact
that the funds reached schools only as a matter of “private choice.”115 It then
delivered the hammer blow: that, under what it cast as Trinity Lutheran’s
“unremarkable” conclusion, a state could not, under the Free Exercise
Clause, “disqualify[]s otherwise eligible recipients from a public benefit
‘solely because of their religious character.’” And the Court rejected
arguments that Trinity Lutheran could not apply because the plain use here
would be to support religious education, skirting entirely the question of the
funds’ use: as it held, the case turned “expressly on religious status and not
religious use.”116 Moreover, it amplified its support for an examination of
history in lieu of a Lemon-style analysis, noting that throughout the founding
era and early 19th century, governments funded private and religious
110
Caroline Mala Corbin, Trinity Lutheran: A Double Blow to the Establishment Clause,
Take Care (June 30, 2017), https://takecareblog.com/blog/trinity-lutheran-a-double-blow-to-
the-establishment-clause.; see also Leslie Griffin, Symposium: Bad News from Trinity
Lutheran – Only Two Justices Support the Establishment Clause, SCOTUSBlog (June 26,
2017), https://www.scotusblog.com/2017/06/symposium-bad-news-trinity-lutheran-two-
justices-support-establishment-clause/ (noting that only the two dissenting justices
recognized the Establishment Clause programs inherent in the funding scheme).
111
Id.
112
591 U.S. __, 140 S. Ct. 2246 (2020).
113
Id.
114
As Justice Thomas explicitly wrote in concurrence, “This case involves the Free
Exercise Clause, not the Establishment Clause.”). This rejection of the “play in the joints”
between the Religion Clauses prohibited, as Justice Breyer wrote in dissent, the once-critical
potential for “religious exercise to exist without sponsorship and without interference.”
115
Id. at 2254 (citing Zelman, 536 U.S. 639 (2002)).
116
Id. at 2255-56.

20
schools.117 The Espinoza Court then delivered its landmark ruling: “A State
need not subsidize private education. But once a State decides to do so, it
cannot disqualify some private schools solely because they are religious.”118
After Espinoza, the meaning in the tea leaves was clear: programs that
exempted from funding – even direct funding – of religious institutions
would not survive the Roberts Court’s “discrimination” inquiry. This came
to bear merely two years later, when the Court decided its two most recent
religious-schools cases, both heavily tinged with the narrative of religious
discrimination. First, in Carson v. Makin, the Court considered a Maine
program that subsidized attendance at private schools for rural students who
lived in communities too remote to have a public school of their own.119
Maine limited its tuition assistance, however, only to nonsectarian schools.120
Parents seeking tuition assistance to send their children to two Christian
schools – Bangor Christian Schools (“BCS”) and Temple Academy –
challenged the policy.121 Notably, both BCS and Temple explicitly – and
publicly – espouse homophobic, transphobic, and other discriminatory
views. BCS, for example, states on its Web site that it may punish by penalty
of “probable expulsion” “presenting oneself as a gender other than the one
included on his or her birth certificate”122 and notes its belief that any sexual
activity outside of heterosexual marriage, even those “becoming more
accepted in the culture and the courts, are sinful perversions of and
contradictory to God’s natural design.”123 Temple, for its part, requires all
employees to acknowledge on their employment agreement that “God
recognizes all homosexuals and other deviants as perverted,”124 and the
school “will not admit a child who lives in a two-father or a two-mother
family.”125
117
Id. at 2258.
118
Id. at 2261.
119
596 U.S. 767 (2022).
120
Id.
121
Id.
122
Bangor Christian Schools Student Handbook at 21 (July 30, 2019),
https://assets.speakcdn.com/assets/1940/bcs_student_handbook_2019-
2020_7_30_2019.pdf.
123
Id. at 4.
124
ACLU, Civil Rights and Religious Groups Urge Federal Appeals Court Not to Affirm
that Maine Need Not Fund Religious Education (Jan. 8, 2020), https://www.aclu.org/press-
releases/civil-rights-and-religious-groups-urge-federal-appeals-court-affirm-maine-need-
not-0.
125
Id.

21
Unsurprisingly, the Court relied on Trinity Lutheran and Espinoza, finding

Maine’s requirement violated the Free Exercise Clause, primarily because
Maine had “disqualified [BCS and Temple Academy] from [a] generally
available benefit solely because of their religious character.”126 Because the
program was a “neutral” one under which “the independent choices of
private benefit recipients” dictated the flow of funds, Maine then would have
been required to fund religious schooling equally to its private
counterparts.127 And the Court, as it had in both Trinity Lutheran and
Espinoza, made clear its belief in Free Exercise supremacy: “an interest in
separating church and state ‘more fiercely’ than the Federal Constitution”
required, as the Court deemed the Maine program did, “cannot qualify as
compelling in the face of the infringement of free exercise.”128 Further, the
Court eviscerated the potential to evaluate the extent of religious activity
that state funding would sponsor, noting that “scrutizining whether and how
a religious school pursues its educational mission would [] raise serious
concerns about state entanglement with religion.”129 Again, the Court
centered Maine’s program not as an attempt to abide by Establishment
principles, but instead as naked religious “discrimination” against Christian
schools.130 The Court, of course, also made no mention of BCS and Temple
Academy’s respective anti-gay, anti-trans, and heteronormative policies, a
point taken up in dissent.131
Carson v. Makin’s practical and doctrinal implications were, too, significant.

Maine, then, under its policy, would be mandated to subsidize students’
attendance at schools like BCS and Temple Academy, nakedly funding
religious practice and teaching. More, Carson powerfully signaled the
Court’s rejection of the compromise once struck by the Religion Clauses –
and its effective erasure of Establishment Clause protections in the religious-
schools context.
126
596 U.S. 767.
127
Id.
128
Id. at 781.
129
Id. at 787.
130
Id. at 779.
131
Id. at 803-05 (Breyer, J., dissenting) (“Bangor Christian and Temple Academy, for
example, have admissions policies that allow them to deny enrollment to students based on
gender, gender-identity, sexual orientation, and religion. . . Legislators did not want Maine
taxpayers to pay for these religiously based practices—practices not universally endorsed by
all citizens of the state.”).

22
The final nail in the Establishment Clause coffin would come just six days
later, when the Court issued its opinion in another religious-schools case,
Kennedy v. Bremerton.132 Kennedy concerned a Washington high school
football coach who had been placed on leave after refusing to cease midfield
prayer. The prayers took place at midfield and were attended by nearly all,
if not all members of the football teams, as well as family and audience
members, immediately after football games.133 The Court sided with
Kennedy, finding that the decision violated Kennedy’s rights under the Free
Exercise Clause: the program was not neutral or generally applicable, as it
targeted Kennedy’s actions “at least in part because of their religious
character” and was a “bespoke requirement” specifically addressed to his
religious exercise.134
But the Court also rejected the district’s argument that it had to restrict
Kennedy’s activity to avoid running afoul of the Establishment Clause. In
doing so, the Court explicitly disavowed prior Courts’ “ambitious, abstract,
and ahistorical approach” to the Establishment Clause, claiming that the
Court had “long ago abandoned Lemon” and its progeny.135 Instead of the
endorsement test under Lemon, the Court reframed the Establishment
Clause’s key inquiry to be an interpretation based on “reference to historical
practices and understandings” – one explicitly focused on “original meaning
and history” of the relationship between religion and schooling.136 Moreover,
the Court rejected entirely theories of implicit coercion wrought by school
officials when conducting religious activity in front of students, instead
focusing on the alleged “absence of evidence of coercion” in the record –
despite, as the dissenters noted, record evidence showing that at least one
student stated he felt pressured to join the prayer.137 And again, the Court
132
597 U.S. 507 (2022).
133
Puzzlingly, the majority described the midfield events as “short, private, personal
prayer[s].” Id. at 525. As Justice Sonia Sotomayor explained in dissent, providing
photographic evidence, the “record told a different story” than that presented by the majority,
which attempted to cast the midfield prayer as “private.” Id. at 545-52 (Sotomayor, J.,
dissenting).
134
Id. at 526-27.
135
Id. at 534.
136
Id. at 534-35.
137
Id. at 539-40; id. at 546 (Sotomayor, J., dissenting) (noting the majority’s “nearly
toothless version of the coercion analysis”); id. at 557 (noting the district court’s factual
finding that “players had reported feeling compelled to join Kennedy in prayer to stay
connected with the team or ensure playing time”) (internal quotation marks omitted).

