Religious Liberty Win – Supreme Court Strikes Maine Law That Funded Secular But Not Religious Private Education
Ruling: The state does not have to fund private education, but once it decides to fund private education, it can’t discriminate against religious private schools. Let the hysterical overreactions begin!
No Supreme Court decisions yet in the big Second Amendment and Abortion cases, but a significant religious freedom case involving Maine was handed down.
We covered the case only once before, “Critical Race Theory” Becomes Issue During Supreme Court Argument In Maine School Funding Case:
On Wednesday, December 8, 2021, the U.S. Supreme Court heard oral arguments in a case challenging a Maine policy which provides state funds for students who do not have a local public secondary school to attend private school, but not private religious school. The funds go to the students, not directly to the schools.
The case is Carson v. Makin (Docket for 20-1088) You can listen to the oral argument audio, and read the argument transcript.
Here’s how Scotusblog described the issues in the case issues and background:
The dispute, Carson v. Makin, centers on the system that Maine uses to ensure that all school-aged children in the state have an opportunity to receive a free public education. With fewer than 180,000 students in kindergarten through 12th grade, distributed over 260 school districts, not all school districts operate 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 and pay their tuition. However, the Maine program only allows tuition payments to go to private schools that are “nonsectarian” – that is, schools that do not provide religious instruction.
I noted that there seemed to be a conservative majority to overturn the law:
There certainly seems to be a conservative majority, maybe even all six, to rule consistently with prior cases that all other things being equal, religion must not receive discriminatory treatment. It’s a theme we also saw in pandemic shut down cases, where SCOTUS overturned more harsh treatment of churches as compared to similarly situated secular establishments….
I also noted this exchange involving Justice AlitoHere’s the exchange from pages 74-78 of the transcript (emphasis added):
JUSTICE ALITO: Well, on that point, suppose a school inculcates a purely materialistic view of life. Would that be — would that be okay?
MR. TAUB: So, I mean, this is something that we — that we’ve thought about, and I think there — there are other aspects of — of what a school could do that would be inconsistent with a public education. Now what the Maine legislature had in front of it was it had a set of — of sectarian schools and it had a set of secular schools, and — and the one thing that the legislature knew is that it did not want to have schools that inculcate religion as part of the public education program. Now it’s possible that, you know, down the road some school might pop up that is teaching something else, not religion but something else, say, Marxism or Leninism or, you know, white supremacy. Clearly, those kinds of schools would be doing something completely inconsistent with a public education.
JUSTICE ALITO: But, as of now, that would not prohibit a parent from getting funding to send a child to one of those schools?
MR. TAUB: So, be — be — because those are hypothetical situations that the legislature has never had to confront, it hasn’t addressed that in the legislation. But there’s no doubt, Your Honor, that if a white supremacy school tried to participate in Maine’s program, the legislature would swiftly act to say, no, you know, beyond being religiously neutral, you also can’t teach principles of — of — of hatred.
JUSTICE ALITO: I understand that. But, as of now, the only thing that you want to make sure that the schools that are covered by this cannot do is that they can’t inculcate religion —
MR. TAUB: Yeah, I mean — I mean —
JUSTICE ALITO: — even if it’s — you know, even if it’s a religion that promotes tolerance of all religious beliefs, if it’s religiously based, no?
MR. TAUB: Again, I mean, I don’t want to quibble with — with words, but it’s not just that it’s religiously based. It’s that it’s instilling religion in the children who attend that. And — and that is because that is the defining characteristic and I think this Courthas recognized that that’s a defining characteristic of a public education. And so — so that is the thing that the legislature has controlled for because that’s what actually exists on the ground. We actually have schools that instill religious beliefs. We — we don’t have schools that are instilling Leninism or white supremacy.
CHIEF JUSTICE ROBERTS: Justice Sotomayor?
