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Supreme Court rules tuition aid can be used for religious schools


Anna Moneymaker | Getty Images | AFP

John Burger - published on 06/21/22

Maine law that requires schools to be nonsectarian in order to receive tuition assistance violates First Amendment's Free Exercise clause, justices rule.

A Maine law that requires schools to be nonsectarian in order to receive tuition assistance violates the Free Exercise clause of the First Amendment, the Supreme Court ruled today.

The 6-3 decision in Carson v. Makin sided with parents who sued the State of Maine because they were denied tuition assistance when sending their children to religious schools in the state.

The law provides tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district.

Under the program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition. Since 1981, Maine has limited tuition assistance payments to “non-sectarian” schools.

When David and Amy Carson were denied tuition assistance so they could send their daughter to Bangor Christian Schools, they sued the commissioner of the Maine Department of Education. They were joined by Troy and Angela Nelson, who sought to send their children to Temple Academy, which is also a religious school. The district court ruled for the commissioner, and after the two couples failed in their appeal to the First Circuit Court of Appeals, the case was brought to the Supreme Court. 

A syllabus of Tuesday’s opinion, which was drafted by Chief Justice John G. Roberts Jr., said that two recent Supreme Court rulings, Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue, contain principles that suffice to resolve the Carson case. In Trinity Lutheran, the court considered a Missouri program that offered grants to qualifying non-profit organizations that installed cushioned playground surfaces, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity. The court held that the Free Exercise Clause did not permit Missouri to “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”  

In Espinoza, the Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at religious schools. “A State need not subsidize private education,” the Court concluded, “but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

“Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school,” the opinion in Carson reads. “Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, the religious schools in this case are disqualified from this generally available benefit ‘solely because of their religious character.’ Likewise, in Espinoza, as here, the Court considered a state benefit program that provided public funds to support tuition payments at private schools and specifically carved out private religious schools from those eligible to receive such funds. Both that program and this one disqualify certain private schools from public funding ‘solely because they are religious.’ A law that operates in that manner must be subjected to ‘the strictest scrutiny.’”

The court went on to say that Maine’s program “cannot survive strict scrutiny.”

“To satisfy strict scrutiny, government action ‘must advance interests of the highest order and must be narrowly tailored in pursuit of those interests,’” the court said. “A law that targets religious conduct for distinctive treatment . . . will survive strict scrutiny only in rare cases. This is not one of them.”

The court cited its 2002 Zelman v. Simmons-Harris ruling, which upheld an Ohio school voucher program. “Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires.”

“Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice,” the court said. “Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program — including the prohibition on denying the benefit based on a recipient’s religious exercise.”


Roberts was joined by the five other conservative justices on the court: Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

In a dissent joined by Justice Elena Kagan and in part by Justice Sonia Sotomayor, Justice Stephen G. Breyer said the court had “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.”

Maine, Breyer wrote, “excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals.

“The two private religious schools at issue here satisfy both of these criteria,” the retiring justice wrote. “They are affiliated with a church or religious organization. And they also teach students to accept particular religious beliefs and to engage in particular religious practices.”

But Cardinal Timothy M. Dolan of New York and Bishop Thomas A. Daly of Spokane said in a statement that the high court “has rightly ruled that the Constitution protects not just the right to be religious but also to act religious.” They are chairmen of the U.S. Conference of Catholic Bishops’ (USCCB) Committees for Religious Liberty and Catholic Education, respectively.

“This common-sense result reflects the essence of Catholic education,” said the bishops. “Moreover, the Court has again affirmed that states cannot exclude religious schools from generally-available public benefits based on their religious affiliation or exercise. In our pluralistic society, it is vital that all people of faith be able to participate in publicly available programs and so to contribute to the common good.”

The two prelates said it is fitting that this decision concerns a program in Maine, the state that James G. Blaine represented as a U.S. senator in 1875 when he worked for the passage of the Blaine Amendment. Dolan and Daly called that amendment a “cynically anti-Catholic measure” to amend the Constitution to “ensure that no public aid be provided to ‘sectarian’ schools.”

While his effort was narrowly defeated, Blaine Amendments were ultimately adopted in some form by 37 states. “These laws have nothing to do with government neutrality towards religion,” the bishops said. “Rather, they are expressions of hostility toward Catholics. We are grateful that the Supreme Court continues to rebuke this harmful legacy.”

Eric Rassbach, an attorney at the Becket Fund for Religious Liberty, which had filed a friend-of-the-court brief in the Carson case, said on Twitter that Tuesday’s ruling is “the latest in a series of big wins at #SCOTUS for religious schools.”

“The Court specifically rejects any attempt to exclude religious schools from full participation in society based on ‘whether’ or ‘how’ ‘a religious school pursues its educational mission,’” Rassbach tweeted. “In fact, that kind of scrutiny would result in church-state entanglement.”

Former United States Ambassador at Large for International Religious Freedom Sam Brownback in a statement called the June 21 decision “both good and right.”

“I am encouraged that the Court has upheld the Constitution’s protection of a person’s free exercise of religion,” said Brownback, who now heads the National Committee for Religious Freedom. “I agree — if a state wishes to subsidize education it must not exclude or discriminate against those who would use that subsidy in favor of religious schools.”

EducationReligious Freedom
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