23
framed the case not as one of protection from state indoctrination, but rather,
one meant to ferret out “discrimination” against religious observance.138
In sum: over the past 20-plus years, the Court’s treatment of religion in
schools has taken a drastic doctrinal and narrative shift. Indeed, as Justin
Driver has written, these “[t]wo decades [of religious-schools jurisprudence]
have succeeded in transforming yesteryear’s Hail Marys into today’s
answered prayers.”139 Doctrinally, from Mitchell to Zelman to Trinity
Lutheran and its progeny, the Court has radically reshaped Religion Clause
doctrine. Gone, officially, is the Lemon endorsement test and an inquiry into
the purpose and effect of state action, replaced by a nebulous reliance on
“history”; erased entirely is the belief in implicit coercion, particularly in
young students, when state actors conduct religious exercises. Gone, too, is
the Court’s once-sturdy belief in, rhetorical reference to, and support for the
Jeffersonian “wall of separation between church and state,” supplanted
instead by the theory that, perhaps, religion has always been a part of how
the state is run. And, perhaps most critically, gone is the “play in the joints”
between the Religion Clauses, as case after case in the Roberts Court has
transformed into a Free Exercise-above-all inquiry, Establishment Clause be
damned.
The narrative shift, then, follows. What was once a story of protecting young
minds from religious indoctrination by the state has become a story of
protecting religious exercise – namely, Christian religious exercise – from
all comers. Under this telling, a state that chooses not to equally fund religion
nor permits state officials to publicly exercise religion, or deigns to question
the legitimacy of religious exercise, is on its face a discriminatory actor.
Indeed, many have celebrated the line of cases culminating in the Carson-
Kennedy one-two punch as critical bulwarks against this type of religious
discrimination.140
138
Id. at 544.
139
Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over
Religion and Education, 136 Harv. L. Rev. 208, 210 (2022) (noting also that even “as
recently as the turn of the century, it seemed virtually unimaginable that the Supreme Court
would have voted to grant certiorari in either Carson or Kennedy, let alone that it would find
the underlying claims of religious infringement meritorious”).
140
See, e.g., Heritage Foundation, With Carson v. Makin, the Supreme Court Closed the
Book on Religious Discrimination in School Choice (Sept. 2, 2022),
https://www.heritage.org/education/report/carson-v-makin-the-supreme-court-closed-the-
book-religious-discrimination-school.

24
B. Race-Conscious Decisionmaking in Schools
The Court’s treatment of race-conscious decisionmaking in the school

setting has also, over the past 25 years, taken a dramatic shift. But, as this
Part explains, these developments have been what we may call
“antiparallel” to that taken in the Court’s religious-schools jurisprudence.
While the Court’s Religion Clause jurisprudence, particularly with respect
to schooling, has worked to carve out increased protections for the rights of
(certain) religious students, teachers, and organizations, its caselaw on race-
consciousness in the schools has done the opposite – minimized space for
the protection of racial minorities. More, it has, as this Section explains,
increasingly endorsed an idea that would erase the notion of race entirely –
a “colorblind” approach to education.
1. Bakke, Grutter, and Gratz: The Foundational Cases
The Court first recognized that the use of race as an admissions criterion
was constitutionally permissible in 1973’s Regents of the University of
California v. Bakke.141 The highly fractured Court produced six opinions,
with five justices apiece agreeing that while race-conscious decisionmaking
was constitutional, a strict racial quota system was not.142 In doing so, the
Court recognized as compelling a university system’s interest in the
“attainment of a diverse student body,” but established that a “fixed number
of places” given to a minority group would not be a “necessary means
toward that end.”143 As the Court observed, pluralism and academic freedom
that would be engendered by a diverse student body was critical, as the
“nation’s future depends upon leaders trained through wide exposure to the
ideas and mores of students as diverse as this [n]ation.”144
The Court would not consider the use of race in public higher education for
another 25 years, until 2003, when a divided Court for the first time upheld
an affirmative action scheme.145 In Grutter, the Court considered the
University of Michigan Law School’s admissions policy, under which
141
438 U.S. 265 (1978).
142
See id.
143
Id. at 315-16.
144
Id. at 312, 314.
145
Grutter v. Bollinger, 539 U.S. 306 (2003).

25
admissions officers “consider[ed] an applicant’s race” along with other

factors in a holistic decision-making process, with the goal of enrolling a
“critical mass” of racially diverse students.146 In upholding the program, the
Court formally reaffirmed and cemented Bakke’s holding that diversity was
a compelling state interest under the Equal Protection Clause to justify the
use of race in higher education admissions.147
Notably, the Court explicitly deferred to the Law School’s “educational

judgment” that diversity was necessary, noting the “special niche occupied
by” and unique expertise of university personnel.148 But beyond merely this
deference, the Court also took pains to independently recognize the
educational benefits that would flow from student body diversity, from
preparation for a multiracial society to helping break down racial
stereotypes.149 This diversity was critical, the Court held, to uphold the
promises of Brown v. Board of Education and its progeny – to make good
on education as “the very foundation of good citizenship.”150 The Court
further recognized that the “unique experience of being a racial minority
society” was critical at a time in which “race unfortunately still matters.”151
As it had in Bakke, however, the Court rejected the use of a quota system,
noting that any constitutionally permissible admissions program must be
flexible and holistic, with race or ethnicity only as a “plus” in a file.152 The
Court also expressed its hope that race-conscious admisions programs of
this sort could have a termination point, noting that in the quarter-century
since Bakke, the number of racial minorities in higher education had
improved. As the Court wrote: “We expect that 25 years from now, the use
of racial preferences will no longer be necessary to further the interest
approved today.”153 In concurrence, Justice Ruth Bader Ginsburg too
recognized that both unconscious bias and “rank discrimination” based on
race continued to exist, resulting in dramatically unequal educational
146
Id. at 318-19.
147
Id. at 325.
148
Id. at 328-29.
149
Id. at 330.
150
Id. at 331.
151
Id. at 333.
152
Id. at 334.
153
Id. at 343.

26
opportunities.154
To be clear: I by no means suggest here that the promises of Brown, Grutter,

and their progeny were robust or even sufficient to address racial inequality,
or that they were the products of a Court genuinely concerned with racial
repair. To the contrary. As many scholars, including myself, have long
argued, it is my view that the Court has for the better part of its existence
failed to take steps to properly recognize, address, and remedy the legacy of
racial harm in America.155 Instead, I argue in this Part that in the past 20
years, the Court has not only receded from these limited equity gains but
has begun the work of winding back the clock: of returning the nation, the
state of the law, and the narrative surrounding race relations, to a time of
even greater and more endemic inequality. And it has done so, as the
following section argues, through embracing a single, simple narrative: a
post-racial view of colorblindness and a perverse form of “reverse
discrimination.”
2. From Parents Involved to SFFA: Becoming Colorblind
Just two years after Grutter and Gratz, however, the Court’s makeup
changed: most notably, Justice Samuel Alito replaced the retiring Justice
Sandra Day O’Connor, the sole conservative vote for affirmative action
policies, on the bench. In the years that followed, the conservative-majority
Court would make an about-face from its commitment to the goals of racial
diversity, its recognition of anti-Black racism, and the notion that race
should be considered – at all – in educational admissions at all levels.
Instead, it would wholeheartedly endorse an ideology of “colorblindness,”
an attempt to eradicate race-consciousness – and racial recognition – in its
entirety.
The Court began its assault on race consciousness in schools in 2007’s

Parents Involved v. Seattle School District No. 1, which consolidated
challenges to similar programs out of K-12 public school districts in Seattle,
Washington, and Jefferson County, Kentucky.156 The respective programs
both adopted student assignment plans that allowed students to select their
154
Id. at 345-46 (Ginsburg, J., concurring).
155
156
551 U.S. 701 (2007).

27
desired schools, with both using race as a factor in school-assignment

decisions: Seattle as a tiebreaker and Jefferson County as an affirmative
factor in achieving racial diversity in schools.157 The Court, in a splintered
opinion, struck both programs, and in doing so reached several primary
conclusions.
First, the Court held that Grutter and its compelling interest in diversity did
not govern in the K-12 context given the “unique context of higher
education.”158 In doing so, the Court explicitly held that racial diversity was
not a compelling interest that could justify the use of race in admissions
processes in public high schools.159 Second, the Court held that even if
diversity were a compelling interest, the programs at issue were not
narrowly tailored given that they were, as the Court held, tied to the
districts’ racial demographics, and were effectively tailored to attaining a
specific level of enrollment that would correspond to the districts’ racial
makeup.160 The Court rejected this as impermissible “racial balancing,”
rejecting the districts’ attempts to argue that these arrangements were
needed to avoid the consequences of racialized housing patterns that
produced segregated communities. Third, the Court dramatically recast
Swann, painting the case as one that addressed only a “possible state
objective,” not the “means . . . that a school district might employ to achieve
that objective.”161 More, the Court framed as entirely dicta Swann’s
conclusion that districts could deploy race-conscious criteria to achieve
integratory goals.
Fourth, and perhaps most consequentially, the Court reframed the narrative
to situate Parents Involved’s conclusion as required under the promise of
Brown. As the Court interpreted Brown, it stood for the principle that
admission to the public schools required use only of a “nonracial basis.” As
the Court wrote, “[b]efore Brown, schoolchildren were told where they
could and could not go to school based on the color of their skin. The school
districts [here] have not carried the heavy burden of demonstrating that we
should allow this once again.”162 Or, put differently, measures meant to aid
157
Id.
158
Id. at 724-25.
159
Id.
160
Id. at 727.
161
Id. at 738.
162
Id. at 747.

