Law & Courts

Supreme Court Strikes Down Maine’s Exclusion of Religious Schools From Tuition-Aid Program

By Mark Walsh — June 21, 2022 7 min read
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The U.S. Supreme Court on Tuesday struck down the state of Maine’s exclusion of religious schools from a state tuition program for towns without public high schools as a violation of the First Amendment.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the free exercise clause,” Chief Justice John G. Roberts Jr. wrote in the 6-3 majority opinion in Carson v. Makin (No. 20-1088). “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

The dissenters hinted at the potential impact of the decision beyond the quirky “tuitioning” programs that Maine and only a handful of other states—Vermont and New Hampshire—operate.

“We have never previously held what the court holds today, namely, that a state must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Justice Stephen G. Breyer wrote in dissent.

“What happens once ‘may’ becomes ‘must’?” Breyer said. “Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”

In a separate dissent, Justice Sonia Sotomayor said, “Today, the court leads us to a place where separation of church and state becomes a constitutional violation. If a state cannot offer subsidies to its citizens without being required to fund religious exercise, any state that values its historic antiestablishment interests more than this court does will have to curtail the support it offers to its citizens.”

“With growing concern for where this court will lead us next, I respectfully dissent,” she said.

Derek W. Black, a law professor and scholar of education law at the University of South Carolina, noted that many states that have enacted voucher programs include religious schools. The bigger impact may be on efforts to establish religious-themed charter schools, he said.

“This case throws fuel on the fire of those arguing that states must allow churches to operate public charter schools and teach religion as truth inside of them,” said Black, who helped write a friend-of-the-court brief in support of Maine. “If that comes to fruition, states will have lost all control over the education they try to ensure for children, even in charter schools that call themselves public.”

The decision may have implications beyond Maine

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 towns without high schools to pay 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.

Maine’s exclusion of certain religious schools was challenged by David and Amy Carson, whose daughter recently graduated from Bangor Christian Schools, a small, conservative K-12 school; and by Troy and Angela Nelson of Palermo, Maine, who sought to send their daughter to Temple Academy, another conservative Christian school.

Roberts, in his majority opinion, said the “unremarkable” principles of two recent Supreme Court decisions on government aid to religion “suffice to resolve this case.”

The court held 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.

In its 2020 decision in Espinoza v. Montana Department of Revenue, the court held that a state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from a tax credit program for donations to tuition organizations.

“[A]s we explained in both Trinity Lutheran and Espinoza, … an ‘interest in separating church and state “more fiercely” than the Federal Constitution … “cannot qualify as compelling” in the face of the infringement of free exercise’,” Roberts wrote.

“The state pays tuition for certain students at private schools—so long as the schools are not religious,” Roberts said, referring to Maine’s program. “That is discrimination against religion.”

The chief justice’s opinion was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett.

Dissenters express concern about religious strife and schools’ discriminatory policies

Breyer, in his dissent joined in full by Justice Elena Kagan and in part by Sotomayor, said the court was removing some of the often-mentioned “play in the joints” between the First Amendment’s free-exercise clause and its clause barring government establishment of religion.

“People in our country adhere to a vast array of beliefs, ideals, and philosophies,” Breyer said. “And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion.”

The two religious schools at the center of the Maine case both offer evangelical or Bible-centered approaches quite different than the kind of civic education offered by public schools, he said.

The religious schools “have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians,” Breyer said. But Maine lawmakers did not want the state’s taxpayers to have to subsidize such policies, he said.

Sotomayor, in her lone dissent, said that the court “continues to dismantle the wall of separation between church and state that the Framers fought to build.”

“The majority, while purporting to protect against discrimination of one kind,” she said, “requires Maine to fund what many of its citizens believe to be discrimination of other kinds.”

Roberts, in a retort, said the dissenters were wrong to say that Maine “must” fund religious education.

“Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not ‘forced upon’ it,” he said. The state could “expand the reach” of its public school system or provide transportation, tutoring, or remote learning if it chooses, he said.

“As we held in Espinoza, a ‘state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious,’” Roberts said, quoting his own opinion from the 2020 decision.

Amy Carson, whose daughter graduated high school in 2021 and is now attending college, said in a statement that the ruling “will allow Maine families to choose the school that is best for their child. We always knew that we would be unlikely to benefit from a victory but felt strongly that Maine’s discrimination against religious schools and the families who choose them violated the Constitution and needed to end.”

Michael Bindas, a lawyer with the Arlington, Va.-based Institute for Justice who argued for the parents, said the decision “makes clear, once and for all, that the government may not bar parents from selecting religious schools within educational choice programs, whether because of their religious affiliation or the religious instruction they provide.”

Maine Attorney General Aaron Frey, whose office defended the exclusion of religious schools from the state’s program, said he was “terribly disappointed and disheartened” by the ruling.

“The education provided by the schools at issue here is inimical to a public education,” Frey said in a statement. “They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff. … While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.”


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