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Separation of church and school? Justices will weigh Maine’s ban on funds for religious education

On Wednesday the Supreme Court will hear oral argument in a challenge to a Maine program that pays for some students to attend private schools. Two families that want to send their children to Christian schools in the state argue that the state’s exclusion of schools that provide religious instruction from the program violates the Constitution. Although the justices’ ruling will directly affect fewer than 5,000 students in Maine, the court’s eventual decision could have a significant impact on public funding for religious education well beyond the state’s border.


The dispute, Carson v. Makin, centers on the system that Maine uses to ensure that all school-aged children in the state have an opportunity to receive a free public education. With fewer than 180,000 students in kindergarten through 12th grade, distributed over 260 school districts, not all school districts operate their own secondary schools. Instead, some districts make arrangements with specific private schools or other public schools to take their students. And other school districts allow their students to choose their own public or private school and pay their tuition. However, the Maine program only allows tuition payments to go to private schools that are “nonsectarian” – that is, schools that do not provide religious instruction.

The plaintiffs in the case are two sets of parents who live in districts that do not operate their own secondary schools. As a result, their children were eligible to receive tuition assistance to attend private schools approved by the state. David and Amy Carson sent their daughter to Bangor Christian, in the city of Bangor, “because the school’s Christian worldview aligns with their sincerely held religious beliefs.” Troy and Angela Nelson would like to send their son to Temple Academy, a Christian school in Waterville, but can’t afford it without tuition-assistance payments.

After the Supreme Court’s 2017 ruling in Trinity Lutheran Church of Columbia v. Comer, holding that the Constitution’s free exercise clause barred the government from denying the church a benefit that is otherwise available to the public just because of the church’s religious status, the Carsons and the Nelsons went to federal court. They argued that the exclusion of religious schools from Maine’s tuition-assistance program likewise violates the free exercise clause.

While the parents’ case was pending, the Supreme Court issued its decision in another school-funding case, Espinoza v. Montana Department of Revenue. By a vote of 5-4, the justices ruled in June 2020 that although states are not required to subsidize private education, they cannot exclude families or schools from participating in programs to provide public funding for private schools because of a school’s religious status. The court left open the question whether the state could exclude families or schools from the program because the money would be used for religious purposes at school.

In a decision in October 2020, the U.S. Court of Appeals for the 1st Circuit (with a panel that included retired Justice David Souter) rejected the parents’ challenge to the Maine program. It held that unlike the religious exclusions in Trinity Lutheran and Espinoza, the Maine law “does not bar schools from receiving funding simply based on their religious identity.” Instead, the court of appeals explained, the exclusion examines “what the school teaches through its curriculum and related activities,” and the law prohibits schools from receiving funding because of the “religious use” to which they would put the funds. The law, the court of appeals concluded, “merely reflects Maine’s refusal to subsidize religious exercise.”

The parents went to the Supreme Court, which agreed last summer to weigh in.

The challengers’ arguments

In their brief on the merits, the parents contend that Maine’s exclusion of sectarian options from its tuition-assistance program violates the Constitution because it is not neutral toward religion nor generally applicable, the test used in free exercise clause cases. It isn’t neutral, the parents say, because the program only allows private schools to participate if they are nonsectarian. And it isn’t generally applicable, they argue, because it requires state officials “to make judgment calls based on the degree of a religious school’s religiosity.” Therefore, they conclude, it is subject to the most stringent constitutional test, known as strict scrutiny, which it fails.

More broadly, the parents tell the justices, there is “no basis” for the 1st Circuit’s effort to distinguish between religious status and religious use. Indeed, they suggest, the framers of the Constitution opted to protect religious “exercise,” rather than “mere belief or conscience, to ensure that Americans would be free to live out their faith.” And for these parents and others who would use the tuition-assistance program, they explain, ensuring that their children receive a religious education is a religious obligation; barring them from participating in the tuition-assistance program because the funds would be used for religious purposes discriminates “not only against that religious use, but also against the religious status that impels it.”

The parents stress that the Supreme Court “has never endorsed a distinction between religious status and use as grounds for eluding strict scrutiny of laws that discriminate based on religion.” If the justices suggested such a distinction in Locke v. Davey, a 2004 ruling in which the court upheld the constitutionality of a publicly funded scholarship program that excluded students from pursuing a degree in devotional theology, the parents write, “it was wrongly decided and should be overruled.”