28
students of color were themselves discriminatory under the auspices of

Brown. Justice Roberts stamped this colorblind conclusion in the final line
of the opinion: “The way to stop discrimination on the basis of race,” he
wrote, “is to stop discriminating on the basis of race.” Any consideration of
color, race, or ethnicity, then, was itself discrimination.
Seven years later, a plurality of the Court would conclude that Grutter’s
guarantees could be cabined by the voters of a state who chose to prohibit
the use of race-conscious preferences.163 In Schuette, the Court upheld a
Michigan amendment, voted by referendum, that banned the use of
affirmative action in state programs, specifically with respect to university
admissions. While the Court noted that the case was ostensibly not about
the constitutionality of race-conscious admissions programs, it nonetheless
made its shifting position clear: “Government action that classifies
individuals on the basis of race,” the Court wrote, “is inherently suspect and
carries the danger of perpetuating the very racial divisions the polity seeks
to transcend.”164 Justice Scalia went farther still in concurrence, chiding the
Court’s “sorry line of race-based-admissions cases” that were, in his mind,
discriminatory by their very nature.165 And Justice Roberts, also in
concurrence, doubled down on his Parents Involved colorblind canon: “it is
not out of touch with reality,” he wrote, “to conclude that racial preferences
may themselves have the debilitating effect of reinforcing” racial
discrimination.166
The crux of the Court’s holding, however, was based in the importance of
the political process, and that Michigan’s voters had empowered the
amendment. The ability of the public to question “programs designed to
increase diversity,” the Court wrote, was “necessary . . . to transcend the
stigma of past racism.”167 But in so holding, the Court ignored respondents’
arguments about the very nature of that democratic process: both that the
amendment specifically targeted racial minorities and that such racial
minorities had always been represented unequally in the political system
and voting body. As Justice Sotomayor wrote in dissent, the decision
163
Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291 (2014).
164
Id. at 308.
165
Id. at 317 (Scalia, J., dissenting).
166
Id. at 316 (Roberts, J., concurring).
167
Id. at 314. (majority op.).

29
“reconfigure[d] the political process in a manner that burden[ed] only a

racial minority.”168 More, she wrote, the majority ignored the political reality
that minority groups lacked “meaningful and equal access” to the
democratic process, recounting the long post-Civil War history of states’
categorical denial of political representation to racial minorities that would
lead to the decisions in Seattle and Hunter.169
The Court would next squarely take up the question of affirmative action
again in Fisher v. University of Texas, a case sponsored from inception by
the conservative activist Edward Blum, also behind the voting-rights case
Shelby v. Holder.170 In a narrow majority opinion authored by Justice
Anthony Kennedy, the Court upheld the University of Texas’s “Top Ten
Percent” admissions plan, under which admissions officers considered race
as part of a holistic review.171 In doing so, it clarified its pronouncements in
Fisher I: that now, only “some” judicial deference was owed to universities
on measuring the benefits that flow from diversity, and virtually “no
deference” was owed universities when determining whether the use of race
was narrowly tailored under strict scrutiny.172
Even as it upheld the plan, however, the Court took a new, cautionary view
on the use of “[f]ormalistic racial classifications.”173 More, it warned of a
looming “challenge”: how to reconcile the “pursuit of diversity with the
constitutional promise of equal treatment and dignity.”174 And, it held, its
holding did not absolve the University of Texas or other institutions future
scrutiny: educational institutions, the Court held, had an “ongoing
obligation” to continue to review its admissions policies to determine
whether they were necessary.175 The four conservative justices, in dissent,
further forecast the storm coming for the diversity rationale – Justice
168
169
Id. at 342-47.
170
579 U.S. 365 (2016) (“Fisher II”). The case was preceded by the Court’s first pass at
reviewing the plan, under which the Court held the plan must be evaluated under strict
scrutiny and remanded back to the lower courts to apply the correct standard. See Fisher v.
University of Texas, 570 U.S. 297 (2013) (“Fisher I”).
171
Id. at 373.
172
Id. at 376-77.
173
Id. at 380.
174
Id. at 388.
175
Id.

30
Thomas, for example, called it a “faddish theory.”176
The Court’s makeup again changed dramatically after Fisher: namely, the
conservative trio of Justices Brett Kavanaugh, Neil Gorsuch, and Amy
Coney Barrett filled the seats of Justices Kennedy, Ginsburg, and Scalia.
What was once a 5-4 majority in favor of maintaining – albeit narrowly –
race-conscious remedies transformed to an at least 6-3 coalition in favor of
their abolishment. Notably, though none of the newly-appointed justices
had a a demonstrated record in the affirmative-action area, the new
members’ prior records on race portended a radical change in the Court’s
race-consciousness cases.
Justice Brett Kavanaugh, for example, was, prior to his judicial service, a
staunch opponent to affirmative action programming. Not only was he
“integral” to developing the George W. Bush administration’s case against
the University of Michigan’s affirmative action programming at issue in
Grutter, but also openly opposed policies that would promote minority
businesses as “naked racial set-aside[s].”177 Kavanaugh also explicitly
argued against affirmative action programming, albeit outside of the schools
context, in a case concerning whether parties could benefit from
programming that acknowledged their status as native Hawaiians. 178 As
Kavanaugh argued, as counsel of record on the brief, “a state has no right
to engage in racial classifications on the right to vote in state elections
simply to preserve a particular culture.”179 Indeed, in a 1999 statement
discussing the case, Kavanaugh made his views clearer still: “I see as an
inevitable conclusion within the next 10 to 20 years when the court says we
are all one race in the eyes of government.”180 More, Kavanaugh, throughout
176
Id. at 389 (Thomas, J., dissenting).
177
See Li Zhou, Kavanaugh Bragged About His Clerks’ Diversity. His Legal Record Is
Another Story, Vox (Sept. 8, 2018), https://www.vox.com/2018/9/8/17821478/supreme-
court-nominee-brett-kavanaugh-diversity.
178
Id. (citing Rice v. Cayetano, 528 U.S. 495 (2000)).
179
Brief of Amici Curiae Ctr. for Equal Educ. Opp’y, et al., Rice v. Cayetano, No. 98-
818, 1999 WL 345639 (1999).
180
Notably, though, when asked about this statement at his confirmation hearings,
Kavanaugh stated that his remark was merely an “aspirational suggestion,” and that the “long
march for racial equality is not finished and racial discrimination is still a reality we see on
an all-too-frequent basis.” Confirmation Hearing on the Nomination of Brett M. Kavanaugh
to be an Associate Justice of the Supreme Court of the Unietd States: Hearing Before the

31
his tenure on the D.C. Circuit, repeatedly, in both majority and dissenting
opinions, rejected Black litigants’ retaliation and discrimination claims.181
Justice Amy Coney Barrett, for her part, ruled in 2019 that the repeated and
frequent use of the “n-word” by a supervisor directed to their Black
employee did not constitute a racially hostile work environment. 182 And
similarly, Justice Neil Gorsuch, while on the Tenth Circuit, held that
requiring a housekeeping staff to speak only English while on the job did
not create a hostile work environment for Hispanic employees,183 as well as
joined a majority opinion finding in favor of an employer who demanded
an employee provide right-to-work papers – and then fired him, and
demanded an apology, when the employee ultimately produced the
paperwork.184 This shift away from a coalition that included Justice Anthony
Kennedy, a long-time friend to affirmative action causes and the deciding
vote in cases such as Fisher, would bear fruit in the 2022-23 Term, when
Ed Blum’s conservative coalition would successfully shepherd another
affirmative-action challenge through to the Court.
In Students for Fair Admissions v. Harvard,185 Blum’s Students for Fair

Admissions (“SFFA”), a nonprofit group formed to “combat racial
Senate Committee on the Judiciary, 115th Cong. 545 (2018) (response of then-Judge Brett
M. Kavanaugh to then-Sen. Kamala Harris, Ranking Member, S. Comm. on the Judiciary).
181
See, e.g., Howard v. Office of the Chief Adminstrative Officer of the U.S. House of
Representatives; Rattigan v. Holder
182
See Smith v. Illinois Dep’t of Transportation, 936 F.3d 554 (7th Cir. 2019) (noting
that while the “n-word is an egregious racial epithet,” the plaintiff “can’t win simply by
proving that the word was uttered,” and must have “demonstrate[d] that [the supervisor’s]
use of this word altered the conditions of his employment and created a hostile or abusive
working environment”). Notably, Justice Brett Kavanaugh, then on the D.C. Circuit, said he
would have held that the use of the “n-word” would have “suffice[d] by itself to establish a
racially hostile work environment.” A Look at Judge Amy Coney Barrett’s Notable Opinions,
Votes, AP (Oct. 11, 2020), https://apnews.com/article/race-and-ethnicity-donald-trump-
confirmation-hearings-discrimination-amy-coney-barrett-
4380ef16b3da79836151bcaaa7eda224. The NAACP filed a brief in opposition, based on the
Smith ruling, to Justice Barrett’s confirmation. See NAACP Condemns Misrepresentation by
Amy Coney Barrett on Racial Justice Ruling, Calls for Judiciary Committee to Pursue, The
Crisis (Oct. 21, 2020), https://naacp.org/articles/naacp-condemns-misrepresentation-amy-
coney-barrett-racial-justice-ruling-calls-judiciary.
183
See Montes v. Vail Clinic, 497 F.3d 1160 (10th Cir. 2007).
184
See Zamora v. Elite Logistics, Inc., 478 F.3d 160 (10th Cir. 2007).
185
600 U.S. 181 (2023).