JUSTICE KAGAN: But just to follow up on that point, you’re confident that that would — that kind of school would not be fundedbecause — a white supremacist school, because it’s outside the bounds of your program, is that right?
MR. TAUB: I mean, yes, Your Honor. I — I think it’s — it’s — it’s unfair for — for the — for a legislature to be expected to legislate against every hypothetical outlandish situation that could come forward. So it’s incredibly unlikely that we would ever have a white supremacy school applying to become part of our public school program. But knowing what I know about Maine and our legislature, that school would — there — a way would be found to ensure that that school is not allowed to participate.
***
JUSTICE ALITO: Would you say the same thing about a school that teaches critical race theory?
MR. TAUB: Whether that school would be eligible?
JUSTICE ALITO: Yeah.
MR. TAUB: So I think that that is something that the legislature would have to look at. I mean, that one’s closer because, frankly, I don’t — I don’t really know exactly what it means to teach critical race theory. So I think — I think the Maine legislature would have to look at what that actually means. But — but I — I will say this, that — that if — that — that if teaching critical race theory is — is — is antithetical to a public education, then the legislature would likely address that.
That’s a long wind-up to the Opinion just released, with Chief Justice Roberts writing for the majority, with Breyer, Kagan, and Sotomayor dissenting:
Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment….
Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. In order to provide an education to children who live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.
The dissents are wrong to say that under our decision today Maine “must” fund religious education. Post, at 7 (BREYER, J., dissenting). Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it. Post, at 4 (SOTOMAYOR, J., dissenting). The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in Espinoza, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 591 U. S., at ___ (slip op., at 20)….
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. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
Note the language that the state does not have to fund private education, but once it decides to fund private education, it can’t discriminate against religious private education. Expect see a lot of overwrought reaction that ignores this distinction. Let the hysterical overreactions begin!
[Note: “Schools” changed post-publication in text and headline to “education” because the funding does not go directly to schools.]
MORE TO FOLLOW
Legal Analyst Jennifer Rodgers claims the conservative justices are tearing down free speech by siding with religious liberty."[T]his court is elevating the religious aspects of the First Amendment above others," she whines. "It's all breaking down." pic.twitter.com/0OMARwUxTS
— Nicholas Fondacaro (@NickFondacaro) June 21, 2022
"Today, the Court leads us to a place where separation of church and state becomes a constitutional violation."
And there it is. Separation of church and state is UNCONSTITUTIONAL now, according to the theocrats.
— Elie Mystal (@ElieNYC) June 21, 2022
Remarkably & stunningly, even for this right-wing majority, this decision completely vitiates the establishment clause and, with it, the separation of church & state, a core constitutional principle that has bound this country together since its founding https://t.co/YeECgA87uB
— Randi Weingarten ☮️🇺🇦 (@rweingarten) June 21, 2022
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Comments
Hopeful ruling. Now let’s see if they let Dobbs out, or if they chained it, and it’s never leaving the building.
There should be a 3rd option for voting.. 😉
1) Randi had to weigh in because there are no teachers unions in private schools to brainwash kids into progressive dogma or groom them with drag queens
2) they all seem quite fixated on white supremacy when the only people i saw burning, looting and pillaging the last few years were BLM and Antifa
I am sort of ambivalent on this decision. It’s a good thing that your tax dollars are going to a school that supposedly doesn’t teach government propaganda (woke crap) but at the same time those dollars could go to a muslim school that may teach a strange form of chemistry and physics.
Or any islam at all….. Toxic.
That is so far fetched from the reality of how a private school operates.
The viable locality of having a private school in the state of Maine in an area which would have enough students to support such a school would have to have parents who would opt for such a school would be like the odds in winning the Powerball, possible but not likely.
I was not aware that the USSC rendered local decisions that could not be applied to other localities. I need to look up the word ‘precedent’ as it applies to legal decisions made by the highest court in the land.
Liberty’s a tricky thing.
The solution, of course, is the get the state the hell out of funding education. It’s unconstitutional and leads to ideological capture.
