In a boon to private school choice advocates, the Supreme Court on Tuesday ruled that Maine’s school voucher program, which bars religious schools from participating, is unconstitutional – a decision with far-reaching implications that stands to loosen restrictions on the use of public education dollars for religious schools.
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In a 6-3 ruling, Chief Justice John Roberts, in writing for the majority, held that Maine’s program violates the constitutional guarantee to practice religion free from government interference. Because the benefits hinge on whether a school is religious, he wrote, the program "effectively penalizes the free exercise" of religion.
“Maine’s decision to continue excluding religious schools from its tuition assistance program,” Roberts wrote, “promotes stricter separation of church and state than the Federal Constitution requires.”
At issue in Carson v. Makin is a school voucher program in Maine that allows families who live in rural areas that do not have a designated high school to enroll their children in a “nonsectarian” school of their choice, which excludes religious schools. The plaintiffs in the case argued that the law unfairly excludes religious schools and violates their First Amendment rights.
The state’s lower courts disagreed, finding that Maine was within its rights to limit the tuition assistance program. But the Supreme Court’s ruling on Tuesday undoes that.
In coming to their decision, Roberts and his conservative colleagues drew heavily on Trinity Lutheran v. Comer and Espinoza v. Montana Department of Revenue – two recent decisions that similarly parsed the constitutionality of public education funds flowing to religious entities and concluded that states cannot exclude religious schools from a general available program.
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“As we explained in both Trinity Lutheran and Espinoza, such an interest in separating church and state ‘more fiercely’ than the Federal Constitution,” Roberts, “‘cannot qualify as compelling’ in the face of the infringement of free exercise.”
“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” he concluded. “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.”
Though the program Maine operates is tiny – roughly 7,000 students live in an area without a designated high school – the high court’s decision effectively establishes that states offering money to private schools have to allow religious schools into those programs and it expands the constitutionality of public funding for religious uses.
"This is a thunderclap for education freedom,” Tommy Schultz, CEO of the American Federation for Children, said in a statement. “With today's ruling, the rights of American students have been resoundingly confirmed. Now, legislators in every state must take action to provide as many options as possible to families in their state.”
Justice Stephen Breyer, in authoring the dissenting opinion joined by Justice Elena Kagan and in part by Justice Sonia Sotomayor, argued that the majority’s decision dismantles the separation of church and state.
“The key word is ‘may,’” Breyer wrote. “We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.”
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“What happens once ‘may’ becomes ‘must,’” he asked in the dissent. “Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”
In a sharply worded opinion that drew from her dissent in the Trinity Lutheran case, Sotomayor wrote: "What a difference five years makes. In 2017, I feared that the Court was 'lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.' Today, the Court leads us to a place where separation of church and state becomes a constitutional violation."
The ruling was widely expected given the Supreme Court’s conservative majority, and backlash was swift among public school supporters and religious freedom advocates who raised concerns over public funding backing schools that discriminate against LGBTQ employees and children.
“Forcing American taxpayers to fund private religious education – even when those private schools fail to meet education standards, intentionally discriminate against students, or use public funds to promote religious training, worship, and instruction – erodes the foundation of our democracy and harms students,” Becky Pringle, president of the National Education Association, said in a statement.
“The Supreme Court’s job is to interpret the Constitution, not invent doctrines to promote radical education policy outcomes,” she said. “We are witnessing one of the most extreme Supreme Courts in modern history rewrite the most basic social commitments of our society – that publicly-funded education should be free and open to all without discrimination.”
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