32
classifications” in college admissions,186 brought a pair of challenges to

Harvard University and the University of North Carolina’s admissions
policies. After two lengthy trials – at which the universities offered dozens
of fact and expert witnesses and at which SFFA put forth only two 187 – the
trial court held, and the First Circuit affirmed, that both UNC and Harvard’s
policies comported with the Court’s affirmative action precedents. As most
predicted it would, the newly constituted 6-3 conservative majority of the
Court found in favor of SFFA in the consolidated case.
In doing so, however, the Court also reframed both doctrinally and
narratively not only nearly fifty years of affirmative action precedent, but
significant pillars of the Court’s centuries-long civil rights jurisprudence.
Under this new colorblind narrative, for example, the Court interpreted
Brown v. Board of Education not only as a critical achievement for Black
equality, but instead, as a firm statement that “the time for making
distinctions based on race had passed.”188 The invalidation of miscegenation
statutes in Loving v. Virginia, the Court wrote, should be celebrated not
solely as a ban on interracial marriage, but also, as a reminder that “all
invidious racial discriminations” are unlawful.189 Yick Wo v. Hopkins, then,
not only held that race-neutral laws applied in prejudicial ways to minorities
were unconstitutional, but also that law must not consider any “differences
of race.”190 As to these landmark precedents and more, the Court made itself
clear: “colorblindness” was “in fact the proud pronouncement[] of cases like
[these].”191
The Court’s affirmative-action precedents fared no better. First, Grutter’s

25-year hope became doctrinal law: “at some point,” the Court wrote,
affirmative action “must end.”192 And the interests which the Court once
lauded – preparation for pluralist societies, respect and empathy for others
unlike ourselves, and a robust exchange of ideas – were not “not sufficiently
186
Students for Fair Admissions, Home Page (last accessed Mar. 1, 2024)
https://studentsforfairadmissions.org/#:~:text=Students%20for%20Fair%20Admissions%2
0is,unfair%2C%20unnecessary%2C%20and%20unconstitutional.
187
600 U.S. at 343 (Sotomayor, J., dissenting).
188
Id. at 204.
189
Id. at 205.
190
Id. at 206.
191
Id. at 227.
192
Id. at 213.

33
coherent” or “measurable” to survive strict scrutiny.193 More, the use of race-

conscious decisionmaking, the Court held anew, did not actually benefit
students of color: rather, admitting students in part on the basis of race was
a harmful “stereotyping” that could only cause “hurt and injury” to its
beneficiaries.194 Justice Sotomayor, in dissent, noted the Court’s about-face
from a half-century of race-conscious precedent, “from Brown to Fisher,”
that once had worked as an attempt to “equalize educational opportunity in
a society structured by racial segregation.”195 The “superficial rule of race
blindness” endorsed by the Court, Sotomayor wrote, would undo any
progress made toward racial equality by the Court’s prior affirmative action
work.196
In this way, the arc of the affirmative-action cases of the past twenty years
perhaps always inevitably led here. The Court once endorsed the
importance of race-conscious intervention as a compelling interest
necessary to safeguard democracy, produce robust intereactions, and
prepare students for life in a (very racialized) and very real world. And it
once cast its landmark judicial interventions, in education and beyond, as
powerful attempts to equalize life in modern America. But over the past two
decades, from Parents Involved to SFFA, the Court has roundly rejected
these ideals – and in doing so has rejected its role as an advocate for racial
equity. More, these two decades have seen the Court move toward a post-
racial America in which any mention of or action based on race is not only
nefarious but unconstitutional. In doing so, it has not only as a matter of
doctrine eliminated interventions meant to support racial minorities but also
has, as a matter of narrative, erased any space once carved out for them.
And as the space occupied by race has shrunk, the space occupied by
religion has ballooned. As discussed in the following Part, this antiparallel
trajectory has seen the Court shift its attention away from racial minorities
to a new ostensible “minority” in need of protection and intervention.
III. “NEUTRALITY,” “COLORBLINDNESS,” “DISCRIMINATION,” AND

“MINORITIES”
As discussed above, the Court’s tracks in its religious schools and
193
Id. at 214.
194
Id. at 220-21.
195
196
Id.

34
affirmative-action jurisprudence have moved in opposite directions: one

toward maximizing space for (Christian) religious observance, the other
toward minimizing space for (Black and brown) racial minorities. But an
examination of this dual-track system also reveals the Court’s shifting,
slippery, and inconsistent approaches to issues critical to both sets of doctrine
and to education, antidiscrimination, and constitutional law more broadly.
These include, for example, the notion of state “neutrality” or “blindness”
toward racial and religious identity in schools; the concept of
“discrimination” and whom it insulates; and the degree of “deference” to be
afforded various constituents in the school system.
As this Part makes clear, the Court has over the past two decades increasingly
endorsed irreconcilable visions of these critical doctrinal and theorical
considerations in the race and religion contexts in schools. Neutrality, on this
telling, demands that the state must act blindly toward race but permit,
support, and fund even majority religious observance. A state discriminates
on the basis of religion when it does not endorse religious exercise, but
discriminates on the basis of race when it endorses racial minorities. And
religious persons, organizations, and educational institutions are owed nearly
absolute deference while secular administrators, schools, districts, and
universities are afforded nearly none. As this Part explains, this has created
not only antiparallel doctrinal tracks but also antiparallel theoretical
frameworks: one designed to protect Christian religious exercise, the other
designed to undermine racial equity. Indeed, as Derek Black has written, the
court has, with these competing systems, set a “collision course” between
“equal educational opportunity and religion.”197
A. “Neutrality” and “Colorblindness”
It was perhaps once true, particularly in the schools context, that “all
agreed[]” that “neutrality is a value to be sought after in government
interaction with religion.”198 And it was also perhaps once true that the Court
would routinely subject to strict scrutiny state exercises that failed the test of
197
Black, supra note __, at 582.
198
Lincoln Davis Wilson, Note, Judgmental Neutrality: When the Supreme Court
Inevitably Implies that Your Religion is Just Plain Wrong, 38 Seton Hall L. Rev. 715, 719
(2008).

35
“neutrality” when burdening religious exercise.199 Indeed, the Court’s view

once was that the Religion Clauses, in fact, compelled the state to “pursue a
course of neutrality toward religion.”200
More, neutrality was once defined in the religious-schools context as an

abstention of the state from religious affairs entirely. Under the auspices of
Everson, for example, the state could not take action that “aid[es] one
religion, aid[es] all religions, or prefer[s] one religion under over another.”201
And the Barnette Court made clear that the “essence of the religious freedom
guaranteed by our Constitution” is that “no religion shall either receive the
state’s support or incur its hostility.”202 Indeed, from the 1960s to the 1990s,
the Court consistently echoed its support for this idea of neutrality-as-
abstention, even as it moved away from strict separationism: “[i]t is neither
sacrilegious nor antireligious,” the Court wrote in Engel, “to say that each
separate government in this country should stay out of the business of writing
or sanctioning official prayers.”203 The Lemon test, too, codified this principle
of neutrality as firmly a secular construction: to survive, the government
action must “have a secular legislative purpose” and “neither advance[] nor
inhibit[] religion.”204 Some have called this view one of “formal neutrality,”
under which, so long as a government provides a neutral governmental
process, the effects of government action need not be examined. 205
But the modern Court has turned away from what some this type of
separationist “neutrality” and embraced a diametrically opposite view of a
“neutral” approach to religious exercise in schools. On this telling,
regulations aimed at secular state activity, particularly in schools, are on their
face not sufficiently neutral, as they treat secular activity more favorably than
199
Ronald J. Colombo, The Repeal of Religious Accommodations—A Constitutional
Analysis, 73 Am. U. L. Rev. 729, 733 (2024).
200
Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973).
201
Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947).
202
West Virginia v. Barnette, 319 U.S. 624, 654 (1943).
203
Id. at 435.
204
Lemon v. Kurtzman, 403 U.S. at 612-13.
205
See, e.g., Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality
Toward Religion, 39 DePaul L. Rev. 993 (1990); see also Laura Portuondo, Effecting Free
Exercise and Equal Protection, 72 Duke L.J. 1493, 1544 n.259 (2023) (citing Laycock and
comparing “formal neutrality” to a “religion-blindness” approach); Joy Milligan, Religion
and Race; On Duality and Entrenchment, 87 N.Y.U. L. Rev. 393 (2012) (discussing the
evolution of “formal neutrality” theories in race- and religion-conscious actions).

