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SCOTUS May Be Setting Up Another Win for Religious Schools

By Joseph Fawbush, Esq. on December 13, 2021 5:32 AM

Maine ranks as one of the country's most rural states, with 61% of residents in rural areas. One upshot of this configuration is that many of Maine's school districts do not have even a single high school. But since students in those districts nonetheless have an equal right to a free public education, they are left with some unusual choices: either reach an agreement with surrounding districts to enroll the affected students, or Maine pays the affected students' tuition at private schools in lieu of an accessible public school.

But Maine drew a line on its tuition reimbursement when it came to religious schools; the state refused to use taxpayer dollars to send students to faith-based private schools, on the theory that doing so would violate the First Amendment. In response, two rural Maine families who wanted to send their children to private Christian high schools filed suit against the state last year, in the case of Carson v. Makin. On December 8, the U.S. Supreme Court heard oral arguments for the case . After hearing the Justices' questions, many people following recent Supreme Court trends are predicting another win for school choice.

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Expanding Access to Public Money for Religious Schools

In 2020, the Supreme Court held in Espinoza v. Montana Department of Revenue that a state cannot refuse to provide funds for non-religious educational programs just because of a school's religious status. The 5-4 opinion reasoned that a Montana scholarship program did not violate the Establishment Clause because it was "neutral," since religious institutions would only benefit as a result of parents independently choosing to send their children to religious schools. The majority concluded that disqualifying "otherwise eligible recipients from a public benefit" based on religion was unconstitutional. 

Left open was the question of whether taxpayer money could be used for an explicitly religious educational purpose—which is the key question in ​Carson. The schools involved in that case are Christian, and the curriculum reflects it, as students are instructed in the Bible. But these schools would instruct their students on religious doctrine regardless of whether tuition was paid by families or by the state. Conservative Justices appeared to believe that this distinction did not make much of a difference to its constitutionality.

Conservative Justices Appeared Skeptical of Maine's Arguments

Maine argued that the purpose of the tuition program is to give all students the opportunity to have the equivalent of a public high school education. Since public schools are religiously neutral, Maine argued that using taxpayer money to give students a religious education would not meet this goal. The state also argued that the religious schools in question discriminate against non-Christians and LGBTQ students in their curriculum.

The majority of the Justices seemed skeptical, though. Chief Justice John Roberts asked whether Maine would distinguish between a faith-based school that taught according to its specific tenets, and one that was religious but taught students in a religiously neutral way. When the answer came that Maine would distinguish those two schools, Justice Roberts said that it was a basic violation of the Constitution to draw distinctions between religions according to their doctrines.

Justices Alito, Gorsuch, Kavanaugh, and Thomas also weighed in and appeared to favor the parents' arguments. Justice Alito, for example, said in response to one of his questions that unless Maine could treat all religious schools the same, "you've got a problem." Of the four Justices mentioned above, all except Justice Alito attended a private religious high school.

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