Man, I wish.
Unfortunately, a lot of the states admitted to the union after the civil war have an actual constitutional requirement to fund education.
For example, here in Arizona, admitted during the “progressive era,” the constitution demands :
A horrendous risk to freedom, as we belatedly see.
My personal champion, Tom Jefferson, was unfortunately a great booster of public schooling. I’m sure his heart was in the right place, but he didn’t foresee the dangers. If he were alive today and saw the current crop of ragamuffins pulling down his statues and obliterating his name from the venerable institute that he himself founded, I’d like to believe he would accept it as proof enough to alter his former recommendations.
States can decide to fund or not fund, as they wish. The US Constitution has no provision for funding schools, as it’s not a federal function. The Department of Education is itself unconstitutional.
The department is not unconstitutional. Congress is explicitly authorized to create whatever departments it likes. Some of what it does is likewise not unconstitutional. But if Congress stuck to its enumerated powers the DOE would have very little to do. Then again, the same is true of most departments.
“States can decide to fund or not fund, as they wish.”
Yes, but the difference in danger between a state government and a federal government is one only of degree, not of principle.
It’s not unconstitutional. States are entitled to fund pretty much anything they like, including food and education. Only Congress is limited to enumerated powers — which it regularly exceeds. Madison said he could not lay his finger on that clause in the constitution that authorizes Congress to appropriate money for the relief of poverty. But Congress even in his day ignored him. States, however, are certainly authorized to do so, and all states have done so since they were founded.
Not disagreeing with you, just additionally reminding everybody that the CRT-infested schools have so far almost all been chartered and funded by states, not by the federal government. Separation of school and state requires separation from all levels of state.
This is the most serious argument against the school choice movement. Once state funding of private schools and even home schooling is established, the state gains the ability to regulate them. All it takes is secular progressive democrats winning one election.
This is why some Christian schools in Florida refuse to accept Florida funding.
What funding mechanism would you suggest?
That’s a red herring. States already have the ability to regulate private schools and home schooling. Funding does not increase that ability. Sometimes states choose to refrain from regulating schools that don’t accept funding, but they don’t have to, and if more schools took advantage of that “loophole” they would probably close it.
In what universe do you live where the govt only regulates entities that the govt funds?
Where I live the govt regulates everything—whether the govt funds it or not.
So, don’t send your kids there.
The point is that it is not the government making that decision, the parents are, and they are not subject to the establishment clause.
I look at the numbers as an overall win. I really don’t care what Christians or Muslims want in their children’s education. Allowing parents to direct their tax dollars towards how they want their children educated is a good thing.
After all, Christians are still a majority in the country. And let’s face it, they tend to be pro-Constitution and anti-neo Marxist.
The money should be sent to the students for their parents to decide but we cant having something getting in the way of progressive teachers unions and government, can we? How is Biden going to force boys and girls to shower together under threat of withholding school lunch money if the schools dont take federal dollars for that?
Huge win for the school choice movement! Fund the student not system and the ensuing competition will either drive out bad policies in govt schools or these low performing govt schools will collapse as they are abandoned by Parents who want the best school possible for their children.
And let me put in a plug for my goombahs at the Institute for Justice, who ramrodded this case as part of a carefully-planned chain of liberty activism:
Yes. Back when I used to have spare cash, IJ was a regular recipient of some of it. Hopefully once again, one day.
I give to IJ.
Breyer dissents, joined by Kagan and (in part) Sotomayor. Sotomayor has a separate dissenting opinion.
“Round Up The Usual Suspects!”
https://www.youtube.com/watch?v=vtSmfws0_To
Rule only applies in districts where no secular school exists. Thus, the ruling is fairly meaningless and inconsequential because school districts with no secular schools are few and far between.
tell me you’re not from Maine (where we still have unorganized territories) w/o actually saying you’re not from Maine and have no clue what you are talking about.
even now MOST towns/school admin districts do NOT have their own high schools so this ruling carries over to there. in these cases town charters provide legal remedies for parents to sent kids to high schools w/i certain distances no matter the type of school.