36
individual religious exercise.206 Or, put differently, facially neutral laws that
the Court deems to burden religious practice – at all – are constitutionally
problematic if they aim to endorse secular activity without equally endorsing
religious activity.207
As proponents of this line of cases have argued, for example, attempts to

“sanitize religion from the public square” out of a “misguided reverence to
neutrality” are unconstitutional on their face, as “secularism is not
neutrality.”208 In this way, policies such as those that would restrict Coach
Kennedy’s prayer, exclude Bangor Christian Schools and Temple Academy
from Maine’s educational funding program, or fail to provide playground
materials to church-affiliated schools, were not “neutral” because they
“allowed secular exceptions while excluding [a party’s] religious
expression.”209 Those who disagree with this neutrality-as-secular approach
have decried this “secularization of public education” as troubling, claiming
that public schools have thus “chosen to pretend that religion does not exist”
– a choice that, on their telling, is a “lesson[] about religion” and is therefore
not “neutral.”210
Some also have labeled this approach one of “equality”: that while neutrality
requires evenhandedness by the government, equality reframes the dialogue
to focus on the protection of certain religious groups from discrimination.211
Notably, however, this “equity” frame has generally been discussed through
the lens of protecting religious minorities – not the largely Christian, largely
White parties in the religious-schools cases. Others still have argued that the
Court has increasingly endorsed, particularly in its aid to religious schools
cases, a view of “substantive” or “incentive” neutrality.212 Under this frame of
206
See, e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam).
207
See Steve Vladeck, The Most Favored Right: COVID, The Supreme Court, and the
(New) Free Exercise Clause, 15 N.Y.U. J. L. & Liberty 699, 703 (2022).
208
Mallory B. Rechtenbach, Personal Foul-Enroachment: How Kennedy v. Bremerton
School District Blurs the Line Between Government Endorsement of Religion and Private
Religious Expression, 35 Regent U. L. Rev. 295 (2023).
209
Kayla A. Toney & Stephanie N. Taub, A Cord of Three Strands: How Kennedy v.
Bremerton School District Changed Free Exercise, Establishment, and Free Speech Clause
Doctrine, 24 Fed. Soc. Rev. 2, 4 (2023).
210
Michael McConnell, Neutrality Under the Religion Clauses, 81 Nw. U. L. Rev. 146,
162-63 (1987).
211
See, e.g., Nelson Tebbe, Free Exercise and the Problem of Symmetry, 56 Hastings
L.J. 799, 711-12 (2005).
212
See, e.g., Thomas C. Berg & Douglas Laycock, Espinoza, Government Funding, and

37
neutrality, an interpretation of the Religion Clauses would require

government to examine the extent to which a state action would encourage
or discourage religious belief or exercise – government must, then, provide
equal and neutral “incentives with respect to religion.”213 This squares directly
with cases like Zelman, which emphasized that the charter-funding program
contained “no financial incentives that skew the program toward religious
schools,” meaning it did not violate the Religion Clauses. 214 Notably,
however, the Court has held firm to its belief that this approach actually best
maintains formal neutrality – for example, in its aid regimes, the existence of
private choice and facial neutrality have allowed such benefits to survive
even if "used to proselytize.”215
In this way, the Court in its religious-schools cases has variously endorsed
“neutrality” in both degree and type – and has moved toward an increasingly
skeptical view of “neutrality” in government programs. To the extent the
Court still values “neutrality,” it has moved away from the view that
neutrality is tantamount to secularism and toward the view that secularism is
itself a non-neutral assault on religion.216 Or, put differently, an interrogation
into whether a law or state action is “neutral” to survive constitutional
scrutiny requires an assessment of whether and how such a law may burden,
even if incidentally, the religious preferences of state officials. In tandem
with the Court’s turn toward Free Exercise supremacy, this view of neutrality
has decidedly put a thumb on the scale in favor of religious exercise.217 Indeed,
the Court has moved past neutrality and balance toward a view of the Religion
Clauses as instead primarily fostering religious equality – “expanding the
Religious Choice, 35 J.L. & Religion 361, 371-73 (2020); see also James R. Beattie, Jr.,
Taking Liberalism and Religious Liberty Seriously: Shifting Orur Notion of Toleration From
Locke to Mill, 43 Cath. Law. 367, 375 (2004) (“substantive neutrality” means a law must be
implemented neutrally).
213
Id. at 372 (emphasis added).
214
Zelman, 536 U.S. at 63.
215
Frank S. Ravitch, Rights and the Religion Clauses, 3 Duke J. Const. L. & Pub. Pol’y
91, 102 (2008).
216
See, e,g., Gerard V. Bradley, The Death and Resurrection of Establishment Doctrine,
61 Duq. L. Rev. 1, 6 (2023) (calling secularism the once-“beating heart of Lemon” and the
Court’s perception of it as the “dark protagonist of the piece”).
217
See, e.g., Luke Boso, Reliigous Liberty, Discriminatory Intent, and the Conservative
Constitution, 2023 Utah L. Rev. 1023, 1023 (2023) (“noting the “favorable treatment that
Christian claimants [now] receive under today’s religiously neutral and generally applicable”
doctrine).

38
space for religious to flourish in private and in public more equally, more
freely, and more fully.”218
But the view and application of “neutrality” principles taken in the

affirmative-action and race-consciousness cases has taken the opposite tack.
From Bakke to Grutter, the Court embraced the idea that given the
compelling interest in student body diversity, educational institutions could
deliberately deploy non-facially neutral measures to increase racial
representation in schools. A plurality of justices in Bakke, for one, explicitly
agreed that it would likely be “impossible to arrange an affirmative-action
program in a racially neutral way and have it [be] successful,” noting that “to
get beyond racism, we must first take account of race.”219 That is to say that,
at the beginning, “neutrality” could be set aside so long as institutions had
adequately considered potentially neutral alternatives.220 And while the Court
noted favorably in Grutter, for example, that Michigan Law School would
terminate its race-conscious programming as soon as it found a neutral
alternative, it explicitly deferred to the Law School’s assessment that race-
conscious means remained necessary to achieve the diversity required to
provide the robust exchange of ideas and pluralist environment endorsed by
the Court.221
But this would begin to change as the Court moved away from the arguably
high-water marks of Bakke and Grutter. In Parents Involved, for example,
Justice Kennedy, the powerful swing vote in concurrence with the plurality,
heightened the burden of proof for school districts in their treatment of race-
neutral alternatives: the districts had not adequately proved, the Court
observed, that there was “no other way” than race-conscious admissions to
satisfy any interest in diversity.222 This burden was formalized in Fisher v.
University of Texas, where the Court applied a higher evidentiary burden than
218
John Witte, Jr. & Eric Wang, The New Fourth Era of American Religious Freedom,
74 Hastings L.J. 1813, 1848 (2023)
219
Regents of the Univ. of California v. Bakke, 438 U.S. 265, 407 (1978) (plurality op.).
220
See, e.g., Grutter v. Bollinger, 539 U.S. 306, 339 (2003) (“Narrow tailoring does not
require exhaustion of every conceivable race-neutral alternative. . . Narrow tailoring does,
however, require serious, good faith consideration of workable race-neutral alternatives that
will achieve the diversity the university seeks.”
221
Id. at 328-29, 340.
222
Parents Involved in Community Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 789
(2007) (Kennedy, J., concurring).

