Law & Courts

Can Public Money Go to Religious Schools? A Divisive Supreme Court Case Awaits

By Mark Walsh — November 18, 2021 13 min read
The Carson family pictured outside Bangor Christian School in Bangor, Maine on Nov. 5, 2021.
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Bangor, Maine

The latest case to come before the U.S. Supreme Court on religious rights and school choice has been nearly 150 years in the making.

The justices on Dec. 8 will consider the state of Maine’s exclusion of “sectarian” religious schools from its distinctive"tuitioning” program that first took hold in the 1870s, in which towns without their own high schools pay the tuition for students to attend public schools in other communities or private schools. The consequences for private school choice and government aid to religion will likely be felt well beyond that state.

Although Maine once allowed religious private schools of all manner to participate in the program, for the last 40 years the state has excluded schools that promote “a faith or belief system,” on the basis that their inclusion would violate the U.S. Constitution’s prohibition of government establishment of religion.

But in recent years, the Supreme Court has expanded its interpretation of the First Amendment’s free exercise of religion clause. Here in Maine, that prompted parents of children in religious schools excluded from the tuition program to test this shift in the legal landscape.

David and Amy Carson, whose daughter recently graduated from Bangor Christian Schools, a small, conservative K-12 school, are among the two sets of parents whose challenge in Carson v. Makin goes before the justices on Dec. 8.

“Why discriminate against Bangor Christian or any of the other Christian schools around?” said David Carson, who owns a home-contracting business.

David and Amy Carson in a classroom at Bangor Christian Schools on Nov. 5, 2021.

The Carsons live in Glenburn, one of dozens of Maine towns that do not have a public high school and thus pay tuition for children to attend approved schools elsewhere. Their daughter, Olivia, recently graduated from the Christian school with the Carsons paying her tuition. (High school tuition is $5,700 a year.)

“This is a case about whether government can discriminate against parents simply because they desire a religious education for their children,” said Michael E. Bindas, a senior attorney with the Institute for Justice, an Arlington, Va.-based public interest legal organization that brought the case and has pushed for private school choice for years. “That kind of discrimination is not tolerated by the free exercise clause”

Maine, whose education commissioner, A. Pender Makin, is the named party on the other side of the case, takes a different view.

“This case is about public education,” state Attorney General Aaron M. Frey says in a brief. “Maine has appropriately determined that a public education should be a nonsectarian one that exposes children to diverse viewpoints, promotes tolerance and acceptance, teaches academic subjects in a religiously neutral manner, and does not promote a particular faith or belief system.”

Maine’s constitution makes public education an obligation of each town

As the Supreme Court’s conservative majority has grown in recent years, the court has been more welcoming of claims brought under the free exercise clause.

Bindas said a victory for the religious school parents in the Maine case would remove one more argument that opponents of school choice programs use when trying to convince state lawmakers not to enact programs that include religious schools.

“It will be clear that whatever legal cloud that remains over school choice programs, that cloud will be lifted,” he said.

Derek W. Black, a law professor at the University of South Carolina who co-wrote a brief in support of Maine by education and constitutional law scholars, agrees that such a ruling for the parents would be widely felt. It would lead to greater levels of state aid to religious schools and may even result in charter schools sponsored by religious organizations, he said.

“This case is so idiosyncratic, and what Maine is doing is such a basic part of state education policymaking, that the justices just don’t have any business spending time on this,” Black said.

Maine’s original state constitution, in 1820, called for “the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” The largely rural state has since then considered education to be primarily a local, rather than a state, responsibility.

For much of the 19th century, as in most of the country, that meant Maine towns operated “common schools” serving the youngest students through about age 15. Secondary education existed only through private academies serving a small proportion of older students. In 1873, the Maine legislature enacted a law to encourage free high schools, which offered some state support to towns that built their own schools, but also allowed for private academies to turn their buildings over to the towns or, for the first time, for towns to pay tuition to the academies for their students.

