Supreme Court VOIDS a Maine education program that offers tuition assistance for students to attend certain private schools, but excludes schools that provide religious education.
SCOTUS asserts that the exclusion of religious schools is unconstitutional.
CARSON, AS A RELATIVE AND NEXT FRIEND OF OC, ET AL. v.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 20–1088. Argued December 8, 2021—Decided June 21, 2022
Maine has implemented a tuition assistance program for parents who live
in school districts that do not operate their own high school
nor contract with a particular school in another district. under that
program, parents designate the secondary school they wish
child to be attended, and the school district forwards the payments to that
school to help cover tuition. Participating private schools
must meet certain conditions to be eligible for payment of tuition fees –
ments, including either accreditation from the New England Association-
tion of Schools and Colleges (NEASC) or Maine De-
Department of Education. But they may otherwise differ from Maine
public schools in various ways. Since 1981, however, Maine has limited
ited tuition assistance payments to “non-sectarian” schools.
The petitioners requested tuition assistance to send their children to Ban-
gor Christian Schools (BCS) and Temple Academy. Although both
BCS and Temple Academy are accredited by NEASC, the schools do not
are not considered “non-sectarian” and therefore are not eligible to receive tuition fees
payments under the Maine Tuition Assistance Program. The applicants prosecuted
Commissioner of the Maine Department of Education, alleging that
the “non-sectarian” requirement violated the free exercise clause and
the Establishment Clause of the First Amendment, as well as the
Fourteenth Amendment Equal Protection Clause. The neighborhood
The court dismissed the petitioners’ constitutional claims and rendered judgment
to the commissioner. The first circuit confirmed.
Judged: Maine’s “non-sectarian” requirement for general availability elsewhere
able tuition assistance payments violate the free exercise clause.
(a) The Free Exercise Clause of the First Amendment protects against “coercion or indirect sanctions upon the free exercise of religion,
not just outright prohibitions. Lyng c. Northwest Indian Cemetery
Protective Assn., 485 US 439, 450. The Court has recently applied this
principle in the context of the efforts of two States to deny
the capable public benefits from religious organizations. In the Lutheran Trinity
Church of Columbia, Inc. v. Comer, 582 US ___, the Court considered
a Missouri program that offered grants to eligible nonprofits
who installed shock-absorbing playing surfaces, but denied such
grants to any applicant who was owned or controlled by a church, sect,
or another religious entity. The Court held that the free exercise clause
did not permit Missouri to “expressly discriminate against[ ] against otherwise
eligible beneficiaries by excluding them from a public benefit only
because of their religious character. 582 United States, at ___–___. And in
Espinosa v. Montana Department of Revenue, 591 US ___, the Court
ruled that a provision of the Montana Constitution prohibiting the government
assistance to any school “controlled in whole or in part by any church, sect or
confession” violated the free exercise clause by prohibiting
lies to use scholarship funds otherwise available to religions
schools. 591 United States, at ___. “A state does not need to subsidize private education.
“, concluded the Court, “[b]but once a state decides to do so, it can
do not disqualify certain private schools just because they are religious.
Id., at ___. p.p. 6–8.
(b) The principles applied in Trinity Lutheran and Espinoza suffice
to solve this case. Maine offers its citizens a benefit: tuition assistance.
funding payments for any family whose school district does not provide
a public secondary school. Just like the wide range of non-profit organizations
Organizations Eligible to Receive Playground Resurfacing Grants at Trinity
Lutheran, a wide range of private schools are eligible to receive Maine
tuition assistance payments here. And like Trin-
ity, religious schools in this case are disqualified from
this benefit generally available “only because of their religious character-
actor. 582 United States, at ___. Likewise, in Espinoza, as here, the Court
considered a state benefit program that provided public funds for
port tuition fees in private schools and specifically cut
private religious schools of those who are eligible to receive these funds. Both
this and this program disqualify some private schools from advertising
lic funding “solely because they are religious. 591 United States, at ___. A law
who operates in this way must be subject to “the strictest control
lowercase.” Id., at ___–___.