39
that at issue in Grutter, requiring proof that there were no workable

alternatives to race-conscious decisionmaking.223
Moreover, in Fisher, the dissenters warned of the ways in which the majority
opinion undermined what they saw as the “driving force of the Equal
Protection Clause”: namely, “racial neutrality.”224 And in doing so, the
dissenters – who would soon become the powerful conservative bloc that
would decide SFFA – rejected the idea that universities were owed deference
into when, and how, a critical mass of diverse interests could be adequately
achieved through race-neutral measures. Rather, the dissenters forecast, this
was properly framed as a “careful judicial inquiry,” one that required the
parties to carefully describe and define what a “critical mass” requires.225 The
dissenters also expressed extreme skepticism at the University of Texas’s
proffered evidence that they had adequately considered race-neutral means,
suggesting that they were not “satisfied by [UT]’s profession of its own good
faith.”226
The Court would ultimately make clear that the Equal Protection Clause
demanded absolute, formal neutrality: that the “core purpose” of the Equal
Protection Clause was to do away with all “discrimination based on race.”
Or, more specifically, that the institutions must disregard any “differences of
race” to survive constitutional review.227 And it doubled down on the idea that
deference was not to be afforded in reviewing race-conscious policies: the
programs must be “sufficiently manageable to permit judicial review,” in a
set of goals and programs “coherent” enough for the court to measure
progress.228 And in doing so, it recast Brown and its progeny, and the former
affirmative action and race-conscious schools cases, into a steady stream of
doctrine leading toward a single conclusion: only colorblindness, or formal
neutrality, could survive this searching judicial scrutiny.229
223
See Chris Chambers Goodman & Natalie Antounian, Dismantling the Master’s
House: Establishing a New Compelling Interest in Remedying Systemic Discrimination, 73
Hastings L.J. 437, 450-51 (2022)
224
Fisher v. Univ. of Texas, 576 U.S. 365, 399 (2016) (Alito, J., dissenting).
225
Id. at 401-03.
226
Id. at 434. Ruth Colker has observed that in Fisher, the “winner was not affirmative
action”: rather, the “winner was a creative, largely race-neutral work-around for a Court that
was otherwise determined to end all race-conscious affirmative action.” The White
Supremacist Constitution, 2022 Utah L. Rev. 651, 691 (2022).
227
Students for Fair Admissions v. Harvard, 600 U.S. 181, 206 (2023).
228
Id. at 214.
229
See Rachel Moran, The Unbearable Emptiness of Formalism: Autonomy, Equality,

40
As Jonathan Feingold has written, colorblindness, which has become the

“leading racial ideology on the Right,” arises out of “both the doctrinal flow
of Supreme Court cases that washed away Jim Crow and the larger flood of
changing racial ideas over the twentieth century.”230 Feingold has called the
type of neutrality endorsed by the colorblind regime “facial neutrality”:
namely, “a process that neither sees nor accounts for an applicant’s racial
identity,” a step away from “seeing race” at all.231 On the colorblind telling,
affirmative action policies that are not facially neutral violate both formal and
substantive equality principles because the state must always maintain
absolute racial neutrality in its actions.232 But, of course, this “surface
neutrality” necessarily masks underlying institutional, structural, and as-
applied discrimination: as Thomas Crocker has observed, “[t]o be blind to
race is therefore to be blind to social structure.”233 Colorblindess, in this way,
is about seeing race as only a “surface phenomenon,” one in which race and
perceptions of “merit” may be neatly disentangled.234
And the move toward absolute facial neutrality in the affirmative action cases
is, as Brandon Hasbrouck has persuasively argued, yet another example of
the Court’s “twisting [its] interpretation of the Constitution to excuse
systemic racism, and allowing the bigotry of years past to continue through
ostensibly neutral laws.”235 As Hasbrouck explains, the transition from “overt
anti-Black” decisions to “colorblind” ones in the affirmative action cases and
otherwise was particularly pernicious, as these new policies allowed white
supremacy to flourish under cover of ostensible “equality.”236 In this way,
public discrimination “is allowed to persist through the adoption of ostensibly
neutral standards that lack regard for the history of oppression that created
racial disparities along the lines of those same criteria.”237
and the Future of Affirmative Action, 100 N.C. L. Rev. 785, 828 (2022) (“The Justices have
steadfastly endorsed a principle of colorblindness [in the affirmative action cases], and there
is no reason to think that they will retreat from this position.”).
230
Jonathan Feingold, Colorblind Capture, 102 B.U. L. Rev. 1949, 1958 & n.33 (2022).
231
Id. at 1959.
232
See Thomas P. Crocker, Equal Dignity, Colorblindness, and the Future of Affirmative
Action Beyond Grutter v. Bollinger, 64 Wm. & Mary L. Rev. 1, 7-8 (2022).
233
Id. at 42.
234
Id.
235
Brandon Hasbrouck, The Antiracist Constituion, 102 B.U. L. Rev. 87, 90 (2022).
236
See generally id. at 112-16.
237
Id. at 107.

41
Others, including Angela Onwuachi-Willig, have observed that the

affirmative action cases made clear the Court’s endorsement of neutrality as
a tool to maintain white supremacy. As Onwuachi-Willig explains, the
plaintiffs in cases like Bakke and Fisher – and the Courts deciding their cases
– failed to consider the structural advantages they enjoyed and the ways in
which, as a result, affirmative action has often been viewed as a zero-sum
game.238 In this way, Brown and its progeny, by failing to discuss the “ways
that which privilege visibly and invisibly operates,” the Court had swept
under the rug the structures of racism that propped up societal institutions.239
The Court’s view, then, is that race and racism are consciously perceived
rather than socially constructed and pervasively reinforced, undermining the
cumulative, generational, and intersectional experiences of Black and brown
individuals.240 Or, put differently, failing to shine a light on institutional
racism has inevitably led to the the legal and narrative fiction that neutral
schemes facilitate both equity and equality.
In sum: as Osamudia James has written, the Court has in its affirmative action
jurisprudence worked diligently to uphold facially neutral laws even as they
have a disparate impact on minority groups – and struck deliberately race-
conscious policies meant to remedy persistent racial inequality.241 In this way,
in the context of race-conscious admissions and decisionmaking in schools,
the Court has persistently, and increasingly, clung to a view of facial and
formal neutrality that rejects entirely an impact or substantive analysis. This
“colorblind” view of neutrality stands for the proposition, then, that state
action can only be fairly and equally applied if it utterly omits race from the
equation. This is underscored, of course, by recent attempts from the same
conservative bloc to target other arguably race-conscious features of
education, from the teaching of accurate racial history to the false flag
campaign against what has been termed “critical race theory.”
238
See Angela Onwuachi-Willig, Reconceptualizing the Harms of Discrimination: How
Brown v. Board of Education Helped to Further White Supremacy, 105 Va. L. Rev. 343
(2019).
239
Id.
240
See Andre J. Washington, Race-Based Admissions Are Meritocratic Admissions, 83
U. Pitt. L. Rev. 1, 3-4 (2022); see also Maria M. Lewis, et al., The Politicization of Education
Law and the Implications for Re-Envisioning the Law School Curriculum for Racial Justice,
24 Rutgers Race & L. Rev. 1, 8-9 (2022) (“The legal arguments against race-conscious
admissions policies over the last fifty years rest on the assumption that beucase we live in a
post-racial, ‘color-evasive’ society, the consideration of race in admissions is unnecessary
and fundamentally violates principles of merit, fairness, and equality.”).
241
See Osamudia James, Superior Status: Relational Obstacles in the Law to Racial
Justice and LGBTQ Equality, 63 B.C. L. Rev. 199, 242 (2022).

42
This “de-racing” the schools stands in stark contrast to the Court’s creeping
views on religious exercise in public schooling. To the contrary. Attempts to
“de-religion” schooling – whether through solely-secular funding programs,
the removal of public, official prayer in schools, or otherwise – have, as
discussed above, been derided as discriminatory because of the burden they
pose to the religious. This “burden” analysis, of course, is utterly absent from
the Court’s assessment of race-conscious policies: the impact to Black and
brown students glossed over.
B. “Discrimination” and “Minorities”
Alongside this inverted set of doctrinal tracks and competing views of

“neutrality” of race and religion in schools has also emerged a new view on
the “minority” interest being protected by the Court. As this Section
describes, perhaps the Court once – both explicitly and implicitly – carved
out space for legal safeguards of racial minorities in its education
jurisprudence, it has shrunk that space dramatically in the past two decades,
and particularly in the past five years. More, it has repositioned the interests
of racial minorities as no longer needing this specific type of protection,
particularly in the “colorblind,” post-racial society envisioned by those at
One First Street.
At the same time, the Court has worked assiduously to resituate the interests
of certain religious groups as in dire need of protection from the judiciary. In
this telling, sectarian interest is under constantly attack by a secular state
seeking to erase private religious exercise entirely. Notably, of course, the
interests actually protected in the Court’s jurisprudence, however, have been
those of white Christian evangelicals: while no religious plaintiff in the
Warren Court era belonged to a mainstream Christian religion, the Roberts
Court has virtually never in its education cases applied religious-freedom
doctrine to non-Christian interests.242 To the contrary: in its non-education
cases, it has routinely denied non-Christian religious interests. In 2019, for
example, the Court permitted the state of Alabama to execute a Muslim man
without his religious advisor present, noting Alabama’s practice that allowed
only the state’s Christian chaplain to be present in the execution chamber. As
242
Asma T. Uddin, Religious Liberty Interest Convergence, 64 Wm. & Mary L. Rev. 83,
126 (2022).

