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.]
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