Maine’s program cannot survive scrutiny. A neutral advantage
program in which public funds are donated to religious organizations by
the independent choices of private beneficiaries do not offend
the establishment clause. See Zelman v. Simmons-Harris, 536 US
639, 652–653. Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman so promotes
stricter separation of church and state than the Federal Constitution
requires. But the protesting interest of a State does not justify
acts that exclude some members of the community from another
of public interest generally available because of their ex-
exercise. p.p. 9–11.
(c) Attempts by the First Circuit to requalify the nature of
Maine’s tuition assistance program is not enough to single out this
case of Trinity Lutheran or Espinoza. p.p. 11–18.
(1) The First Circuit held that the “non-sectarian” requirement was
constitutional because the benefit was properly considered and not tuition
payments to be used in accredited private schools, but rather as funds
ing for “the rough equivalent of public school education as Maine
can legitimately demand to be secular. 979 F. 3d 21, 44. But the sta-
ute says no such thing. The statutory benefit is
education in a public or private school, chosen by the parent, without
suggestion that the “private school” must somehow provide a “public”
education. In addition, the differences between eligible private schools
to receive tuition assistance through the Maine program and a Maine pub
lic school are numerous and important. To begin with, private schools
do not have to accept all students, as public schools generally do.
Moreover, the free public education that Maine insists on providing
through the tuition assistance program is often not free, as some par-
fee-paying private schools charge several times the maximum benefit
that Maine is ready to supply. And the program taught in particular
ipating private schools need not even resemble that taught in the
Maine Public Schools.
The Key Way Participating Private Schools Are Required
however, to be like public schools in Maine is that they have to be secure.
lar. Maine can provide strictly secular education in its public
schools. But BCS and Temple Academy, like many other recipients,
ents of Maine Tuition Assistance Payments – are not public schools.
Maine has chosen to offer tuition assistance that parents can direct to
public or private schools of their choice. the Maine administration of
this benefit is subject to the principles of free exercise governing any
public benefit program – including the prohibition against denying the benefit
It is based on the beneficiary’s religious practice. p.p. 11–15.
(2) The Court of Appeal also attempted to distinguish this case from
Trinity Lutheran and Espinoza on the grounds that the funding re-
the restrictions in these cases were “religious discrimination based solely on status”.
nation”, while the provision challenged here “imposes a
constraint. 979 F. 3d, at 35, 37–38. Lutheran Trinity and Espinoza
concluded that the free exercise clause prohibits discrimination based on
of religious status. But these decisions never suggested that discrimination based on use is less offensive to the free exercise clause. This
case illustrates why. “[E]educate young people in their faith, inculcate
transmitting its teachings and forming them to live their faith are responsible.
abilities that are at the very heart of the mission of a private religious
school.” Our Lady of Guadalupe School v. Morrissey-Berru, 591 US
___, ___. In short, the prohibition of discrimination based on status
der free exercise clause is not a license to engage in the use-
Locke v. Davey, 540 US 712, doesn’t help Maine here. Eco-
the naval funds at issue in Locke were intended to be used “to prepare
ministry.” Trinity Lutheran, 582 USA, at ___. Locke’s reasoning
expressly turned on what he identified as “the
the interest of the state” against the use of “taxpayer funds to support the leadership of the church-
ers. 540 US, p. 722, 725. But “it is clear that there is no
and “substantial tradition” versus aid [private religious] schools”
it is “comparable”. Espinoza, 591 United States, at ___. Locke cannot be read
to generally authorize the state to exclude religious persons from
enjoyment of public benefits based on their anticipated religion
the use of benefits. p.p. 15–18.
979 F. 3d 21, reversed and dismissed.
ROBERTS, CJ, rendered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, KAVANAUGH and BARRETT, JJ., joined. BREYER, J., filed
a dissenting opinion, joined by Judge KAGAN, and to which SO-
TOMAYOR, J., joined all but Part I–B. SOTOMAYOR, J., filed a dissenting opinion.