I went to a private school (formerly catholic, john bapst memorial) and the town paid for transport for me and others as the school admin district did NOT have a high school.
this continues today,
and I mean today, like as in this friggin month for my family and friends.
so yeah tell me again how this is meaningless.
I give to IJ.
Bullshit. It applies wherever the district pays for private schools, which generally means wherever it doesn’t provide a suitable school of its own. And it’s part of a general rule that whenever a government entity hands out money to private entities it may not discriminate against religious entities; it must treat them exactly the same as it does secular ones. So, e.g., the Salvation Army is entitled to exactly the same funding as any other organization that does the same things it does. The government can’t make “being secular” a requirement for receipt of funding.
🤦♀️
Tell me you’re a hack lawyer with the same keen legal mind as Sotomayor without telling me what a cluelees hack you are….
Your lack of understanding is boundless. So is this decision as it relates to govt funds to 3rd party; the govt can’t impose secularism as a requirement to receive funds.
If a govt bids out a contract for temp housing for the homeless it won’t be able to exclude a religious group from bidding on the contract. Many other examples.
I lived in an unorganized town in VT for several years that had no school. Heck, a couple of towns kids could choose what high school they went to. One towns kids could choose 2 in VT or one in NH. Its not as uncommon as you would think
from maine.
for few years (grade 3 and 4) went to bangor christian academy, maybe 1 hour a day of classroom was religion (and that inclided lunch time) the rest was pure academics.
in public school at grade 6 was reading james fenimore cooper and the like, in 8th grade tested at senior in college reading comprehension level.
my math stuff sucked but….in 11th grade my ASVAB scores were better than 99% of country and could have taken any MOS in any service I wanted.
sadly, when I joined Army at age of 17 under delayed entry program, I chose poorly.
whatever.
people like to think every class if just bible readings.
its not.
it was harder than public school.
grr forgot to mention time line.
contract with Army signed in 1985
Same time frame. Navy offered me everything including Nuclear Propulsion on a sub. Air Force and Marines same. Of course i choose to be an Army Paratrooper. Hey, it was fun
only in public schoool (today) is every class CRT readings
made an error, the bangor christian was 2 and 3 and back in public in 4th with a teacher from my church (not the same as school church) that encouraged my reading.
course she encouraged me to join the church choir when I was in 6th grade so…..her motives are suspect….as I killed the choir.
not in a good way….
Finally, a decision of the majority justices who ruled by defining the Constitution as written, It gives promise that at days end today and the upcoming 9 days they will also adhere to the same conclusions using the same precedent of constitutional application.
Religion is a philosophy of behavior. Secular schools are few and far between.
Wow. I actually understood this one. It’s both subtle and true.
So by that definition atheism is a religion. If a school does not recognize a supreme being, it is atheistic. Of course, you could say you are an agnostic, and neither believe nor disbelieve, but you must believe you are an agnostic to do so, therefore you have a belief system about a supreme being.
1. We all have a belief system about a supreme being, since none of us can have a knowledge system about one.
2. Having one and teaching one are two entirely different things. All of my teachers also had genitals and personal relationships; none taught about them. Unlike today.
As a Behaviorist I strongly disagree with your definition
Education cannot be a purely unbiased pursuit because everything about it, including what and what not to teach, involves a value judgement.
“…the state does not have to fund private education, but once it decides to fund private education, it can’t discriminate against religious private education.”
These reason is obvious: People of religious faith are taxpayers, too, and must have equal access to tax dollars they were required, under penalty of law, to pay into a secular government.
