Maine is a rural state where some of their primary school districts do not offer secondary schools and therefore a tuition assistance program was created where government funds can pay for a child’s education at a private school of the parents’ choice. Originally, this included religious-run private schools.
Then in the early 1980s, the Attorney General of Maine wrote an opinion saying Maine’s tuition assistance program could not include religious schools because it violated the First Amendment’s Establishment Clause.
Which brings us to the most recent Supreme Court term and their opinion in Carson v. Makin. The Court says, 6 to 3, that the Maine Attorney General got it wrong.
Chief Justice Roberts wrote the opinion for the Court. He concludes, “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
This is about school choice and parental involvement. Here, the Court is saying that parents are the ones in charge of their child’s education. Consistent with Maine’s Constitution, Maine’s tuition assistance program is designed to allow parents to choose which school is best for their child. The program allows parents to send their kid out-of-state to a school with a curriculum nothing like Maine’s public-school curriculum, or even to a school in a foreign country. It’s up to the parent. Roberts writes, “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”
Justice Breyer’s dissent claims “Maine thus excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals.” But the Court finds that as discrimination. Roberts writes, “The prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”
What Breyer and the other two dissenters should appreciate more is that the schools that “teach and promote religious ideals” are teaching the principles that parents want their child to learn. The state is not forcing any of those religious teachings on anyone against their will, nor is endorsing one specific religion. In fact, it’s just the opposite. Those religious teachings are to students in schools that their parents chose.
Maine’s tuition assistance program empowers parents to make the educational decisions for their children, which is good policy, and much more relevant to this discussion, constitutional.
