Supreme Court Ruling Permits Public Funding for Religious Schools

On Tuesday, June 21, 2022, the United States Supreme Court issued a ruling that requires Maine to provide tuition assistance payments to nonsectarian schools. Justice Sonia Sotomayor, dissenting, wrote that “the Court leads us to a place where separation of church and state becomes a constitutional violation.”

Maine’s tuition assistance program allows parents to designate the public or private secondary school they wish their child to attend if school districts do not operate a secondary school of their own. The school district then transmits payments to the school to assist with the costs of tuition. Private schools are eligible to receive payments so long as the schools are nonsectarian. In order to receive the tuition assistance payments, private schools must either be currently accredited by an independent association or approved by the Maine Department of Education. The nonsectarian requirement was adopted in 1981 in response to the Supreme Court’s ruling in Zelman v. Simmons-Harris. A sectarian school is one “that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”

At issue in Carson v. Makin is whether this restriction violates the Free Exercise Clause of the First Amendment. The two Maine families challenging the nonsectarian requirement had children attending separate Christian private schools in Maine. Both of the sectarian schools in question met all other requirements for the tuition assistance program. Writing for the majority, Chief Justice John Roberts wrote that the principles in Trinity Lutheran Church of Columbia, Inc. v. Comer and Epinoza v. Montana Department of Revenue resolve this case. Because the tuition assistance program is a state benefit providing public funds that specifically carves out private sectarian schools from receiving such funds solely due to their religious character, strict scrutiny applies. In applying strict scrutiny, Chief Justice Roberts wrote that the Maine’s attempt to exclude religious school from the program “promotes stricter separation of church and state than the Federal Constitution requires.”

Justice Sotomayor and Justice Stephen Breyer wrote dissenting opinions. Justice Elena Kagan joined Justice Breyer’s dissent. Justice Breyer dissented on the grounds that the majority’s opinion “pays almost no attention to the words in the first Clause [of the First Amendment] while giving almost exclusive attention to the words in the second.” Further, Justice Breyer pointed out that the majority opinion does not recognize the legislative leeway between the two Clauses that “sometimes allows a State to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion.” Justice Sotomayor joined Justice Breyer’s opinion on most parts but wrote separately to admonish the path the Supreme Court has taken with regard to the Religion Clauses: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

Additional Reading

U.S. Supreme Court backs public money for religious schools, Reuters (June 21, 2022)

Carson v. Makin, 596 U.S. ___ (2022)

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