Amy Howe 12/8/2021
Conservative justices scoff at Maine’s exclusion of religious schools from tuition-assistance program
The Supreme Court heard oral argument on Wednesday in a challenge to a Maine program that pays tuition for some students to attend private school when their own school district does not operate a public secondary school. Two Maine couples argue that the state’s refusal to provide funds for students to attend schools that provide religious instruction violates the Constitution, and after nearly two hours of oral argument the court’s conservative justices appeared to agree. Although the lawyer representing Maine on Wednesday emphasized that the court’s decision would directly affect only a small number of Maine families, a ruling for the parents could mean that state and local governments that opt to subsidize private schools would be required to allow families to use taxpayer funds to pay for religious schools.
At issue in Carson v. Makin is the system that Maine uses to give school-aged children the opportunity to receive a free public education. Because parts of the state are rural and sparsely populated, not all school districts run their own secondary schools. Instead, some districts make arrangements with specific private schools or other public schools to take their students. And other school districts allow their students to choose their own public or private school – either in Maine or out of state – and pay their tuition. However, the state only allows tuition payments under the program to go to private schools that are “nonsectarian” – that is, schools that do not provide religious instruction.
Arguing on behalf of the parents who want to be able to use funds from the state’s tuition-assistance program to send their children to religious schools, lawyer Michael Bindas told the justices that “religious schools teach religion. It is part of what they do. It is also part of who they are.” Referring to the 2020 decision in Espinoza v. Montana Department of Revenue, in which the court held that a state cannot exclude families or schools from participating in programs to provide public funding for private schools because of a school’s religious status, but did not decide whether states could exclude families or schools when the money would be used for religious purposes, Bindas stressed that the state’s refusal to allow his clients to participate in the tuition-assistance program is unconstitutional regardless of whether the state discriminates based on the schools’ religious status or because they teach religion.
Representing Maine, the state’s chief deputy attorney general, Christopher Taub, countered that the tuition-assistance program does not discriminate at all. Instead, he told the justices, it is intended to provide students who live in school districts without their own secondary schools with the equivalent of the education that they would have received in a public school – which means, he said, a “religiously neutral” one.
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https://amylhowe.com/2021/12/08/conservative-justices-scoff-at-maines-exclusion-of-religious-schools-from-tuition-assistance-program/
