A few days ago, the Supreme Court announced its decision in Carson v. Makin, a case involving state support of religious education in rural Maine. The short version is that states which offer any sort of support for private schooling or alternatives to state-run public schools cannot deny equivalent support to religious institutions claiming a comparable role. These institutions need not follow state curriculums or abstain from indoctrination. They may pick and choose their students on any basis they like and may teach what they like, however they like, and still get paid by the state for each student they choose to accept.
The language of the decisions does not specifically prohibit states from instituting some general academic standards; the two schools in question were both on the “approved” list of state options. (They “count” as schools for purposes of students earning a diploma but did NOT qualify for state reimbursement due to their religious focus.) Then again, the Court showed little interest in the quality of education provided by any of the schools discussed in this case. Unlike in many previous cases (particularly Zelman v. Simmons-Harris, 2002), which validated an Ohio “vouchers” program largely based on the apparent underperformance of public schools in the state and established “parent choice” and the constitutional “breaker switch” between government funding and religious application), the issue isn’t even discussed.
I know, I know – “academic quality” isn’t a First Amendment issue. Religious freedom IS. Nevertheless, previous Courts have often demonstrated at least token concern for outcomes – for the likely impact of various decisions either way. This particular Court is so enamored with taking “free exercise” to Chuck E. Cheese’s that it’s left “establishment” locked in the back seat without even cracking the windows.
Also, I may have strong feelings about this one.
I wrote about this case a few days ago and linked to some very good breakdowns of the decision and its likely impacts. Here, I’d like to highlight a few specific elements from the majority opinion, written by Chief Justice John Roberts. This may end up broken into several parts depending on how carried away I get.
Most of the cases cited by Roberts, as well as those referenced by Justices Breyer and Sotomayor, are covered in some detail in “Have To” History: A Wall of Education, which I’m sure you’ve all recently ordered and read in preparation for this term. If so, you know that when I’m writing for publication, case summaries are relatively balanced and my tone largely rational. My goal is to offer useful references and accessible explanations to a wide possible audience.
That’s not always the case here on the blog. You have been warned.
A Little Background…
The First Amendment to the U.S. Constitution contains six specific protections, two of which are related to religion. The “Establishment” Clause says government cannot support one religion over another or promote the idea of religion over non-religion; the “Free Exercise Clause” says government cannot target or hinder a specific religion or religion in general. These first two clauses are often in tension with one another, but taken together clearly indicate a desire by the Framers that government do its best to avoid promoting OR hindering religious beliefs or behaviors.
The phrase “a wall of separation between Church & State” comes from a letter by President Jefferson to the Danbury Baptists; while not part of the Constitution, it’s been cited so often by various Supreme Court decisions that it might as well be. There are a handful of influential voices, however, who really hate this metaphor and believe it misrepresents the intent of the First Amendment.
The Fourteenth Amendment, passed shortly after the Civil War, requires states to recognize most of the same rights guaranteed on the federal level by other amendments – or at least that’s how it’s come to be understood. The application of principles found in the Bill of Rights to state or local government via the Fourteenth Amendment is known in legal circles as “incorporation.” It’s why the Supreme Court will hear a case involving Maine citizens and Maine public schools when it involves a fundamental right like those covered in the First Amendment.
The Fourteenth Amendment also explicitly prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws.” This one can be a bit redundant, but it’s often thrown in with whatever specific complaints are at the heart of cases like this one to emphasize the idea of unfair treatment – in this case, against the families wishing to sent their children to religious high schools.
Alright, let’s get to it. These excerpts of the Supreme Court’s written opinion have been edited and formatted for readability. I’ve done my best to maintain appropriate context and intent. You can read the full decision as originally written here.
The Majority Opinion (Some Of It, Anyway)
Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett:
Maine’s Constitution provides that the State’s legislature shall “require . . . the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” In accordance with that command, the legislature has required that every school-age child in Maine “shall be provided an opportunity to receive the benefits of a free public education” and that the required schools be operated by “the legislative and governing bodies of local school administrative units.” But Maine is the most rural State in the Union, and for many school districts the realities of remote geography and low population density make those commands difficult to heed. Indeed, of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own.
Maine has sought to deal with this problem in part by creating a program of tuition assistance for families that reside in such areas. Under that program, if an SAU neither operates its own public secondary school nor contracts with a particular public or private school for the education of its school-age children…
Get used to seeing “SAU” for “school administrative units.” This is a term used to avoid getting bogged down by any distinctions between “districts” or “counties” or “school corporations,” etc.