Lower courts and scotus have ruled time and time and time and time again on this issue of viewpoint discrimination. EX. from 2017: Supreme Court rules for Missouri church in dispute over public funding access
https://www.foxnews.com/politics/supreme-court-rules-for-missouri-church-in-dispute-over-public-funding-access
Yet, these egregious anti-religious bureaucrats who viewpoint discriminate against people of faith are never held to account, punished, or otherwise made to pay dearly for their perennial abuse against people of faith in blatant disregard for clear court precedence.
However, let one homosexual be looked at askance by a small business, and that small business owner will have the full weight of the government marshaled against him into bankruptcy.
Like ol’ Barry said, “Punch back twice as hard” – or this will never end.
This wasn’t a bureaucrat, it was the Maine state legislature. The act authorizing the funding explicitly says it’s only available to “nonsectarian” schools; the Supreme Court long ago said states don’t have to do that, but this is the first time it has said they can’t. And it took years of effort by IJ and others to achieve this result.
I stand corrected, but the broader principle applies, if not as much, and even more so, to an elected legislature whose JOB it is to know the law.
Prior to 1981, parents could also direct the tuition assistance payments to religious schools. Indeed, in the 1979–1980 school year, over 200 Maine students opted to attend such schools through the tuition assistance program. App. 72. In 1981, however, Maine imposed a new requirement that any school receiving tuition assistance payments must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” Me. Rev. Stat. Ann., Tit. 20–A, §2951(2). That provision was enacted in response to an opinion by the Maine attorney general taking the position that public funding of private religious schools violated the Establishment Clause of the First Amendment. We subsequently held, however, that a bene- fit program under which private citizens “direct government aid to religious schools wholly as a result of their own genuine and independent private choice” does not offend the Establishment Clause. Zelman v. Simmons-Harris, 536 U. S. 639, 652 (2002). Following our decision in Zelman, the Maine Legislature considered a proposed bill to repeal the “nonsectarian” requirement, but rejected it. App. 100, 108.
1981 stuff drove me back to public schools.
where they had to bring in tutors to meet my reading skills.
that pissed the district off.
the 7th grade bookmobile didn’t carry stuff I read.
hardy boys was fun (1+ hours to read) but it wasn’t deerslayer/last of mohicans/etc.
when I brought in my second editions of those for book reports teachers complained and failed me.
so district forced teacher changes for me.
nest up the first edition (from granddad) Tom Swift books I enjoyed and teachers had issues with that as no other students could read them.
whatever.
I still read 8-10 books a week. kindle unlimited became my best friend.
but I still HATE Ivanhoe first edition.
don’t get me started on what a 7th grader reading Thoreau did to teachers.
and fk walt whitman….
I’d rather live in a tree in New York than read him.
Wow. I wish I could read that fast. Even before the ‘net started consuming so much of my time, I could rarely manage more than a book a week.
Loved Tom Swift. I don’t understand on what grounds your teacher could have failed you for that.
didn’t fail me just gave me crap as was books other students could not read. bookmobiles and school libraries did not carry them.
Read closely, the First Amendment does not prohibit an establishment of religion. It prohibits making a law about an establishment of religion. Many states continued to have state religions. I’m not in favor of government religions – that tends to result in the corruption of the favored religion. However, using “the establishment clause” to deny government funding on the basis of religion is despicable.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”
The first amendment does prohibit an establishment of religion. But it only applies to Congress, not to the states. It’s the 14th amendment that imposes on the states the fundamental rights that the Bill of Rights imposed on Congress, and the Supreme Court has long held that the freedoms protected by the first amendment are such rights. So as of when the court said that (early 20th century, I think), states could no longer have their own established churches. Since by that time none did anyway, it didn’t make many waves.
Clarence Thomas is the only jurist I know of who has pointed out that while most of the first amendment protects individual liberties, the establishment clause does not; there is no individual right not to have an established church. Accordingly, he holds that that one clause is not incorporated into the 14th and does not bind the states. I think he’s right, but 8 justices say otherwise, and there’s no prospect that he’ll prevail on that question in his lifetime, if ever.
