High Court Poised to Back Tax Dollars at Religious Schools

(Bloomberg) -- The U.S. Supreme Court’s conservative wing signaled it is poised to strengthen the rights of parents to use public dollars to pay tuition at faith-based schools. 

Hearing arguments Wednesday in Washington, a majority of the justices cast doubt on a Maine program that covers the cost of private education in areas without public schools but bars use of the funds at institutions that promote religion.

Justice Brett Kavanaugh said two families challenging the exclusion of religious schools “are seeking equal treatment, not special treatment.” Chief Justice John Roberts and Justice Samuel Alito each said the state was discriminating on the basis of religious beliefs. 

“We have said that that is the most basic violation of the First Amendment religion clauses, for the government to draw distinctions between religions based on their doctrine,” Roberts said. 

The case gives school-choice advocates a chance to reinforce a line of Supreme Court rulings that have backed voucher programs and, to at least some degree, required states to include religious schools. 

Under the Maine program, jurisdictions that lack their own public schools can arrange to send students to a nearby institution or instead can pay tuition at a public or approved private school chosen by the parents. State policy requires the private schools to be nonsectarian, meaning they don’t teach through the lens of a particular faith.

‘Free Public Education’

The state says its system is a means of providing a public education in sparsely populated areas, not an effort to subsidize private schooling or create the type of “school choice” programs other states have set up.

“The tuition program at issue here is intended solely to ensure that those few children who live in districts that have not made appropriate schooling arrangements are still able to receive a free public education,” said Christopher Taub, Maine’s chief deputy attorney general.

Of the state’s 180,000 K-12 students, about 4,500 attend private schools through the program, the vast majority at 11 schools known colloquially as “town academies.” Maine says it and Vermont are the only states that use private schools in place of public schools, rather than as an alternative under a school-choice program.

The state’s position drew support Wednesday from the court’s liberals, including Justice Sonia Sotomayor.

“These parents are put to the same choice that every other parent in Maine is put to: Either get a free public secular education or pay for your religious training,” Sotomayor said. “They’re being treated as everybody else is.” 

But the court’s conservatives suggested they agreed with the families that Maine was violating the Constitution’s free exercise clause.

Roberts pressed Taub to explain why a school run by a religious group could receive funds if wasn’t trying to instill its religious values but not if it incorporated religion into its teaching.

Alito described a hypothetical school that espoused what he said were Unitarian Universalist principles, including opposition to discrimination. Taub said that school would be “very close to a public school.”

“Well, then you really are discriminating on the basis of religious belief,” Alito said.  He added a moment later: “They can have a school that inculcates students with their beliefs because those are OK religious beliefs, but other religious beliefs, no.”

Christian Schools

The lawyer for the families, Michael Bindas, said that under the program, “you can get your statutorily entitled benefit to attend the public or private school of your choice, or you can exercise your free exercise right. You cannot get both.”

The program is being challenged by David and Amy Carson, who say they are entitled to tuition assistance for sending their daughter to Bangor Christian School, and Troy and Angela Nelson, who say they haven’t been able to afford to send their children to Temple Academy, another Christian school.

The families are seeking to extend rulings favoring the use of taxpayer funds to pay religious school tuition. In 2002, a 5-4 court ruled that voucher programs don’t violate the constitutional separation of church and state even if most of the money goes to religious schools. In 2020, the court in 2020 voted 5-4 to reinstate a Montana scholarship program used primarily to send children to religious schools.

A federal appeals court said the Maine program was constitutional because it excludes schools based on the material they teach, rather than on their status as religious institutions. Although the Supreme Court has relied on that so-called use/status distinction in past cases, religious-rights advocates say it lacks any constitutional basis and should be discarded.

The case, which the court is scheduled to decide by late June, is Carson v. Makin, 20-1088.

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