In 1903, lawmakers passed a measure to ensure universal secondary education in the state. The law went further than the 1873 statute by requiring towns without their own high schools to pay tuition for their students to attend a secondary school somewhere else. In 1909, the legislature added the first state standards for schools receiving tuitioning students.

In the 1950s, the state created school administrative districts, or units, which went beyond town boundaries and consolidated school operations in some areas. But even today, more than half of the state’s 260 school administrative units do not operate a high school. Of the state’s 180,000 “public” school students, some 4,500 attend private schools, either through the tuition program or under a direct contract between a SAU and a private school.

“Maine has kind of gone its own way in this area of educational policy compared with the rest of the country,” said 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 exception is one of Maine’s fellow New England states, Vermont, which has also had tuitioning in towns without their own public high schools since the late 19th century. Vermont has filed a friend-of-the-court brief in support of Maine, explaining that as of 2020, 40 of its 115 school districts did not operate high schools but instead paid for students to attend public schools in other districts or approved private schools. Vermont also excludes religious schools from participation.

Unlike the 38 states, including Vermont, that have constitutional measures barring aid to religion or religious schools, Maine’s constitution contains no such provision. For many years, a small number of tuitioning students attended religious schools under the Maine program. In the 1979-80 school year, 211 students did so, according to court papers.

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 bar “sectarian” schools.

The new prohibition had an almost immediate effect.

Soon after the attorney general’s opinion, John Bapst High School, a Catholic school in Bangor that had the most state-funded students of any religious school, closed its doors. By the fall of that year, it reopened as John Bapst Memorial High School, a secular private school that continued to participate in the tuition program.

The hulking college preparatory school fills an entire block in central Bangor, and because the building has landmark status the cross atop its front edifice may not be removed.

“It’s been 40 years, and there are still people around here who think we’re a Catholic school,” said David Armistead, the head of school. About 80 percent of the school’s 510 students attend through the tuition program, while a few come from towns that do have high schools and must pay their own way, and others are international boarding students.

“We don’t have any shortage of kids who want to come here,” said Armistead. The school arranges transportation for some towns where there is a cluster of tuitioning students, while some districts provide buses.

John Bapst and the 23 other participating Maine private schools last school year received $11,950 per student in the state tuition program, a nonnegotiable figure set by the state education department.

The challengers of the exclusion of “sectarian” schools point out that Maine has approved some private schools with religious traditions or character, such as out-of-state but nearby boarding schools such as Cardigan Mountain School in Canaan, N.H.

But the out-of-state approvals tended to be for “a family here or a family there,” and the state has tightened its criteria for approving such programs, said Steven W. Bailey, the executive director of the Maine School Boards Association. Only one out-of-state school is approved this year, the Dana Hall School, in Wellesley, Mass.

Recent Supreme Court decisions prompt the legal test in Maine

Maine’s exclusion of “sectarian” schools was challenged by the Carsons and by 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 families filed their challenge after the Supreme Court ruled in a 2017 case, Trinity Lutheran Church of Columbia v. Comer, that Missouri violated the U.S. Constitution’s guarantee of free exercise of religion when it denied a church participation in a state program to improve the safety of playgrounds. The decision in that case was based on the religious status of the Lutheran school.

The high court took the same view in the 2020 decision in Espinoza v. Montana Department of Revenue , in which the court held that a state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from the aid.

Chief Justice John G. Roberts Jr., writing for the court, emphasized the religious status of the schools that would benefit from the tax-credit program, rather than any religious use of the aid. (There has been vigorous debate in the concurring and dissenting opinions of both those decisions about whether there is a significant distinction between “status” and “use.”)

In the Maine case, the U.S. Court of Appeals for the 1st Circuit, in Boston, said in an opinion last year that it was significant that Maine’s program imposes a prohibition based on religious “use” of the state aid.

