Law & Courts

Religious Schools and State Aid: What to Glean From a Lively Supreme Court Argument

By Mark Walsh — December 08, 2021 8 min read
From left, Amy and Olivia Carson pictured outside Bangor Christian School in Bangor, Maine on Nov. 5, 2021.
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A majority of U.S. Supreme Court justices on Wednesday appeared sympathetic to claims by families in Maine that the exclusion of religious schools from a state tuition program for towns without their own high schools is a form of impermissible religious discrimination.

The argument, lasting nearly two hours, was fast-moving and engaging, touching on a range of topics that included the potential for religious strife; hypothetical schools organized to promote Marxism, racial supremacy, or critical race theory; and LGBTQ rights.

“As I understand it, [the parents] are seeking equal treatment, not special treatment,” Justice Brett M. Kavanaugh said during arguments in Carson v. Makin (Case No. 20-1088). “They’re saying don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.”

Chief Justice John G. Roberts Jr., the author of the court’s two most recent decisions requiring states to include religious schools in aid programs, told a lawyer for the state that if Maine was excluding a private school that infused religion throughout its educational program, then “you’re discriminating among religions based on their belief.”

The lawyer representing Maine pushed back.

“The reason that schools that promote a particular faith are not eligible to participate is simple,” said Christopher C. Taub, the state’s chief deputy attorney general. “Maine has determined that, as a matter of public policy, public education should be religiously neutral.”

But Michael E. Bindas, a lawyer with the Institute for Justice arguing on behalf of two Maine families who have sought to select conservative Christian schools for their children to attend at state expense, leaned hard on the religious discrimination argument.

“Religious schools ... teach religion, just as a soccer team plays soccer or a book club reads books,” he said. “Of course, religious schools also teach secular subjects and satisfy every secular requirement to participate in the tuition assistance program. It is only because of religion that they are excluded.”

The justices dig deep into details of Maine’s program

The case is about Maine’s tuition program for some 4,500 students (out of a state public school enrollment of 180,000) and the state’s long tradition of requiring its towns without high schools of paying to send their students to public or private schools elsewhere. Since 1980, the state has permitted only “non-sectarian” private schools to participate in the tuition program, barring those it deems to be promoting a particular faith or belief system.

Justice Elena Kagan suggested that Maine’s program “is different from a typical school choice program. ... This is really a default program for a very small number of students living in isolated areas where the state has decided … it does not have the resources to provide public schools.”

Bindas responded by noting that for more than a century, Maine allowed religious schools to participate in this program, until a 1980 state attorney general opinion concluded that such arrangements presented a problem under the First Amendment’s prohibition on government establishment of religion.

“For a century, religious schools could participate. And for a century, that was fine,” Bindas said. “This was not about providing a substitute for public education.”

Several of the court’s more-conservative members were struck by the fact that Maine has approved out-of-state schools for inclusion in the tuition program and a few schools which have had some religious character, such as regular chapel service.

Olivia Carson and her father, David Carson, flank Institute for Justice attorney Michael E. Bindas outside the U.S. Supreme Court after Bindas argued in Carson v. Makin on Dec. 8, 2021.

“Suppose parents want to send their child, using this money, to an elite private school, Exeter, Andover, Miss Porter’s,” Justice Samuel A. Alito Jr. said. “That would be OK, right?”

Taub said yes, because those schools are religiously neutral and offer an education that was comparable to a Maine public school education.

“If you went into any private school, even take Andover Academy, I mean, certainly, there are going to be trappings there that are going to be much different than trappings in a public school,” Taub said. “But, at the end of the day, your chemistry class is going to be taught the same as a public school chemistry class.”

Maine parents are evidently responsible for any difference between the regular tuition at such an elite school and the roughly $11,000 in tuition provided by the state under the program. Only one out-of-state school is approved for the program this school year.

Some justices expressed concern about state education “bureaucrats” reviewing the curriculum and policies of religious schools to determine whether they are too sectarian under Maine’s rules.

“So we’ve never really had a hard case,” Taub said. “In 20 years worth of records, we’ve identified three schools where there was any issue raised about whether they were eligible.”

One was a seminary school that was “clearly ineligible,” he said. Another was a school that didn’t respond to requests for more information. And a third was a school with a chapel that was able to satisfy state officials that there were no mandatory religious services for students, he said.

