The U.S. Supreme Court has struck down a Maine law that bars the use of public dollars for tuition at religious schools, a decision that could create opportunities for school choice programs in other states.

Maine has long allowed students in towns with no public high school to put taxpayer money toward the cost of an outside school, public or private. But since 1981, the law has barred students from using those funds at religious schools.

The two Maine families suing the state in Carson v. Makin were eligible for the program but unable to spend tuition money on the religious school of their choice.

The program had survived at least four previous legal challenges. But the conservative majority on the Supreme Court has sided with religious interests in recent rulings and was clearly sympathetic to the plaintiffs in this case during oral arguments in December.

The opinion applies to a small number of high school students in Maine – no more than a few thousand – but could shift the balance of power in the national debate about public funding for religious education.

“It’s not really about Maine,” said John Maddaus, an associate professor emeritus at the University of Maine Orono who researched the tuition program in the 1990s. “Yes, it’s a Maine program. But it’s really about this larger national game.”

Chief Justice John Roberts wrote in the majority opinion that the program violates the Constitution’s guarantee of the free exercise of religion. Roberts said that if Maine allows taxpayer money to go to nonreligious private schools, it also has to allow taxpayer money to go to religious ones.

“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 operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” Roberts wrote.

The vote in Tuesday’s decision was 6 to 3, with the court’s three liberal justices dissenting.

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” wrote Justice Sonia Sotomayor, one of the dissenters.

AG ‘DISAPPOINTED AND DISHEARTENED’

Maine Attorney General Aaron Frey said Tuesday that he is “disappointed and disheartened” by the decision.

“While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear,” Frey said in a statement. “I intend to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance and bigotry.”

In his filings to the Supreme Court and arguments to previous courts that agreed to uphold Maine’s law, Frey has stressed that the two religious schools involved in the case – Bangor Christian Schools and Temple Academy – promote discrimination against gay and transgender children.

“(Bangor Christian Schools) and (Temple Academy) candidly admit that they discriminate against homosexuals, individuals who are transgender, and non-Christians with respect to both who they admit as students and who they hire as teachers and staff,” Frey wrote in the state’s filings to the Supreme Court. “This case is not about whether the schools have the right to behave in this manner as it is beyond dispute that they do; it is only about whether Maine must fund their educational program as the substantive equivalent of a public education.”

Neither school replied to phone calls and emails on Tuesday afternoon asking for an interview about the ruling.

The plaintiffs are represented by the Institute for Justice, a national law firm that takes cases on religious liberty and school choice. Michael Bindas, an attorney representing the parents for the Institute for Justice, said Tuesday’s ruling has immediate implications for Maine’s program and one in Vermont.

Bindas also hopes it emboldens state legislatures across the country to create more programs in which state funding can be used at private or religious schools of a parent’s choice.

“This opinion would apply squarely in a state that is adopting a perhaps more traditional school choice program,” Bindas said. “This isn’t about funding religious instruction. This is about funding students and allowing students to choose the best schools to meet their needs.”

PROGRAM AFFECTS ABOUT 5,000 STUDENTS

Maine has 260 school administrative units serving nearly 180,000 students from kindergarten to 12th grade. More than half do not have their own secondary schools, and many sign contracts or make agreements with other schools to provide those services. The Attorney General’s Office said approximately 5,000 Maine children live in districts that have neither a public school nor a contract with a public school in a nearby district.

The law in question said SAUs that do not have public high schools can pay outside public or private schools to accept their students, so long as those schools aren’t “sectarian.” An SAU could pay up to the statewide average tuition rate – about $12,000 in the 2021-22 school year – and the balance is the parents’ responsibility.

The Maine Department of Education said Tuesday afternoon that it was “reviewing the decision for its implications for Maine schools” and will work to implement the state’s tuition reimbursement program to comply with the ruling.

The plaintiffs include Amy and David Carson, who joined the lawsuit on behalf of their daughter Olivia. The Carsons live in Glenburn, a small town of roughly 4,500 outside Bangor. Olivia’s parents met at Bangor Christian School, where they sent Olivia with their own money.

