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Supreme Court hears arguments in Maine school choice case


La réforme des manuels scolaires des collégiens pour la rentrée 2016 ©Jacques Loic-Photononstop

John Burger - published on 12/08/21

Discussion revolves around whether schools are being discriminated against because they are religious or because they do religious things.

Maine has a student population that is so spread out in rural areas that some school districts do not have their own public secondary school. In order to ensure that all students have access to a free public education, the state’s Tuition Assistance Program enables students to get a “rough equivalent” of a public education at a public school in a nearby district or at a private school. 

The only restriction is that tuition assistance may not be used at sectarian schools. 

On Wednesday, the Supreme Court heard a challenge to that rule from parents who said it violates the Free Exercise Clause of the U.S. Constitution’s First Amendment. 

The Court is being asked to rule on whether a state violates the religion clauses or equal protection clause of the Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction. 

The case, Carson v Makin, features a family — the Carsons — who sent their daughter to Bangor Christian School, a private, nonprofit school. According to their brief, they selected Bangor Christian “because the school’s Christian worldview aligns with their sincerely held religious beliefs and because of the school’s high academic standards.” 

But because the school is “sectarian,” “instilling a biblical worldview in its students” and “intertwin[ing]” religious instruction with its curriculum, it cannot be approved for tuition assistance purposes. As a result, the Carsons had to pay their daughter’s tuition out-of-pocket, even though she was entitled to the tuition assistance benefit, the brief claims.

The state says the purpose of the tuition assistance program is 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.” Its brief says that religious organizations “that are willing to provide education comparable to a public education are eligible to receive public funds through Maine’s tuition program. 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.”

Some of the discussion between justices and lawyers for both sides, as well as a lawyer for the Biden Administration, which supports Maine in the case, centered on a distinction between a religious organization’s “status” or identity and how the schools will actually “use” the funds.

“Status or use”

Michael E. Bindas, a lawyer for the Institute of Justice who is representing the parents, said the distinction is ridiculous. “Religious schools teach religion, after all, just as a soccer team plays soccer, or a book club reads books,” he said in his opening statement. “Yes, it is part of what they do. It is also part of who they are.”

Another topic that received a lot of discussion was whether the public assistance was for the schools per se or for parents, who could choose on their own how to spend it. Bindas argued that it’s for the latter, comparing it to a recipient of Social Security benefits using part of the funds as a church tithe.

In the current case, he said, “to the extent that there can be any advancement of a religious mission, that is attributable to the choice of a parent. It can in no way be attributed to the government.” 

Still, Justice Stephen Breyer retorted, it’s the government that is paying for it. 

Justice Sonia Sotomayor argued that the Carsons are given the same choice that all other Maine parents have: “either get a free public secular education or pay for your religious training. They are being treated as everybody else is. … They are getting more than other parents.” 

Bindas said that for a century before 1980, Maine allowed religious schools to participate in the program. That was changed because of “an erroneous interpretation of the Establishment Clause.”

Justice Elena Kagan argued that allowing the kind of funding the Carsons seek would lead in many cases to divisiveness in communities, particularly among people who object to the “discriminatory” policies and teachings of some religious schools. She and other justices asked about the restrictions some schools have against hiring openly homosexual teachers or about doctrines supporting the view that a man is head of a household.

A decision is expected in the case by next June. Depending on the outcome, it could affect school choice efforts nationwide, said Nicole Stelle Garnett, a senior fellow at the Manhattan Institute and a law professor at the University of Notre Dame.

“For decades, school choice has been gaining momentum across the United States,” Garnett wrote. “Currently, 31 states have at least one publicly funded private-school-choice program, enabling more than 600,000 children to attend a private school. In 2021 alone, 21 states have enacted, expanded, or improved private-school-choice programs, and three states joined the private-school-choice roster (Kentucky, Missouri, and West Virginia). A Supreme Court decision clarifying that the Free Exercise Clause always prohibits the exclusion of religious schools from choice programs would clear away a major impediment to building on this momentum: state constitutional provisions prohibiting the funding of faith-based school.”

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