43
the Court of Appeals recognized, if the prisoner “were a Christian, he would

have a profound benefit; because he is a Muslim, he is denied that benefit.”243
And just one year earlier, the Court upheld then-President Trump’s policy
banning people from Muslim-majority nations from entering the United
States, doing so despite Trump’s proclamations that the plan deliberately
aimed for a “total and complete shutdown of Muslims entering the United
States.”244 The Black and brown students who may benefit from race-
conscious policies, then, are the threats – and the Coach Kennedys of the
world, the threatened.
This repositioning, aided significantly in its efforts by the Court, has both
been part of and in its own accord has spurred the rise of dueling movements
aiming to define who continues to count as a “minority” in modern America.
On one hand, primarily Left-leaning activists have continued to sound the
bell for racial equality, arguing that institutional and structural racial barriers,
the vestiges of slavery, and persistent racial achievement and wealth gaps
mean that “racism” is all but a thing of the past. In this telling, cases like
SFFA sound in the register of denial, a rejection of racial realities. More,
cases like Kennedy and Carson are creeping proof of the Court’s embrace of
anti-equity ideals, endorsements of a brand of Christian whiteness that not
only takes priority over the interests of Black Americans but also itself is a
threat to racial equality.
On the other hand, primarily right-leaning, religious advocates have framed

the critical interest as one of avoiding “religious discrimination” – or
“discrimination against expressions of faith.”245 Religious people and
organizations have in this way made their claim clear: “Christians are being
persecuted in America,” one group has written,246 and former President Trump
on multiple occasions made claims similar to one from late 2023, that
243
Dunn v. Ray, 588 U.S. ___ (2019).
244
Trump v. Hawaii, 585 U.S. __ (2018).
245
Sarah Perry and Jonathan Butcher, With Carson v. Makin, The Supreme Court Closed
the Book on Religious Discrimination in School Choice, Heritage Found. (Sept. 2, 2022),
https://www.heritage.org/education/report/carson-v-makin-the-supreme-court-closed-the-
book-religious-discrimination-school.
246
William Wolfe, Yes, Christians Are Being Persecuted in America. Here’s How We
Can Respond, Standing For Freedom Center (July 12, 2022),
https://www.standingforfreedom.com/2022/07/yes-christians-are-being-persecuted-in-
america-heres-how-we-can-respond/.

44
“Americans of faith are being persecuted like nothing this nation has ever
seen before.”247 For his part, Justice Samuel Alito claimed in 2020 that
“religious liberty is fast becoming a disfavored right” in America. 248 As of
2023, for example, most White evangelicals said that Christians are regularly
discriminated against – compared with only 39 percent who believed
LGBTQIA+ individuals faced discrimination.249 And half of all Americans,
including 75 percent of Republicans and 80 percent of White evangelicals,
said they believe that discrimination against Christians is as significant a
problem as discrimination against racial minorities, particularly Black
Americans.250
And these claims have skyrocketed as evangelical morality increasingly

conflicts with changing and rapidly progressing cultural mores on abortion,
gay rights, sexual and gender identity, and the like.251 The Court’s recent
religious-schools cases, then, are a bulwark against the “progressive left’s”
forceful vision of “how society ought to look and function”: a critical
safeguard for individual expression of religious ideas and moral beliefs.252
And in its non-education cases as well, the Court has explicitly elevated the
interests of religious preference beyond anti-discrimination mandates – and
forbid any interrogation into the sincerity or extent of such religious beliefs.253
247
Angelo Fichera, Biden’s Christian ‘Persecution’? We Assess Trump’s Recent Claims,
N.Y. Times (Dec. 29, 2023, updated Jan. 2, 2024),
https://www.nytimes.com/2023/12/29/us/politics/trump-biden-christianity.html.
248
Samuel Alito, J., Keynote Address at Fed. Soc. Nat’l Lawyers Conv. (Nov. 12, 2020)
(transcript available at https://www.rev.com/blog/transcripts/supreme-court-justice-samuel-
alito-speechtranscript-to-federalist-society).
249
Daniel A. Cox, Why Most Evangelicals Say They Face ‘A Lot’ of Discrimination,
Survey Center on American Life (Sept. 7, 2023),
https://www.americansurveycenter.org/newsletter/why-most-evangelicals-say-they-face-a-
lot-of-discrimination/.
250
Emma Green, Most American Christians Believe They’re Victims of Discrimination,
The Atlantic (June 30, 2016), https://www.theatlantic.com/politics/archive/2016/06/the-
christians-who-believe-theyre-being-persecuted-in-america/488468/.
251
See Alan Noble, The Evangelical Persecution Complex, The Atlantic (Aug. 4, 2014),
https://www.theatlantic.com/national/archive/2014/08/the-evangelical-persecution-
complex/375506/.
252
See Patrick M. Garry, Establishing Religious Freedom, Law & Liberty (July 5, 2022),
https://lawliberty.org/establishing-religious-freedom/.
253
See, e.g., Masterpiece Cakeshop v. Colorado Civil Rts. Comm’n, 584 U.S. __ (2018)
(permitting a business to discriminate against gay couples based on the owner’s religious
beliefs given the “hostility” against religion demonstrated by reviewing board).

45
This all has coincided with a similarly dramatic shift in the racial makeup of
America. Last decade marked the first time in American history that “white
racial dominance” was on the demographic decline.254 And indeed, White
Americans are expected to be a minority group within the next two decades.255
Similarly, the numbers of Christians in America have declined at a rapid clip:
while, as of now, 64 percent of the population identifies as Christian,
Christians are projected to be a minority group by 2070.256
In this way, then, the Court’s actions have acted to protect the Christian right
from “perceived victimization” by shifting progressive mores – and the
emergence of a non-White, non-Christian majority.257 More, the Court has
ignored the historic connections betweens Christian nationalism and racial
discrimination: as Stephen Feldman has explained, evangelical Christian
efforts post-Brown, led by nationalist groups including the Ku Klux Klan,
“provided the white nationalist movement with a religious zeal as it aimed
for an apocalyptic transformation of the United States—the elimination of all
people of color, Jewish Americans, and other outsiders.”258 And much has
been made of the ways in which “church schools” or “segregation academies”
were a direct response to Brown v. Board’s desegregation mandates – a way
to siphon public funding in the name of religion to preserve White separation.
In this way, the racial minority rhetoric of Brown v. Board and the early
affirmative action cases has been appropriated by the religious right to claim
their own mantle of “victimhood”259 as it positions itself as a new minority.
254
Asma T. Uddin, Religious Liberty Interest Convergence, 64 Wm. & Mary L. Rev. 83,
90 (2022) (citing Pew Rsch. Ctr., Modern Immigration Wave Brings 59 Million to U.S.,
Driving Population Growth and Change Through 2065: Views of Immigration’s Impact on
U.S. Society Mixed 23-27 (2015)).
255
Id. (citing Pew Rsch. Ctr., supra note __, at 27).
256
Pew Rsch. Ctr., Modeling the Future of Religion in America (Sept. 13, 2022),
https://www.pewresearch.org/religion/2022/09/13/modeling-the-future-of-religion-in-
america/.
257
See Luke A. Boso, Religious Liberty, Discriminatory Intent, and the Conservative
Constitution, 2023 Utah L. Rev. 1023, 1027-31 (2023).
258
Stephen Feldman, White Christian Nationalism Enters the Mainstream: Implications
for the Roberts Court and Religious Freedom, 53 Seton Hall L. Rev. 667, 687 (2023).
259
For a discussion of the rise of white Christian nationalism and the ways in which it in
many ways is responsive to America’s liberalization since the Brown era, see Linda
Greenhouse, Victimhood and Vengeance, N.Y. Rev. of Books (Feb. 9, 2023),

46
And this, of course, is not isolated to the Court’s schools cases. This shifting
of “minority” status, recognition, and legal protection toward evangelical
Christians and away from other demographic minorities, including racial
minorities, LGBTQIA+ individuals, and women, echoes through the Court’s
recent jurisprudence not simply in schooling cases, but across doctrines.
This also has arisen in the context of women’s rights and reproductive rights.
For example, the Court in 2014’s Burwell v. Hobby Lobby Stores held that
the for-profit corporation Hobby Lobby, a Christian-oriented chain of craft
stores, could deny, on religious grounds, health coverage of contraception to
which Hobby Lobby employees were otherwise entitled.260 The Court held
that Hobby Lobby counted as a “person” who could be subject to the religious
protections of the Religious Freedom Restoration Act, and consequently
concurred that it could not force Hobby Lobby to “perform an act that . . . has
the effect of enabling or facilitating the commission of an immoral act by
another.”261 More, the Court rejected the Department of Health and Human
Services’ justifications for the law – “public health” and “gender equality”
for women – finding these interests as “too broadly framed.”262 In this way,
as Justice Ginsburg noted in dissent, the Court’s opinion constructed an
obvious hierarchy: “In the Court’s view, RFRA demands accommodation of
a for-profit corporatin’s religious beliefs no matter the impact that
accommodation may have on third parties who do not share the corporation
owners’ religious faith—in these case, thousands of women employed by
Hobby Lobby.”263
https://www.nybooks.com/articles/2023/02/09/victimhood-and-vengeance-the-flag-and-
the-cross/.
260
573 U.S. 682 (2014). The owners’ religious objections to the contraception mandate
included their “sincere belief that life begins at conception,” meaning that they could not
endorse insurance coverage of methods of birth control that “may result in the destruction of
an embryo.” Id. at 720.
261
Id. at 724.
262
Id. at 725-30.
263
Id. at 740 (Ginsburg, J., dissenting). Ginsburg also argued that the majority’s position
could be extended beyond the contraceptive context, asking, for example, if the Court’s
decision could be applied to a refusal to serve Black patrons, id. at 769-70, a position the
majority rejected as implausible, see id. at 733 (majority op.) (“The principal dissent raises
the possibility that discrimination in hiring, for example on the basis of race, might be
cloaked as religious practice to escape legal sanction. . . Our decision today provides no such
shield.”).