Notice the root of the issue here is that Maine doesn’t actually have public high schools operating in something like half the state. There are logistical reasons for this (who knew Maine was THAT rural?), but it’s an important issue because it means parents in those areas are effectively required to utilize “school choice” if they want their children to receive an education (and they’re not up for homeschooling). Once “parent choice” is in the mix, it’s much more difficult for the state to limit which institutions can and can’t take those “vouchers” – in whatever form the funding takes.
To be “approved” to receive these payments, a private school must meet certain basic requirements under Maine’s compulsory education law. The school must either be “currently accredited by a New England association of schools and colleges” or separately “approved for attendance purposes” by the Department. Schools seeking approval from the Department must meet specified curricular requirements, such as using English as the language of instruction, offering a course in “Maine history, including the Constitution of Maine . . . and Maine’s cultural and ethnic heritage,” and maintaining a student-teacher ratio of not more than 30 to 1… In schools that qualify for the program because they are accredited, teachers need not be certified by the State and Maine’s curricular requirements do not apply…
Note that Roberts is summarizing the existing legislation in Maine, not issuing requirements. He covers a few more details and points out that the state does not automatically exclude schools associated with a religious institution but instead considers their mission and methods. In other words, Maine apparently made a distinction between schools which happened to be religious and those actively promoting specific doctrines, values, and opinions of others as part of their daily efforts.
In 2018, petitioners… alleged that the “nonsectarian” requirement of Maine’s tuition assistance program violated the Free Exercise Clause and the Establishment Clause of the First Amendment as well as the Equal Protection Clause of the Fourteenth Amendment. Their complaint sought declaratory and injunctive relief against enforcement of the requirement…
While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza v. Montana Department of Revenue (2020)…
I told you you should have read the book, didn’t I? Here’s the short version of Espinoza…
Montana provided tax credits to donors who funded “Student Scholarship Organizations,” which would in turn help pay private school tuition for qualifying families. (Some states like to further obfuscate these by calling them “educational savings accounts” or some other such nonsense.) Because Montana’s state constitution prohibits the use of public money to support religious institutions (a provision common to many state constitutions and known informally as the “Blaine Amendment”), the Montana Department of Revenue declared that the program must exclude religious schools. The Court determined that excluding religious schools from the program violated the Free Exercise Clause of the First Amendment. Any program available to other institutions must be available to religious groups on the same terms, no matter what state constitutions say.
Because smaller, less oppressive government means crushing state autonomy whenever it serves the agenda of entrenched economic, cultural, and political power.
The First Circuit offered two grounds to distinguish Maine’s “nonsectarian” requirement from the no-aid provision at issue in Espinoza. First, the panel reasoned that, whereas Montana had barred schools from receiving funding “simply based on their religious identity – a status that in and of itself does not determine how a school would use the funds” – Maine bars BCS and Temple Academy from receiving funding “based on the religious use that they would make of it in instructing children.” Second, the panel determined that Maine’s tuition assistance program was distinct from the scholarships at issue in Espinoza because Maine had sought to provide “a rough equivalent of the public school education that Maine may permissibly require to be secular but that is not otherwise accessible.”
Lawyers arguing for Maine had two basic choices: insist that the Court overturn its own recent precedents, or insist that this case was significantly different than those cases. Apparently, they focused on the latter and persuaded the lower courts of this distinction. The First Circuit determined that unlike in cases involving “school choice” or “vouchers” or “educational savings accounts” or whatever, Maine COULD limit where its tax dollars were being spent because the schools in question were serving as proxies for traditional public schools.
The Maine Problem
In my humble opinion, this was the weak link in the state’s reasoning. Maine unwittingly offered activists a technical crack in a much larger dam, and this ideologically driven Court is perfectly happy to play sledgehammer. That’s why conservative talking heads around the country are able to shake their heads in smug amusement at the “overreaction” by the left to this decision. They know the dam is coming down. We know the dam is coming down. The Court has been looking for the opportunity to bring the dam down for years now and said as much to anyone paying attention. In the meantime, however, we’ll have to endure the mockery and faux pity of those working so hard to knock down this particular wall as they laugh at us for thinking the dam is about to come down when of course that’s just silly and not what this case says at all.
Don’t let it get to you; in a few years, when the wall is largely washed away, these same folks will rewrite the timeline in such a way as to either condemn the wall having been built in the first place or to blame us for knocking it down while those on the right worked vigorously to defend it. Might as well roll with it, baby.
Of course, a crack doesn’t require elimination of the entire wall. Had they wished, the Court could have taken a far more moderate approach. We’ll pick up there next time.