“Because Maine permissibly requires public educational instruction to be nonsectarian for reasons that reflect no hostility to religion, it betrays no hostility toward religion when it imposes a use-based ‘nonsectarian’ restriction on the public funds that it makes available for the purpose of providing a substitute for the public educational instruction that is not otherwise offered,” said the opinion for a 1st Circuit panel that included retired Supreme Court Justice David H. Souter sitting by designation.

That decision was appealed to the Supreme Court by the Carson and Nelsons.

Seeking a ‘faith-based’ education for their children

In an interview in one of Bangor Christian’s classrooms, after the school day had let out, David and Amy Carson said they chose the school for Olivia because of its religious curriculum, its small size, and its strong academics. Both parents graduated from Bangor Christian themselves.

“It’s faith-based,” Amy Carson said. “It’s a college prep school. The school meets all the educational requirements and then some.”

The school has a total enrollment of 310. Olivia Carson had 21 students in her high school graduating class, and she is now thriving at Husson University in Bangor, where she studies business.

From left, Amy and Olivia Carson pictured outside Bangor Christian School in Bangor, Maine on Nov. 5, 2021.

The Carsons say they can afford the tuition, but because their town has no high school, they would not have had to pay if the exclusion of religious schools were removed.

“If it’s an approved, accredited school, it shouldn’t make a difference to the state,” David Carson said.

At Bangor Christian Schools, there is little effort to mask the conservative viewpoints it shares with its sponsor, Crosspoint Church, an evangelical congregation whose building is across the parking lot from the two small buildings that make up the school campus.

Martha Boone, the principal of Bangor Christian Schools, led a reporter on a tour of the school recently while emphasizing that the school itself is not a party to the case. Still, she said, the school would participate in the tuitioning program “if we are allowed to be us, and there are no strings attached to the money.”

“We will not change who we are,” Boone said. “We won’t change the core of what our values are. The anti-discrimination laws are written to include religious exemptions.”

But Bindas said the case is not about “funneling public money to religious schools.”

“The problem here is Maine has been discriminating against parents who desire a religious education for their children for four decades,” he said. “Perhaps people have gotten used to this state of affairs.”

The parents have most of the same allies that Montana private school parents attracted in the Espinoza case, from conservative religious liberty groups to professors to religious congregations. One notable difference is the federal government, with the Trump administration having supported the Montana tax credit (and the parents in this case in the appeals court), while the Biden administration has filed a brief siding with the state.

Maine education groups say that religious school parents are trying to ‘hijack’ the program

The state, which declined an interview request, argues among other things that the religious schools may not even wish to accept public tuition funds.

Both Bangor Christian and Temple Academy, for example, have policies that bar LGBTQ people from employment. The state says that would run afoul of the Maine Human Rights Act, which bars such discrimination and provides a religious exemption only for organizations that do not receive public funds.

“Accepting public funds would result in a significant change in how BCS and TA operate,” the state argues, saying the schools could no longer refuse to hire LGBTQ teachers or discriminate against LGBTQ students.

Maine is supported by the major education groups within the state, along with a range of outside groups.

The Maine School Management Association, joined by groups representing the state’s school boards and principals, argue in a brief that the religious school parents are trying “to hijack Maine’s tuition law and force Maine taxpayers to fund religious education for their children.”

Bailey, a former principal and superintendent who leads the state school boards association, said that while relatively few students and schools would be added to the tuition program if the exclusion of religious schools is overturned, “it’s the principle that is large.”

“This has always been very limited school choice,” he said.

Grace Leavitt, the president of the Maine Education Association, which joined brief from multiple teachers’ unions in support of the state, said the parents and their backers “are trying to turn this into a voucher program.”

Maddaus, the University of Maine professor, noted that some parents choose to live in towns without high schools so they can send their children to approved private schools at state expense. In that sense, the tuitioning program has acted as a school choice program. But there has never been a widespread desire to make the program apply statewide, even in towns with high schools.

“Most Mainers don’t see the need for that,” he said. “This program never fully went in the direction that national proponents of school choice intended.”

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