47
Similarly, Melissa Murray and Kate Shaw have also written about the ways
in which the Court’s 2022 decision in Dobbs v. Jackson Women’s Heath
Organization,264 overturning Roe v. Wade, positioned the Court “as the hero—
the Knights Templar, if you will, vindicating the historic injustices that Roe
and [Planned Parenthood v.] Casey wrought,” in doing so “equating its work
with the work of the Court in Brown v. Board of Education,” and claiming its
work was done to “correct the injustices done to racial minorities.”265
So too have the Roberts Court’s cases concerning LGBTQIA+ rights

illustrated the primacy of religion. In 2018’s Masterpiece Cakeshop v.
Colorado Civil Rights Commission, for example, the Court held that the
Colorado Civil Rights Commission had not provided baker Jack Phillips with
neutral treatment when evaluating whether Phillips had discriminated in
violation of Colorado law against a gay couple seeking wedding cake
services.266 The Commission, the Court held, exhibited “clear and
impermissible hostility toward [Phillips’] sincere religious beliefs” when it
described religion as a “despicable piece of rhetoric that people can use” to
discriminate against minority groups.267
As it had in its religious-schools cases, the Court positioned Phillips as the

victim of Free Exercise discrimination, observing that the Commission “was
obliged under the Free Exercise Clause to proceed in a manner neutral
toward” Phillips’ beliefs.268 Again in dissent, Justice Ginsburg argued that the
Court had again elevated Phillips’ interests in protection of his religious
beliefs over those of the gay couple’s against discrimination: “I see no reason
why the comments of one or two Commissioners,” she wrote, “should be
taken to overcome Phillips’ refusal to sell a wedding cake to [the couple].”269
264
142 S. Ct. 2228 (2022).
265
Dobbs and Democracy, 137 Harv. L. Rev. 728, 800-02 (2024).
266
584 U.S. 617 (2018).
267
Id. at 635.
268
Id. at 638.
269
Id. at 673 (Ginsburg, J., dissenting). Notably, Jeremiah Ho has also described the
ways in which the Masterpiece Cakeshop couple was even further minoritized, noting that
the two men “did not share many of the other normalized, respectable features of the
Obergefell [v. Hodges] plaintiffs,” as they “flaunted their sexuality in public,” “played with
androgyny and avoided wearing conventional clothing to court appearances,” and could be
perceived as “more queer” than “gay.” Jeremiah A. Ho, Queer Sacrifice in Masterpiece
Cakeshop, 31 Yale J.L. & Feminism 249, 287-88 (2020).

48
In this way, as Jeremiah Ho has argued, the Court, in effectively endorsing

“religion as a means to challenge[]” and stall “political progress for sexual
minorities” reinforced “a discriminatory status quo that is partly validated
and perpetuated by religious freedom [that] has received heightened legal
protection.”270
I hope to illustrate here that the Court’s treatment of race and religion in the
schools context – and its perhaps inverting notions of both discrimination and
minority status – is not isolated to schools alone. Rather, the Court’s
treatment of schools over the past 25 years has, as perhaps it always has,
pantomimed its shifting values framework in the theater of the classroom –
the “the most significant site of constitutional interpretation within the
nation’s history.”271 Or, put differently, as Caroline Mala Corbin has written,
the Roberts Court has not solely in its schools jurisprudence but also across
its constitutional doctrine consistently prioritized the right to practice one’s
faith “over other equally critical ones, most notably the right to equal
treatment.”272
IV. CONCLUSION
I hope with this reflection to raise one central point: that peering into the
Court’s affirmative-action turn is only half the story. SFFA and its
endorsement of colorblindness is only one side of the tale of the Roberts
Court’s turn not only in its education cases but also in its broader
jurisprudential views on who, in modern America, is the real “minority.” Put
differently, a robust understanding of precisely what has animated the Court’s
retreat from race-consciousness, and from protection for racial minorities,
requires a concomitant look at another group the Court has carved out
increasing protection for.
Indeed, over the past quarter century, the Court has undertaken simultaneous
but antiparallel movements in its race- and religion-schools cases. While it
once (at least rhetorically)273 carved out protection for racial minorities – and
270
Ho, supra note __, at 302-03.
271
Justin Driver, The Schoolhouse Gate (2021).
272
See Carolina Mala Corbin, Religious Liberty for All? A Religious Right to Abortion,
2023 Wisc. L. Rev. 475, 476 (2023).
273
For a discussion of the Court’s rhetoric surrounding the relationship between

49
endorsed interventions ostensibly aimed at pluralism, social mobility for

minorities, and race-conscious recognition – it has moved away from racial
awareness and toward a pervasive theory of colorblindness and racial
neutrality that seeks to erase altogether race itself. At the same time, the Court
has turned away from its once-robust demands, under the auspices of the
Establishment Clause, that the government entirely absent itself from religion
and act secularly in the name of avoiding religious indoctrination, undue
coercion of young minds, and endorsement of any one religious identity.
Instead, it has flipped the doctrinal and narrative framework, ushering in an
era of Free Exercise supremacy, in which the First Amendment operates not
to protect from indoctrination but to preserve religious exercise by state
officials even in the public sphere.
More, this has caused the Court to embrace an emergent and shifting set of
views: who counts as a “minority” subject to persecution, what expression or
identity deserves judicial protection, and to what extent the state should
intervene or abstain to advance the needs of these constituencies. As this
reflection argues, the balance in each of these inquiries, particularly in the
Court’s schools cases, has tipped away from racial minorities and, in dramatic
fashion, toward the Court’s “new minority”: white, evangelical Christians.
education and democracy, including its view on race, pluralism, and values inculcation in
schools, see generally Caitlin Millat, The Education-Democracy Nexus and Educational
Subordination, 111 Geo. L.J. 530 (2023).

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(forthcoming, American Journal of Law and Equality)

RACE, RELIGION, AND THE ANTIPARALLEL

On June 29, 2023, the Supreme Court issued a monumental decision in

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exercise in an education setting; and adhere to an ideal that because students

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I. RACE AND RELIGION: ANTIPARALLEL TRACKS IN THE COURT’S EDUCATION

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schools,13 and recruitment of student-athletes14; and a hodgepodge of other,

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But the Court’s religious-schools jurisprudence has not always been so

1. The First Fifty Years: The Religion Clauses in the Court

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case incorporating the Establishment Clause to the states,29 making clear in

Neither a state nor the Federal Government can set up

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The Court would apply these principles – the commitment to governmental

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problem absent evidence of coercion.49

Challenges to aid schemes like those in Everson also began to percolate in

Synthesizing the Court’s prior precedents, the Lemon Court articulated a

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funding of parochial schools, it violated Lemon’s first prong.56 The Court

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no legitimate secular purpose62; a Louisiana statute forbidding the teaching

In the 20th century, then, the Court’s jurisprudence centered on several

2. The New Millennium: Reshaping Religious Schools Doctrine

But none of these rhetorical and doctrinal principles – a commitment to a

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jurisprudence67 and replaced it with an emergent framework dedicated to an

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average of 1.6 groups in support between 1952-67; 8.8 between 1968-83;

In 2000’s Mitchell v. Helms, for example, the Court considered a Louisiana

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action.”78 And no indoctrination of this kind could occur, the Court

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organization. Or, put differently, this framework of neturality now meant

The notion of parental choice as a cleanser for potential Establishment

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significant prior religious-schools precedents, focusing only on its recent

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In 2017, the Court considered the constitutionality of the Missouri Scrap

In deciding Trinity, the Court looked not to Lemon, Agostini, Schempp, or

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which [it was] otherwise fully qualified.”102 Excluding Trinity Lutheran

As the dissenters observed, the Trinity Lutheran majority’s myopic focus on

Doctrinally, the implications for Religious Clause precedent, particularly in

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blow to the Establishment Clause”: it both “requires the government to give

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Unsurprisingly, the Court relied on Trinity Lutheran and Espinoza, finding

Carson v. Makin’s practical and doctrinal implications were, too, significant.

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