Excerpted From: Vania Blaiklock, The Unintended Consequences of the Court's Religious Freedom Revolution: A History of White Supremacy and Private Christian Church Schools, 117 Northwestern University Law Review Online 46 (September 26, 2022) (175 Footnotes) (Full Document)



VaniaBlaiklockPrivate religious schools are on a winning streak at the Supreme Court. Although the question of the State's role in funding private religious schools has a long history in Supreme Court jurisprudence, the Court has recently moved toward a strict “no discrimination” approach, holding that states which fund private schools cannot discriminate against religious schools when it comes to funding. In its third and most recent case on the subject, Carson ex rel. O.C. v. Makin, the Court has indicated, just how far it is willing to take this “no discrimination” approach to providing public aid to private religious schools.

The battle lines in these sorts of cases are seemingly clear: whereas some criticize the approach as a perversion of the Court's First Amendment religious aid jurisprudence, school choice and religious freedom advocates have applauded the “no discrimination” approach. What both camps largely overlook, however, is an ugly underbelly in the history--the unavoidable connection between religious schools and systemic racism. This Essay fills that gap.

Church schools are rooted in the history of desegregation and the public response to Brown v. Board of Education. By focusing primarily on whether a state discriminates based on religion, the Court has overlooked the role that church schools play in maintaining white supremacy. Thus, in expanding state aid to private church schools to prevent religious discrimination, the Court potentially empowers state-funded racial discrimination, perhaps without even knowing it is doing so.

After Brown, Southern states immediately reorganized their schools to avoid mandatory integration, a strategy that some scholars have called “Massive Resistance.” Part of these efforts included so-called “segregation academies.” Generally, studies define segregation academies as private schools founded between 1954 and 1970 in Southern states to aid white parents in avoiding integrated schools.

Scholars who study the development of segregation academies commonly conflate nonsectarian private schools with evangelical Christian schools (church schools). Some of these scholars, however, have recognized in passing that the corresponding rise of church schools alongside segregation academies does not necessarily mean that the two served the same exclusive discriminatory purpose. These scholars acknowledge the complex reasons for the rise in church schools in the 1970s and 1980s, but they do so only to highlight the role that segregation may have played in forming the politics of conservative white Christians. Thus, church schools are either mentioned as a footnote to the broader topic of segregation academies, or referenced briefly as a catalyst of the religious right movement.

But church schools require a more nuanced examination if we want to truly comprehend white supremacy's role in the use of religion as a tool to maintain the racial status quo--which becomes increasingly important as the Supreme Court continues to validate and encourage the public funding of these schools. Such a nuanced examination likely has not occurred because none of the religious schools implicated in the Court's recent decisions were located in Southern states. Because the history highlighting a relationship between segregation academies and church schools exists exclusively in the context of southern Massive Resistance, the Court has overlooked this link in deciding these recent non-southern cases. Nevertheless, decisions from the Supreme Court apply nationally and will apply to Southern states--so this history is relevant.

This Essay supplements the story by situating the Court's recent trilogy of private religious school funding cases within the history of southern church schools and white supremacy. Throughout this Essay, I argue that southern church schools, even if created for a purpose encompassing more than the maintenance of white supremacy, share in that purpose by their historical connection to segregation academies and their modern preservation of mostly white spaces. Segregation academies and southern church schools share a fundamental link: they demonstrate the ability of white supremacy to use religion as a tool to preserve racism and the status quo in America.

By highlighting the relationship between white supremacy and southern church schools, this Essay warns of potential unintended consequences of the Court's recent expansive religious freedom revolution. Part I describes the history and development of segregation academies in the South, as well as the creation of church schools in relationship to segregation academies. In this Part, I argue that modern church schools, whether explicitly started as segregation academies or not, tend to incorporate the vestiges of segregation by inculcating students with cultural values rooted in white supremacy. This can manifest in a variety of ways, such as in providing a mostly segregated education, teaching a curriculum that focuses on American nationalism and exceptionalism rooted in whiteness, or both.

Part II bridges segregation academies and church schools by arguing that through their embrace of the language of individual rights, segregationists maintained white supremacy through more implicit means. Drawing on Critical Race Theory methodology, I demonstrate this implicit embrace of white supremacy by applying the lens of racial realism and strategic racism to analyze the desegregation of southern church schools. Central to this analysis is my claim that church schools are uniquely situated, based on First Amendment protections, to preserve white supremacy without serious federal oversight. This strategy of using church schools to maintain white supremacy will likely be more successful under the current Supreme Court's religious aid jurisprudence.

Importantly, this Essay does not argue that these schools should not exist. Church schools seek to teach values thought to be rooted in Christian faith and doctrine. As such, nothing in this Essay suggests that church schools are inherently racist or are hiding behind a religious smokescreen. Instead, this Essay serves as a reminder that judicial decisions have national--and often unacknowledged--consequences for marginalized groups.

[. . .]

The relationship between contemporary church schools and white supremacy goes beyond the mere categorization of a “segregation academy.” Given that most contemporary church schools could dispute a segregation academy classification, they are uniquely situated to preserve a subtler form of white supremacy without serious criticism. These schools strategically use racial tokenism to maintain an illusion of integration. This illusion satisfies legal suspicion without being unpalatable to white supremacists desperate to keep the exclusionary nature of whiteness. The Court's religious aid jurisprudence has empowered this strategy.

The strategy of using church schools to maintain white supremacy is efficient because churches, unlike other private schools, have explicit constitutional protection under the First Amendment's religion clauses. These clauses supply a safe space for church schools to teach a curriculum glorifying the role of whiteness and dominance in American history without contradiction. Therefore, church schools continue to exist as predominately white institutions, which can teach whiteness in the classroom while also relying on the protections of the First Amendment. As a result, these schools continue to instill students with cultural values rooted in white supremacy. In Bob Jones, the Court explicitly held that the government has a “fundamental, overriding interest in eradicating racial discrimination in education.” This Essay demonstrates that the Supreme Court's new approach to public funding for religious church schools has--whether intentionally or not-- placed its interest in eradicating racial discrimination in education in a vulnerable position.

American Studies Ph.D. student, College of William & Mary. J.D., William & Mary Law School, 2018; B.S. Political Science, Lee University, 2015.

[Note: This Essay was completed before the Supreme Court released its Carson ex rel. OC v. Makin opinion on June 21, 2022. The opinion does not change any of the arguments made in the following sections and all citations have been updated to reflect the 2022 slip opinion.]