July 23, 2021

On July 2, IJ—and parents who desperately want greater educational opportunity for their children—received some very welcome news from the U.S. Supreme Court: The Court announced that it would take up IJ’s challenge to Maine’s exclusion of religious options from the state’s educational choice program. This marks IJ’s 10th trip to the high court—and a chance to resolve one of the remaining big constitutional questions around educational choice.

In Maine, many small towns operate “tuitioning” programs. If a student lives in a town that neither operates its own public high school nor contracts with a school to educate its resident students, the town pays tuition for the student to attend the school of their parents’ choice—public or private, in-state or out-of-state.

There is one choice, however, that parents may not make: any school that provides religious instruction. In other words, the state will—and does—pay for students to attend some of New England’s most elite secular prep schools, but it takes off the table a Jewish day school, Islamic school, or local Catholic parish school.

Readers may recall that IJ’s 2020 victory in Espinoza v. Montana Department of Revenue dealt with a similar kind of limit to parents’ options in an educational choice program. In that case, the Court ruled decisively that states cannot pass a generally available educational choice program and then prevent parents from choosing a religious school as part of the program. Nevertheless, the 1st U.S. Circuit Court of Appeals upheld Maine’s religious exclusion.

That’s because, according to the 1st Circuit, Montana’s exclusion in Espinoza turned on the religious status or identity of the excluded schools, whereas Maine’s religious exclusion turns on the religious use to which a student’s benefit would be put: namely, whether the schools teach religion. 

Seem like hairsplitting? It is. But to the 1st Circuit, this religious “status” vs. religious “use” distinction was a distinction with a constitutional difference. The court readily acknowledged that excluding schools because they are religious is unconstitutional, but it held that excluding schools because they do religious things is just fine. We trust the Supreme Court will see things differently.

Our victory in Espinoza last summer paved the way for greater educational opportunity for America’s schoolchildren. The decision, coupled with parental frustration at the way the public school establishment has handled the pandemic, resulted in a spate of new and expanded choice programs in the 2020–2021 legislative session. But opponents of choice are a dogged bunch, and they have been seizing on the 1st Circuit’s warped reasoning to try to defeat those efforts and deny greater parental choice in education. 

IJ won’t let that happen. We will defend and expand our victory in Espinoza so that children can access the schools that will best meet their unique, individual needs. For some, that may be a school with a great STEM curriculum; for others, one with a strong arts program or language immersion classes. And for others still, it may be a school that provides religious instruction alongside its general education program. Parents know better than anyone what will work best for their kids, and IJ will ensure that the government cannot deny them that choice.

Michael Bindas is an IJ senior attorney.

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