SCOTUS hears oral arguments in Maine-based religious freedom, school choice case


On Wednesday, the U.S. Supreme Court heard oral arguments in Carson v. Makin, a case involving religious freedom and what type of schools can qualify to receive public funding under Maine’s town tuitioning program.

Maine’s town tuitioning program allows parents to enroll their child in any public or private school of their choice if they reside in a town that does not operate schools at the child’s grade level, and the town does not have an existing contract with another district to educate its resident students. 

However, state law prevents families from sending their child to a private school through the program if the school is sectarian. The statute says the prohibition on sending money to religious schools is “in accordance with the First Amendment of the United States Constitution.”

But the Carson and Nelson families, the plaintiffs in the case, disagree. Both families live in school administrative units (SAUs) that do not have public high schools. More than half of the SAUs in Maine have no public secondary school.

David and Amy Carson reside in Glenburn, a town that does not have a public high school. Their daughter, who is now in college, attended Bangor Christian Schools (BCS) beginning in kindergarten. When she approached high school age, the Carsons wanted to keep her in those schools. But BCS is not eligible to receive public education dollars under current law due to the sectarian exclusion. 

The Carsons could have sent their daughter to John Bapst Memorial High School, formerly a Catholic school that closed and reopened as a nonsectarian school following the 1983 passage of the statute currently at the center of the family’s lawsuit, which is a private school in Bangor and eligible to receive funding under the state’s tuitioning program.

However, the family was happy with the education their daughter was receiving at BCS and opted to pay the tuition out-of-pocket rather than transfer to John Bapst. BCS has also indicated it would not accept students who receive subsidized public tuition dollars through the tuitioning program, an issue which was raised multiple times in oral arguments on Wednesday.

Arguing on behalf of the Maine Department of Education, Maine Chief Deputy Attorney General Christopher Taub stated that the plaintiffs lacked standing in the case because their school of choice would not accept their daughter if she were able to participate in the program. Malcolm L. Stewart, a deputy solicitor general for the U.S. Department of Justice, also argued on behalf of Maine.

“Under well-established principles, the Petitioners do not have standing because, even if they were to prevail, they would receive no redress for their alleged injury.”

Taub also stated that, contrary to their claim, the Carsons’ religious beliefs were not being discriminated against. The reason schools that promote a particular faith are not eligible for Maine’s public tuitioning program, Taub argued, is simple. 

“Maine has determined that, as a matter of public policy, public education should be religiously neutral. This is entirely consistent with this Court’s holdings that public schools must not inculcate religion and should instead promote tolerance of divergent religious views,” said Taub.

He characterized the Carson’s desire to allow religious schools to be eligible to participate in Maine’s public tuitioning program as an “entirely different benefit” to educational instruction to instill religious belief at taxpayer expense.

The state sought to cast Maine’s case as different than previous cases considered by the Supreme Court, such as Espinoza v. Montana Department of Revenue, in which the court ruled a state law that allows for general funding of education cannot exclude religious schools.

Justices Clarence Thomas and Elena Kagan also asked Michael Bindas, an attorney with the Institute for Justice representing the plaintiffs, whether the case has standing. At issue was the unwillingness of the school identified as the plaintiffs’ choice to participate in the state’s tuitioning program. Kagan asked whether there were other schools in the state that aligned with the plaintiffs’ religious beliefs.

“[Y]ou have to remember that this sectarian exclusion has been on the books for four decades. So, to the extent there’s a dearth of religious schools that are acceptable to the plaintiff in that situation, that’s probably attributable to the fact that Maine has been discriminating against schools for four decades,” Bindas argued.

The subject of whether allowing public dollars to go to religious schools would create strife was raised several times. Justice Stephen Breyer worried that “if the state must give money to the schools, they’re going to get into all kinds of religious disputes.”

Bindas responded by arguing that Maine’s tuitioning program funds families, not schools. 

“And not a penny can go to any school but for the genuine private choice of individuals. As this Court held in Zelman, as this Court held in Locke, that private independent choice severs the link between government funds and religious instruction,” Bindas said. 

In Zelman v. Simmons-Harris, the court ruled that using school vouchers for private, religious schools did not violate the Establishment Clause. In Locke v. Davey, the court ruled that excluding religious majors from publicly-funded college scholarships did not violate the First Amendment’s Free Exercise clause.

Factoring into the debate over whether including religious schools in the tuitioning program would create strife was the history of the statute. Prior to its implementation in the 1980s, religious schools were able to participate in Maine’s tuitioning program. Concerns about whether exclusion of religious schools was based on a flawed understanding of the Establishment Clause led the state to review the statute in 2003 following the court’s decision in Zelman, but the statute ultimately remained in place.

Bindas argued that the prior inclusion of religious schools in Maine’s tuitioning program shows strife would not be an issue.

Taub also faced questions about Maine’s characterization of the case and his description of how schools that apply to be a part of the program are scrutinized. Throughout his argument, Taub stated several times that Maine would likely fund religious schools so long as any portion of their curriculum related to faith were not compulsory. 

Thomas questioned Taub about the state’s definition of a “rough equivalent” of a public education.

Taub explained that the state’s view is that the “most significant and defining feature” of a public education is that it is sectarian and religiously neutral. He further described religious neutrality as the defining feature of a public school and received pushback from Justice Thomas, who questioned the idea that religious neutrality is the reason parents select the schools to which they send their children and asked how this contributes to the state’s contention that private schools participating in Maine’s tuitioning program must provide the “rough equivalent” of a public education.

Chief Justice John Roberts presented a hypothetical case in which a religious school with a doctrine of community service and a religious school that required indoctrinating children into the faith were being considered for participation in the tuitioning program and which would be likely to receive funding under the program. 

Taub stated that a school with a doctrine of community service would likely receive funding while the one that required religious indoctrination would not. 

Roberts questioned whether this was discrimination on the basis of religious belief.

“No, I would not say that. Religions can have whatever belief they want, but if they want to take a part in Maine’s tuition program, the education service they have to provide has to be the service that Maine is purchasing,” Taub said.

But Roberts took issue with Taub’s response.

“So it is the beliefs of the two religions that determines whether or not their schools are going to get the funds or not,” said Roberts. 

Roberts further said that for the government to draw distinctions between the doctrines of different religions is “the most basic violation” of the free exercise clause in the First Amendment.

Bindas’ rebuttal concluded by stating that Maine’s argument had recast the facts of the case. Bindas stated that under the statute, a religious school can be like a public school, unless “it teaches a single religion class or presents material that someone in Augusta determines to be presented through the lens of faith.”


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