An interpretation of kennedy and carson is that the court favored free exercise, the freedom of individual believers, over dissolution. Or, as the jurist Micah Schwartzman Put the, quoting from his concise 2020 tweet, “So… the establishment clause violates the free exercise clause. This is the tweet? Sotomayor sees it the same way. In her kennedy dissenting, she argued that the court’s decision – siding with the coach – “elevates an individual’s interest in personal religious exercise, at the exact time and place of his choosing, by against society’s interest in protecting the separation of church and state, eroding protection for religious freedom for all. Again, we need to think more about why an individual’s interest trumps the interests of society at large. Free exercise replacing dissolution, one clause canceling the other, is only one case among many where the courts have recognized certain individual rights and privileges while stripping public institutions and encouraging private interest to trample any solid notion of the public good.
Public schools feature prominently in the history of Establishment Clause case law, but they are becoming less and less prominent in American society and student life. According a recent study, only 68% of Gen Z students are enrolled in a traditional public school (and 13% in public charter schools). This represents a drop in overall enrollment in public schools and a shift from public schools to charter schools, marking education’s status as a latecomer to the privatization of public assets. (Not everyone thinks that’s a bad thing.) It should be noted that Betsy DeVos, President Trump’s education secretary and longtime champion of school privatization and opponent of public schools, wrote an amicus brief in support of Coach Kennedy.
Ideally, public schools serve the public good. In theory, there are fewer barriers to entering public schools than private schools. As Chief Justice John Roberts writes in his opinion for carson“Private schools are different by definition because they are not obliged to accept all students. Public schools usually do. A history of segregation, redlining and income disparity means that not all public schools are equal. Predominantly white schools are regularly better funded than schools with predominantly students of color. Additionally, black students face arrest at a higher rate than white students, which not only criminalizes black students but is sure to make learning more difficult.