On June 21, 2022, the United States Supreme Court ruled in favor of student opportunity to choose a religious education with a state-funded tuition assistance program! Carson v. Makin concerned the oldest school choice program in the nation, Maine’s Town Tuitioning Program, which launched in 1873. The program offers tuition assistance for families living in school districts that do not have a secondary school to attend a private school of choice. While historically the program allowed students to choose religious education with their tuition dollars, in 1981 the state unjustly limited eligibility for the program to non-religious schools, restricting an eligible family’s ability to choose the education that best fits their child’s schooling needs.
In Carson, the U.S. Supreme Court ruled that state law restricting Maine’s program to only non-religious private schools violated the Free Exercise Clause of the Constitution by excluding schools from participating in the program solely because they are religious. This decision affirms the Court’s previous rulings in Trinity Lutheran v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), that the state cannot discriminate against religious organizations from a widely accessible public benefit due to their religious exercise.
The U.S. Constitution and its First Amendment protect coherence between a person’s beliefs and their actions. Any suggestion that Carson’s affirmation of a families’ ability to use their child’s tuition dollars at religious schools transgressed a “boundary between church and state” is incorrect in its application, by both the standards of the First Amendment and historically by its original author, Thomas Jefferson and his “wall of separation” statement in his Letter to the Danbury Baptists (1802).
Carson joins several U.S. Supreme Court cases that vindicate education opportunity through school choice. In its landmark decision, Zelman v. Simmons-Harris (2002), the Court recognized that the Establishment Clause did not prohibit faith-based schools from participating in a voucher program that is “entirely neutral with respect to religion.” In the Ohio program, the state provided assistance directly to families, and their share of scholarship funding was then “backpacked” with their child to their school of choice, thereby making the program neutral to religion.
In Zelman’s majority opinion Chief Justice Rehnquist stated:
“Under such a program, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients, not the government, whose role ends with the disbursement of benefits.”
In other words, the use of public dollars in voucher programs—and other school choice programs that use state-funds— where families determine where to use aid did not constitute an establishment of religion by the state.
While school choice is repeatedly protected on the federal level, many state constitutions still prevent families’ ability to choose the best education option for their child with their share of education funding, due to notorious 19th century Blaine Amendments. , Born of bigotry, Blaine Amendments were used to prevent Catholic schools from using the public funding allocated to public “common schools,” which were Protestant at the time. U.S. Senator James G. Blaine from Maine attempted to pass a U.S. Constitutional amendment blocking public funding from Catholic schools. While his federal attempt failed, 37 states adopted Blaine Amendments into their state constitutions restricting public funding from “sectarian institutions.” In the 19th century, “sectarian” meant “Catholic,” but Blaines are now being interpreted to include all religious education.
The question Carson sought to answer concerned a state’s ability to explicitly exclude faith-based schools from their school choice programs and whether doing so violated the Free Exercise clause of the First Amendment.
In the previous cases Trinity Lutheran Church v. Comer and Espinoza v. Montana Department of Revenue, the Court ruled that excluding schools from a public benefit solely because they are religious was unconstitutional under the Free Exercise Clause.
In Trinity Lutheran, the Court ruled that a Missouri program providing funds to organizations for resurfacing playgrounds could not exclude a preschool and daycare operated by Trinity Lutheran Church because of its religious status. The Court determined that disqualifying recipients from an otherwise public benefit solely because of their religious character was to impose “a penalty on the free exercise of religion.”
In Espinoza, the Court affirmed Trinity Lutheran and held that a no-aid provision that prevented families from using a tax credit scholarship at a religious school was unconstitutional under the Free Exercise Clause.
In his opinion in Carson, Chief Justice Roberts referenced Trinity Lutheran and Espinoza, stating:
“In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
The Court affirmed that the Maine program actively discriminates against religious institutions, saying:
“…there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion.”
The Court’s decision refused the argument that distinguishes status-based discrimination from use-based discrimination. The opinion makes clear that discriminating against religious schools because they practice and teach their faith is just as much a violation of the Free Exercise Clause as discriminating against religious schools because of their status as religious institutions.
Drawing from the 2020 case Our Lady of Guadalupe School v. Morrissey-Berru (2020), the opinion affirms religious schools’ freedom to educate students in the faith, stating:
“[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”
The Supreme Court therefore affirmed the right of religious schools to practice their faith in all aspects of their education.
Ultimately, Carson upheld religious liberty in education by prohibiting discrimination against religious organizations. This decision will likely lead to increased education opportunity for families across the nation!