Questions about how certain religions would be treated

Alito asked about a school affiliated with a religious group that infuses its religious beliefs into all aspects of the community, and its “salient religious beliefs” are that all people are created equal and that nobody should be subjected to any form of invidious discrimination, and that everyone is worthy of respect.

When Taub said that would be pretty close to a public school, which also promotes values such as public service and kindness to others, Alito pounced.

“Well, then you really are discriminating on the basis of religious belief,” he told Taub. “What I described is, I think, pretty close to Unitarian Universalism, isn’t it? And that is a religious community. … Unless you can say that you would treat a Unitarian school the same as a Christian school or an Orthodox Jewish school or a Catholic school, then I think you’ve got a problem of discrimination among religious groups.”

Questions about hypothetical Marxist, white supremacist, or ‘critical race theory’ schools

Taub said the state has considered whether certain private schools might come along with themes that would be inconsistent with public education, such as Marxism or Leninism, or white supremacy. Such schools would likely not be approved for the tuition program, he said.

“Clearly, those kinds of schools would be doing something completely inconsistent with a public education,” he said.

Alito asked, “Would you say the same thing about a school that teaches critical race theory?”

Taub hemmed and hawed a bit. “Frankly, I don’t—I don’t really know exactly what it means to teach critical race theory,” he said. “But I will say this, that if teaching critical race theory is antithetical to a public education, then the legislature would likely address that.”

Justice Amy Coney Barrett observed that “all schools, in making choices about curriculum and the formation of children, have to come from some belief system.” How would state officials know whether a religious school taught that “all Catholics are bigoted” or took a position in the “Jewish-Palestinian conflict” if they were not examining the “belief systems” of the school, she wondered.

Taub said that “if a Department of Education official sees information that that the school seems to be teaching antireligious views, that would raise a red flag.”

Concerns about other forms of discrimination and ‘religious strife’

On the liberal wing of the court, Justice Stephen G. Breyer asked about the policies of the Maine private schools where the parents in the case have sought to send their children at state expense, Bangor Christian Schools and Temple Academy.

“There are beliefs that no gay students, no gay teachers, the man is superior to the woman, and a few other things like that,” Breyer said.

Bindas said some issues about the schools’ policies are unclear in the record before the court, and that in any event Maine’s antidiscrimination law, which covers sexual orientation and gender identity, provides an exemption to religious employers.

Breyer said he was worried about the “religious disputes” a ruling for the parents might engender.

“Religious beliefs, of course, are are very sincere and held very strongly,” he said. “And so there was a reason why this court’s cases have said we do not want to get into a situation where the state is going to pay for the teaching of religion by … practicing religious organizations, and that seems to me to stick its head up in a lot of different aspects of this case.”

Christopher C. Taub, the chief deputy attorney general of Maine, with Sarah A. Forster, an assistant state attorney general, outside the U.S. Supreme Court on Dec. 8, 2021, after Taub argued for the state in Carson v. Makin.

Bindas said that the court’s 2002 decision in Zelman v. Simmons-Harris, which upheld a voucher program that included religious schools under the establishment clause, stands for the idea that when analyzing a state aid program that is based on the individual choices of parents, then “what the court called the specter of divisiveness [and] religious strife, does not bear on the constitutional analysis.”

Kagan said the Zelman case was about whether a state could implement a choice program that included religious schools. In this case, the question is whether a state or locality must include religious schools in such a program.

“What we have often talked about in our First Amendment religion cases is this idea ... that there is some amount of funding which is neither prohibited by the First Amendment nor commanded by the First Amendment,” Kagan said.

Referring to the conservative Christian schools involved in the Maine case, Kagan said, “I mean, these schools are overtly discriminatory. They’re proudly discriminatory. Other people won’t understand why in the world their taxpayer dollars are going to discriminatory schools. For any of a number of reasons, a state can say, ‘We don’t want to play in this game.’”

The Biden administration backs the state’s restrictions

Deputy U.S. Solicitor General Malcolm L. Stewart argued in favor of Maine’s position that religious schools can be constitutionally excluded from the tuitioning program.

“The state is behaving neutrally in the sense that it will fund secular education and not religious education,” Stewart said. “And that seems especially appropriate in a program like this one that … [is] not intended to provide the broadest range of possible choices.”

A decision in the case is expected by late June.

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