SCOTUS considers whether public tuition program for private schools can exclude religious ones
The U.S. Supreme Court’s latest case about the Constitution’s religion clauses hails from Maine, where the state has paid tuition to send some students to private schools for more than a century but for the last 40 years has limited the choices to “nonsectarian” schools.
The case, Carson v. Makin, holds implications well beyond Maine and Vermont, the other state with a long tradition of towns without public high schools paying tuition for students to attend private schools.
“The case is enormously important,” says Michael E. Bindas, a senior attorney with the Institute for Justice, an Arlington, Virginia-based libertarian public interest legal organization that brought the case on behalf of parents seeking public tuition for their children to attend religious schools excluded from the Maine program. A victory for such parents would mean that “whatever legal cloud that remains over school choice programs, that cloud will be lifted.”
The Maine case comes on the heels of similar cases decided by the Supreme Court in recent years from Montana and Missouri. The decisions in those cases drew a distinction between the religious status of a school or church seeking to partake in a state program and the religious uses of state aid.
In 2020, in Espinoza v. Montana Department of Revenue, the high court held that a Montana state constitutional provision barring aid to religious schools discriminated against such schools and parents who wished to use scholarships stemming from a modest state tax credit program aimed at promoting private school choice.
“This case … turns expressly on religious status and not religious use,” Chief Justice John G. Roberts Jr. wrote for the majority.
“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The conclusion in Espinoza flowed, the chief justice said, from another recent ruling of the court, Trinity Lutheran Church of Columbia v. Comer. In that 2017 decision, the court held that the state of Missouri’s exclusion of a church and religious school from a program to refurbish playgrounds discriminated against religious status in violation of the First Amendment’s guarantee of free exercise of religion.
Roberts acknowledged in his Espinoza opinion that some of his colleagues “have questioned whether there is a meaningful distinction between discrimination based on [religious] use or conduct and that based on [religious] status.”
Justice Neil M. Gorsuch, who joined the majorities in the Missouri and Montana cases, wrote concurrences in each suggesting there was not a significant difference for purposes of applying strict scrutiny under the free exercise clause.
“I was not sure about characterizing the state’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the state’s discrimination here that way,” Gorsuch wrote in his Espinoza concurrence.
When it comes to a condition on a public benefit that discriminates against the free exercise of religion, Gorsuch said, “calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.”
A 19th-century school choice program
The new case from Maine gives the court the opportunity to resolve whether there is any constitutional significance to the distinction.
The justices on Dec. 8 will consider Maine’s exclusion of “sectarian” religious schools from its distinctive program in which towns without their own high schools pay the tuition for students to attend public schools in other communities or private schools.
The “tuitioning” program was born in the 1870s, and for many years Maine allowed religious private schools of all manner to participate. In 1980, the state attorney general issued an opinion concluding that the inclusion of religious schools in the tuitioning program violated the First Amendment’s establishment clause. The legislature then amended the program to limit private school participation to “nonsectarian” schools. Those that promote a “faith or belief system” are excluded.
Today, more than half of the state’s 260 school administrative units, which are akin to school districts, do not operate a high school. Of the state’s 180,000 public school students, some 4,500 attend private schools at town expense.
“The tuition program has worked fine for many people in Maine who have been able to take advantage of it and for the private schools that have been receiving students under it,” says John Maddaus, an associate professor emeritus at the University of Maine in Orono, whose research on the practice of town tuitioning is cited in legal briefs in the case.
The Supreme Court’s recent support for free exercise claims prompted some Maine parents of children in religious schools excluded from the tuition program to test the status quo.
Maine’s exclusion of most religious schools has been challenged by two families: David and Amy Carson, whose daughter attended Bangor Christian Schools, and Troy and Angela Nelson, who have sought to have their two children attend another Christian school, Temple Academy in Waterville, Maine, at state expense.
The Carsons and Nelsons live in Maine towns that don’t operate a public high school. They say parents like them should be able to choose religious schools and have their tuition paid by their towns.
“If it’s an approved, accredited school, it shouldn’t make a difference to the state,” says David Carson, whose daughter, Olivia, recently graduated from Bangor Christian Schools, where her parents paid the tuition.
The Boston-based 1st U.S. Circuit Court of Appeals ruling in the Maine case in 2020 focused on the state’s bar on a religious “use” of money under the tuition program.
“We conclude that, given the baseline that Maine has set through the benefit provided by the tuition assistance program, the plaintiffs in seeking publicly funded ‘biblically integrated’ or religiously ‘intertwined’ education are not seeking ‘equal access’ to the benefit that Maine makes available to all others—namely, the free benefits of a public education,” the appeals court said.
Bindas, whose organization has pushed for private school choice for years, says “Maine has been discriminating against parents who desire a religious education (for their children) and religious schools for four decades.”
The state, meanwhile, argues that the private school tuition program is merely one part of its system of providing a public education of high standards to a “lightly populated, predominantly rural state.”
“In excluding sectarian schools, Maine is declining to fund a single explicitly religious use: an education designed to proselytize and inculcate children with a particular faith,” the state says in its merits brief.
Some religious schools approved
Maine has, at times, approved boarding schools, including some out of state, with religious traditions such as chapel and the teaching of “spiritual values” for inclusion in the tuition program.
“To be clear, religious organizations that are willing to provide education comparable to a public education are eligible to receive public funds through Maine’s tuition program,” the state says in its brief. (State officials declined interview requests.)
The challengers contend that “an Islamic school, Jewish day school, or Catholic parish school would not fare as well; they are excluded.”
Bindas says that “the fact that you have government regulators making these intrusive inquiries into the religious beliefs and curricula of schools and deciding who is sufficiently irreligious to participate or too religious to participate is problematic under the free exercise clause.”
Michael W. McConnell, a former federal appeals court judge, a religious liberty scholar, and a professor at Stanford Law School, agrees with that.
“Maine allows families to choose a school, including some fairly religious schools, but not schools it deems excessively religious,” says McConnell, who filed an amicus brief in support of the challengers. “That is exactly the kind of discrimination between religious faiths and against religion in general that I think the Supreme Court has indicated pretty clearly violates the First Amendment.”
Both Bangor Christian Schools and Temple Academy, the religious school preferred by the other family in the case, have policies that bar LGBTQ people from employment. Maine argues in its brief that the schools’ policies would likely violate the state’s anti-discrimination law.
Both the state and President Joe Biden’s administration argue that because it is unclear at best that those two schools would participate in the program, there are serious questions of standing for the parents challenging the religious exclusion. But Martha Boone, the principal of Bangor Christian, says her school would participate as long as it could be exempt from the state’s nondiscrimination law.
Derek W. Black, a professor at the University of South Carolina School of Law who co-wrote an amicus brief in support of Maine by education and constitutional law scholars, says a ruling against the state could pave the way for more state aid to religious schools nationally and even to religious-sponsored public charter schools.
“This is part of what Maine has been doing for over a century to discharge its basic constitutional obligation to provide a public education to students,” he says. “You now have people who know very little about Maine trying to transform it into something that they can leverage into a national agenda about religion.”