However, the parents continue, the justices can strike down the exclusion of sectarian schools from Maine’s tuition-assistance program without overruling Locke. Among other things, they note, the exclusion is significantly broader than the one at issue in Locke, which focused on training ministers to lead congregations. Here, they point out, Maine’s program bars any assistance to schools that teach religion. And neither of Maine’s justifications for the exclusion is the kind of historic and substantial interest envisioned in Locke, they say. The exclusion stems from an opinion by the state’s attorney general indicating that the state should carve out sectarian options to avoid violating the Constitution’s establishment clause, they observe. Maine’s argument that it only wants to pay tuition at private schools that provide educations similar to what students would receive in public school also came after it had already created the exclusion, the parents contend, and in any event it is “neither compelling not historic and substantial”: Indeed, in this country’s early years, governments often provided religious schools with public funding – to pay, for example, to educate the poor, Native Americans, and residents of the District of Columbia.

Maine’s arguments

For its part, Maine portrays its tuition-assistance program (and the decision to exclude sectarian schools from the program) as a unique one, intended to provide students who live in school districts without their own secondary schools with the equivalent of the education that they would have received in a public school. Emphasizing the important role of public education in fostering “democracy and good citizenship,” the state explains that it has concluded 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.” That determination to make a public education nonsectarian, the state continues, is at the heart of its decision to limit the tuition-assistance program to nonsectarian schools, because it wants to ensure that “every child has access to a free public education – i.e., a religiously-neutral education where subject matter is not taught through the lens of any particular faith.”

Because the tuition-assistance program is simply intended to replicate a public education, Maine continues, it is different from other school-choice programs that provide public funds to families “who for academic, religious, athletic, or other reasons want to opt out of the public education system, and send their children to private schools.” Instead, the state stresses, the tuition-assistance program is only available to the limited subset of families who live in school districts that don’t operate their own secondary schools and don’t make arrangements for their students to attend specific schools.

Therefore, the state tells the justices, the Carsons and the Nelsons are not being denied a “generally available public benefit” because they cannot attend Christian schools at state expense. The benefit that Maine is offering, the state explains, “is a free public education.” If Maine only provided a public education through its public schools, the state notes, the Carsons’ and Nelsons’ children would not have “a constitutional right to attend sectarian schools at public expense. The result should be no different,” the state writes, “simply because Maine sometimes makes use of privately-owned schools to provide a public education.”

Maine assures the justices that the exclusion of sectarian schools from its tuition-assistance program is not motivated by hostility to religion, but instead by the belief that “a public education is both defined by inclusion and tolerance, and reflective of the diversity of our students and our community.” In this case, it observes, Bangor Christian and Temple Academy will only hire born-again Christians as teachers, and the schools acknowledge that they will not hire LGBTQ teachers or admit LGBTQ students. Although the schools have a right to maintain these policies, the state concedes, Maine is not required to “fund their educational program as the substantive equivalent of a public education.”

Friend-of-the-court briefs

Appearing as a “friend of the court” supporting Maine, the federal government focuses on an argument that Maine also makes: The Nelsons and the Carsons do not have a legal right, known as standing, to bring this lawsuit in the first place. The parents could only send their children to Temple Academy and Bangor Christian if those schools decide to accept public funds, and both sides in the case agree that it is uncertain whether the schools would do so if the law were struck down. Moreover, the government adds, the Nelsons’ daughter has graduated, and their son now attends another school, so their only injury is that they can’t send their son to Temple Academy using public funds. And, the government continues, the Carsons’ claims are moot – that is, no longer a live controversy – because their daughter has recently graduated from high school.

Friend-of-the-court briefs filed on both sides of the issue warn the justices that sweeping consequences are likely to flow from the court’s ruling. Supporting the parents, the Liberty Justice Center tells the justices that the ability to use public funding to attend private schools is a “lifeboat” for a wide range of children – not only children from low-income and urban families but also students with special physical or intellectual needs, victims of bullying, religious minorities, tribal students, and children of military families. Because roughly two-thirds of all private schools in the United States are religious, the group explains, excluding faith-based schools from public-funding programs would “severely curtail[] the educational options available to families.”

The National Association of School Boards, which filed a brief supporting Maine, counters that a ruling for the families could create “significant” damage to public education by eliminating the distinction between religious status and religious use and therefore “opening the gate for widespread public funding of private schools.” Faced with a scenario in which they are required to fund religious education, the association predicts, states “would likely expand” their voucher and school-choice programs “dramatically or shut them completely.”

This article was originally published at Howe on the Court.


Recommended Citation: Amy Howe, Separation of church and school? Justices will weigh Maine’s ban on funds for religious education, SCOTUSblog (Dec. 7, 2021, 4:01 PM),