(ANALYSIS) Recently, the U.S. Supreme Court released a decision clearly stating that religious schools cannot be excluded from state school choice programs. This means, in short, a major potential change for the future of private faith-based education.

This ruling effectively negates provisions in 37 state constitutions that exclude the provision of government funds in religious schools. This decision in no way obligates states to open funding to private and faith-based schools, but it does make clear that where government funding is available to secular private schools, faith-based educational institutions cannot be excluded only because of their religious identity.

This is a cautiously paramount shift for school choice advocates and those who believe the Constitution requires religious schools to be available on an equal basis with secular private schools. For those concerned about government funding of religious education, this win has generally been interpreted as a judicial ruling along the same conservative ideological lines as the wins on school prayer, abortion and gun rights at the Supreme Court this term. 

The 6-3 decision, decided along ideological lines, held that the state of Maine’s tuition assistance program - which blocked religious private schools while including public schools - violated the Free Exercise clause of the Constitution. 

The facts

Maine’s Constitution requires that students have access to publicly funded education. Yet, this mandate is practically difficult to carry out. Over half of Maine’s 260 school districts do not run public middle and high schools. To address this problem, a Maine law requires that, in order to guarantee free public secondary education for all the students in the state, these school districts either:

(1) contract with a secondary school — whether a public school in a nearby SAU (school district)  or an “approved” private school — for school privileges, id. §§ 2701-2702, 5204(3), or (2) “pay the tuition ... at the public school or the approved private school of the parent's choice at which the student (from their SAU) is accepted,” id. § 5204(4).

The Maine statute further requires the school be a “nonsectarian” — code word for nonreligious — educational institution. In 2018, parents filed a lawsuit against the state of Maine, claiming that this requirement, which prohibits families from choosing religious schools from this generally available student aid program, violated the free exercise clause under the First Amendment of the U.S. Constitution. 

The plaintiffs, the Carsons and the Gillises, choose to send their children to the private, nonprofit Bangor Christian School. The plaintiffs stated they were exercising their religious freedom in selecting this educational institution “because the school’s worldview aligns with their sincerely held religious beliefs and because of the school's high academic standards.” Moreover, this school is fully accredited by the New England Association of Schools and Colleges.

Also listed as plaintiffs in the suit are the Nelsons, who send their daughter to a private secular school but would prefer to send her to a private faith-based academy with high academic standards. They said in the suit that they cannot afford to send more than one child to this school because it is excluded from the public student aid program and therefore ineligible for tuition reimbursement. 

The Supreme Court’s decision

The plaintiffs were denied relief at the Maine district and appellate court levels. Given the Supreme Court’s ruling in Espinoza v. Montana Department of Revenue in 2020, these Maine parents appealed their case to the highest level. In Espinoza, the state of Montana prohibited the use of scholarships for sectarian schools. As Notre Dame law professor Rick Garnatt commented at the time, Espinoza did much to begin to correct a longstanding misinterpretation of the First Amendment notion of separation of church and state:

A misunderstanding about the true meaning of church-state separation caused courts and legislators alike to insist on discriminatory treatment of religious schools and the families who choose them. 

In Carson v. Makin, the state of Maine argued that its statute excluding sectarian schools from participation in generally available student aid programs is constitutional. Maine contended that its law distinguishes between sectarian or religious status — simply being affiliated with a religion — and “religious use.”

A federal appeals court upheld the state’s decision, noting that the Espinoza precedent only held that the exclusion of sectarian schools based on their sectarian status was unconstitutional but did not resolve the legal question of whether broadly available student aid programs could exclude religious schools for religious use. Religious use, in this context, means the formation of students in a religious manner, through elements such as faith-shaped curriculum, worship activities, etc.

Writing for the majority, Chief Justice Roberts stated in the June 21 decision, “Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.” Justice Roberts elaborated that, despite the manner in which the assistance and limitations are explained, Maine’s tuition assistance program functionally eliminates the ability of otherwise qualified high schools because of the exercise of their religion. The court further held:

Maine has chosen 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 public benefit program — including the prohibition on denying the benefit based on a recipient’s religious exercise.

Justice Breyer, writing for the dissenters, stated of the majority opinion that their decision was blind to “the play in the joints” between the Establishment Clause, which forbids the government from “making (any) law respecting the establishment of religion” and the Free Exercise Clause, mandating the government pass no legislation violating the free practice of faith. Breyer emphasized how “that play gives States some degree of legislative leeway.” His dissenting opinion further elaborated that the this “play in the joints” at intervals permits states to deny access to government assistance from religious organizations without undermining the Free Exercise Clause. Breyer concluded, “In my view, Maine’s nonsectarian requirement falls squarely within the scope of that constitutional leeway.”

The dissenters further made the distinction between a case like Trinity Lutheran, where a preschool was denied aid through a generally available state-funded aid program for playground resurfacing on the sole basis of their ownership by a religious institution, or their religious status. Unlike that case, the dissenters argue, in this case that the state of Maine is not wholesale excluding private schools associated with religious institutions (religious status). Rather, Breyer wrote, “Maine thus excludes schools from its tuition program not because of its religious character but because the schools will use funds to teach and promote religious ideals.

What to watch for

What does this decision mean, for everyday American families across the country feeling homeless in public schools and underresourced in navigating any other options? Could it mean hope? Possibly. But this decision presents us an opportunity, not a guarantee or an entitlement. How we see the opportunity will make the difference. 

Do we choose to frame it as a win for a conservative court, working to bring back government funding for religious schools, prayer in public schools and a stripping of anything that smacks as secular from the public square? That is one interpretation that is not without merit. But it is not the one, not the whole truth, if truth at all.

Could we see it as an opportunity to actually grapple with the legitimate and real challenges that school choice presents, but that school choice proponents have long been hesitant to address? School choice benefits those who have the finances, time and relational capacities to engage in educated choice making. It is not a given. In reality, school choice tends to benefit families who know how to navigate the systems in which these decisions are made. In practical terms, school choice often leaves those at the margins in failing public schools. These students left behind are disproportionately students of color, and/or students from less socioeconomically privileged families. 

But, if we choose to, this would be a conversation worth having. What would it take to truly level the playing field and not simply remove the legal barriers from parents in a pluralistic society making the best educational decisions for their children, but help to proactively build the civil society structures that made it possible? Would that look like cultivating extra government or private funds to help create more options for parents of Muslim families who would love to send their children to local Muslim schools, but none exist? Would it look like working with local businesses or philanthropists to turn the vacant historic Black church into a thriving school and community center? 

As the education expert Charles Glenn has stated: “The mandatory and monopolistic ‘common school’ so much praised since the days of Horace Mann as the crucible of democratic citizenship can no longer function as it did when it was the expression of a coherent local community but is instead a shopping mall of competing messages with no moral core, where the overriding virtue of tolerance ‘precludes schools’ celebrating more focused notions of education or of character.”

Chelsea Langston Bombino is a believer in sacred communities, a wife and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.