In largely rural Maine, some school districts don’t have enough students to justify creating a public high school. So, in order to guarantee that each child in the district is able to get a high school education, some of the state’s school districts make arrangements with public or private schools to take their students. Other districts allow students to choose where they want to attend school — whether inside or outside the state, or even outside the country. In either case, the state pays the student’s tuition. The one requirement is that the private school in which the student enrolls is “non-sectarian,” that is, that it doesn’t have a religious curriculum.
Last week the Supreme Court heard oral argument in Carson v. Makin, a case brought by parents of students who were denied tuition benefits to send their children to religious-affiliated schools under the tuition grant program, who contend that the Maine law violates the First Amendment.
Two recent cases in the Supreme Court make clear that states cannot use a school’s religious status as a reason to exclude the school from a generally available state program. And in one of those cases, the court held that under the free exercise clause of the Constitution a state may not prohibit students in a school choice program from selecting a religious school, if they are permitted to choose other private schools.
But Maine argues that the religious schools are excluded from the tuition program not because they are religious, but because they do religious things, including religious instruction.
So, the argument goes, while the state may not refuse to use money in ways that benefit schools simply because they are religious, it should be able to refuse to provide funds that will be used by the schools for religious education. Maine takes this position notwithstanding the fact that the excluded sectarian schools provide a fully compliant secular education program in accordance with state standards.
Based upon the questions and comments of the justices during last week’s argument, most observers anticipate that the court will uphold the parents’ challenge to Maine’s exclusionary practice. And although the decision will only have a direct effect on fewer than 5,000 students in Maine, it is likely to have a significant impact on education funding decisions nationwide.
Carson v. Makin has been called one of the “sleeper cases” on this year’s Supreme Court docket. It is a case that didn’t attract all that much attention as it made its way to the court, but is one that could have important and far-reaching implications on free exercise of religion issues, on issues relating to religious discrimination and on the important question of how states and school boards approach the issue of nonpublic school funding. We anxiously await the decision.