Olivia was just starting high school when her parents sued the state on her behalf in 2018. She has since graduated from Bangor Christian and is studying at a local college.

“We just had a feeling it wasn’t going to benefit us directly,” Amy Carson said in an interview this month. “But we know other families down the road who this could help. It’s more of a trickle-down effect.”

The other plaintiffs are Angela and Troy Nelson, who live in Palermo. Their son attends Erskine Academy, a private, non-religious school. They joined the lawsuit because they wanted to send their children to Temple Academy for high school but could not afford to do so without state tuition.

The opinion relied heavily on two recent rulings, one from 2017 and another from 2020.

DECISION RELIES ON RECENT RULINGS

In the first, Missouri barred a church from participating in a state program that reimbursed the cost of rubberizing playground surfaces. The Supreme Court said that religious organizations cannot be excluded from state programs if they have secular intent, and Missouri had discriminated against this church based solely on its religious status.

In the second, the Supreme Court considered a scholarship program in Montana that provides tax credits for donations to private scholarship organizations. When the state said those scholarships could not be used at religious schools, parents sued. The justices ultimately said the state could not exclude religious schools.

Maine argued that those precedents should not apply to its tuition program because the exclusion is based on religious use, not religious status. Chief Deputy Attorney General Christopher Taub said during oral arguments that a private school with a religious affiliation could be eligible if it does not teach its beliefs above others or require participation in religious subjects.

The plaintiffs challenged that argument, and Roberts rejected it in his majority opinion. He said the state would raise serious concerns about denominational favoritism if it truly attempted to scrutinize whether and how a religious school pursues its mission.

“There is nothing neutral about Maine’s program,” Roberts wrote. “The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion.”

Justice Stephen Breyer, in a separate dissent, said the majority opinion ignores any part of the First Amendment that forbids the state from enacting laws relating to a religious establishment.

“The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion,” Breyer wrote.

The Supreme Court received more than three dozen amicus briefs from interested scholars and organizations on both sides of the issue.

Derek W. Black, a law professor at the University of South Carolina, is an expert in education law and contributed a brief in support of the state.

“It wasn’t surprising,” he said about the ruling. “But it was still shocking and disturbing.”

In Maine, Black said lawmakers will need to come up with a new system for ensuring that students in rural areas without a public high school have access to the equivalent of a public education. In other states, he anticipated new battles about using taxpayer funding for religious schools.

FIGHT OVER CHARTER SCHOOLS

“The big fight is around charter schools,” he said. “This was a private-choice lobby. They’re not stopping here.”

The Maine Education Association, which represents nearly 24,000 educators in Maine, submitted an amicus brief with the National Education Association in support of the tuition program while the Supreme Court was still considering the case.

Grace Leavitt, president of the MEA, said Tuesday that she was discouraged by the opinion and anticipates it will undermine public education in Maine.

“Anything that funnels those public tax dollars from our public schools is detrimental to our system of public education,” Leavitt said.

The Maine Policy Institute, a right-leaning think tank in Portland, submitted a brief in support of the plaintiffs with EdChoice, a national organization that advocates for school choice.

“We applaud the high court’s decision today striking down Maine’s sectarian exclusion,” Maine Policy Institute CEO Matthew Gagnon said in a statement Tuesday. “As the court reaffirmed today, it is not an Establishment Clause violation to allow children to receive subsidy to attend religious schools through the genuine exercise of choice on behalf of families.”

GLBTQ Legal Advocates & Defenders (GLAD) issued a warning that the ruling carries “major implications for the use of public funds” in the promotion of religious opinions in the U.S.”

“We should all be concerned about this ruling, which runs counter to decades of precedent saying that government funding could not be used for religious purposes and holds open the door to widespread use of taxpayer money to promote religious views,” Mary L. Bonauto, GLAD’s civil rights project director,  and Gary Buseck, GLAD senior adviser, said in a joint statement Tuesday.

 

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