MAKIN and CARSON give big breakdown as Supreme Court CANCEL Maine education program that provides tuition assistance for students to attend certain private schools but excludes schools that provide religious instruction

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.





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.

p.p. 6–18.

(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-

grounded discrimination.

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,


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.

Jerry B. Hatch