Religious Schools Can Get State Tuition Aid

The Supreme Court of the United States (SCOTUS) issued a decisive victory for religious freedom and school choice this week in a 6-3 ruling in the Carson v. Makin case.

The case revolved around a Maine school-choice program that allowed parents to access taxpayer dollars for private school tuition. However, Maine attempted to prohibit parents from using the program to attend a religious school.

On Tuesday morning, the U.S. Supreme Court, in an opinion by Chief Justice John Roberts, ruled that a Maine private-school-choice statute violated the First Amendment Free Exercise of Religion, writing:

“[T]here is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

In response to this important ruling, Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty Institute said:

We are thrilled that the Court affirmed once again that religious discrimination will not be tolerated in this country. Parents in Maine, and all over the country, can now choose the best education for their kids without fearing retribution from the government. This is a great day for religious liberty in America.

Illinois Attorney General candidate David Shestokas celebrates the ruling as well, saying:

The Supreme Court affirmed this nation’s commitment to religious liberty in the case of Carson v. Makin. The court established a far reaching principle that when the government makes a benefit available it may not restrict the benefit based upon religion. While the case involved tuition assistance in schools, the principle established has the potential to extend across our civic life and keeps faith with the First Amendment’s Free Exercise Clause.

Justice Stephen Breyer wrote the dissent. In the dissent, Breyer said the majority gave too little credence to the establishment clause and too much to the free exercise clause, saying:

The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. The majority also fails to recognize the ‘play in the joints’ between the two Clauses.

Yet the Chief Justice’s majority opinion ended with these three sentences:

Maine’s nonsectarian requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program, said the chief justice, operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

This is not the first time the SCOTUS ruled to uphold the religious exercise clause regarding taxpayer tuition aid for religious schools. In its June 2020 decision in Espinoza v. Montana Department of Revenue, the Court struck down a state scholarship program that excluded religious schools. And in 2017, the court found in Trinity Lutheran Church of Columbia, Inc. v. Comer that a church-owned playground can be eligible for a public benefit program.

Bottom line: The government should not discriminate against citizens who would choose to use their tuition-assistance for faith-based schools schools. Carson v. Makin is a victory not just for religious freedom but also for educational choice.

Written by Jorge Gomez

Last week, the U.S. Supreme Court agreed to hear a potentially landmark case challenging a Maine law that bans families from participating in a student-aid program if they choose to send their children to religious schools.

The Institute for Justice (IJ), along with First Liberty as co-counsel, represents the parents in Carson v. Makin, and will argue the case in the U.S. Supreme Court’s 2021-22 term.

Let’s quickly recap what this case is about, including what implications the final decision could have for the liberty of students (as well as their parents) to choose which school they attend and whether they’ll face discrimination for pursuing a faith-based education.

Choose Your School—Unless it’s Religious

Maine has a 200-plus year tradition of using government funds to ensure education for its residents. Historically, some towns would provide for families to send their children to private academies, often run by religious organizations.

In 1903, the state passed a law ensuring that all children would have access to primary and secondary education. But not every community had enough money—or students—to justify building their own schools.

To this day, when a school district does not provide a public high school, Maine compensates for this by helping fund tuition at any public or private school that families choose, unless it is a religious school. This religious restriction wasn’t always there, though. Throughout most of the program’s history, parents could choose religious schools and still participate in the tuition program.

That changed in the 1980s, when Maine’s Attorney General declared that it was unconstitutional to include religious schools in the program. Later U.S. Supreme Court cases clarified that allowing school-choice program participants to select religious educational options did not violate the Establishment Clause. Allowing families to independently choose from an array of schools which may or may not be religious in no way violates the Constitution.

However, Maine did not remove the religious exclusion from its program. Despite previous lawsuits, Maine continued to deny families in “tuitioning towns” the choice to send their child to a religiously affiliated school under the school choice program.

Hope for Victory: What the U.S. Supreme Court Has Already Said

Looking ahead to the upcoming oral argument before the U.S. Supreme Court, there’s reason to have hope that First Liberty’s and IJ’s legal teams can achieve a victory on behalf of the families we represent who are challenging Maine’s religious discrimination.

In fact, the U.S. Supreme Court recently issued two decisions favorable to the constitutional rights of students and religious schools.

The first is Trinity Lutheran v. Comer (2017). Trinity Lutheran Church in Missouri applied in 2012 for a state program that used recycled tires to pad its playgrounds. The church runs a pre-school, but not all the students attended the church. The playground is also open to everyone in the community. Still, the state refused to let Trinity Lutheran Church improve the safety of its playground via the state program. Why? Because it was religious.

In 2017, the U.S. Supreme Court ruled 7-2 that religious organizations such as Trinity Lutheran could participate equally in taxpayer-funded state programs. In fact, by excluding Trinity Lutheran, the state of Missouri was discriminating on the basis of religion and violating the Constitution.

The second favorable ruling for religious liberty came in 2020, when the Institute for Justice won the landmark U.S. Supreme Court victory in Espinoza v. Montana Department of Revenue. In that case, the Court held that states cannot bar families participating in student-aid programs from choosing religiously affiliated schools for their children. The Court held that discrimination based on the religious “status,” or identity, of a school violates the Constitution.

In light of these precedents, First Liberty and IJ argue not only that the U.S. Supreme Court has given the green light to include religious options in a school choice program, but also that barring parents who choose religious options from participating in school choice programs violates the U.S. Constitution’s Free Exercise and Equal Protection Clauses.

With the Maine School Choice case, the U.S. Supreme Court has a prime opportunity to reaffirm that in America, families should not be excluded from participating in widely available public benefits only because they choose religious schools for their children.

This article was originally published at FirstLiberty.org.

Last Thursday, IFI’s lawyers filed a “friend of the court” brief urging the U.S. Supreme Court to take a case (Carson v. Makin) that could end discrimination against religious schools. The case involves a Maine school program that pays the private school tuition for students who live in an area that lacks a public high school. The schools eligible to receive this tuition are, according to the Maine Department of Education, private secular schools and nominally religious schools, but not schools that intentionally teach subjects from a religious (biblical) perspective.

IFI’s attorneys reminded the Court of the law’s confusion decades ago when the courts picked through the religious school’s practices to see if any money was actually being spent on religion. Although much of this confusion has evaporated over the past 30 years, there still remains the question of whether an intentionally religious school can receive public funding if it uses those funds for religious teaching (whether it is paying the teacher for a Bible class, new Bibles for the chapel, or teaching courses from a religious perspective).

The First Circuit Court of Appeals  (Maine, Massachusetts, New Hampshire) said no the school cannot receive this money and use it for religious purposes. The Tenth Circuit Court of Appeals (Colorado, New Mexico, Wyoming, Utah), however, in 2015 ruled that the schools could receive this money, the Tenth Circuit reasoning that to give money to nominally religious schools but not intentionally religious schools was treating the same category of schools differently, which is a violation of the Equal Protection Clause. Because of this split in the two Circuits, there is a good chance that the Court will take and decide this case.

Jim Davids, who co-authored the amicus brief and is the General Counsel of IFI’s Justice & Freedom  Law Center, remarked, “I very much hope that the Court takes the Carson case and ends the discrimination against religious schools. Christian schools historically have done a great job educating our children to be productive and good citizens, training them to value life, liberty, and property, all natural rights derived from Judeo-Christian values. The Christian love taught at these schools is in sharp contrast to the public schools’ teaching of Critical Race Theory that teaches racial groups to hate each other. Which is to be preferred – “love thy neighbor” or “hate your [imagined] oppressor [who has never truly hurt you]?”