Huh? The decision says explicitly “Under that
program, parents designate the secondary school they would like their
child to attend, and the school district transmits payments to that
school to help defray the costs of tuition.”
This is just a matter of semantics. It’s like complaining that Social Security will send money to your bank, but not to you. The citizen decides what school “his” money goes to, the state doesn’t.
When did “so” become a placeholder sound standing in for “well,” or “um” or “uh”?
Oh, for the days when grammar school teachers hammered kids for stammering in any form. Just because you’re using a sound that resembles a word, doesn’t make the resulting sentence sensical.
I’m not American so I don’t have a close understanding of The Establishment rule that the Left is saying this decision breaches but surely Maine was breaching this by disallowing religious schools?
What I don’t understand is how the dissenters actually justified their dissenting opinion? This seems absolutely clear cut. Main is not being forced to provide religious instruction (which would be wrong), they’re just being required to give equal treatment to individuals that decide to go to religious schools where no state option exists.
Surely, the outrage should be directed at the dissenting Justices who don’t seem to have any Constitutional basis for their opinion?
It’s the grand tradition of disenfranchising Christians and Jews by calling their beliefs “religion” while denying that the religious nature of secularism. It has become so well indoctrinated into the American public that most Christians and Jews also believe it.
There is no such thing as religion-free education. Worldview determines course and content selection.
https://blogs.cornell.edu/envirobaer/publications/why-a-functional-definition-of-religion-is-necessary-if-justice-is-to-be-achieved-in-public-education/
No, it wasn’t breaching the establishment clause, it was breaching the free exercise clause. Those are separate clauses, and the way the courts have treated them for about the past century is that they’re in tension. The establishment clause meant that governments could not do anything that would be seen as endorsing religion; the free exercise clause meant that they could not deliberately hinder religion either. Directly funding religious schools was seen as prohibited by the establishment clause; about 20 years ago the supreme court said no, it was not prohibited, but it was also not required. Now it says it’s required, because refusing the funding effectively punishes people for exercising their religion.
“Sectarian” is a swear word which bigots use as a way to disenfranchise Christians.
https://blogs.cornell.edu/envirobaer/publications/the-high-courts-s-word/
Catholics, actually. The Blaine Amendments, which this decision finally takes down, were passed specifically to harm Catholics. At the time public schools were all unofficially but effectively Protestant, because that’s what most people were.
The bigoted “Blaine” amendments and laws are finally being toppled after doing tremendous damage.
Though we still have folks who support the spirit of the Blaine amendments. Even on the right we have folks who should know better that complain about support for entities affiliated with religions that aren’t Christian or Jewish.
This is a great decision that properly restores the importance of the Free Exercise Clause, and helps many parents who would send to a parochial school, or yeshiva but are intimidated by the costs.
The answers during oral argument were weak, should have stressed the tension between the establishment clause and the free exercise of religion clause. It is arguably an establishment violation because the state collects taxes of religious and agnostic or atheist people and then under the decision those funds are used to support religious education. That they pass through parents arguably should not matter as the funds are earmarked. The state can avoid this decision by forcing districts that don’t operate high schools to consolidate with districts that do or to contract out with other districts to do the educating.
You are wrong in every respect. There is no tension between the two clauses, and the entire idea that there is tension was a wrong turn that people made in the 20th century, largely out of hostility to religion. Most of the blame falls on Klansman Hugo Black, for introducing the phrase “separation of church and state” into US jurisprudence. There is no such clause in the constitution, and it has no place in US law.
No, it is not arguably an establishment violation. The fact that it rests entirely on the parents’ decision completely rules out such a violation. The court has been extremely clear about that for the past 20 years or more. Couldn’t have been clearer. The only new things in this decision are that (1) the fact that the money is paid directly to the schools doesn’t matter; and (2) not only does such funding not violate the establishment clause, but not providing it violates the free exercise clause.