Educational Choice—and IJ—Has a Good Day at the U.S. Supreme Court

 On December 8, 2021, for the 10th time, IJ argued at the U.S. Supreme Court. The case, Carson v. Makin, has direct consequences for programs that empower parents, rather than government, to direct their children’s education. 

Readers may remember that Carson is a follow-up to IJ’s victory at the high court in 2020 in Espinoza v. Montana Department of Revenue. At issue is a Maine school choice program in which participating families can choose to send their kids to public or private schools, whether in state or out of state. But they cannot select any school that Maine deems “sectarian”—specifically, any school that provides religious instruction.  

At a time when public dissatisfaction with the public education status quo is at an all-time high, giving parents a free and independent choice among an array of educational options should be a no-brainer for a state with an educational choice program. However, Maine argued—and the 1st U.S. Circuit Court of Appeals held—that although IJ’s Espinoza victory prohibits Maine from denying a parent’s choice of school because the school is religious, Maine is still free to deny a parent’s choice of school because of the religious things the school does (read: teach religion). 

 IJ argued that this is a distinction without a constitutional difference and—while it is always perilous to make predictions based on oral argument—we are cautiously optimistic that the justices will agree. As Justice Gorsuch pointedly asked counsel for the United States, which argued in support of Maine, “Does the government see a basis for distinguishing between a tax on persons who wear yarmulkes as opposed to a tax on Jewish persons?” 

By the time the argument finished, we felt optimistic that, after 30 years, we had conquered what may be the last remaining significant constitutional impediment to educational choice. If the Court agrees with us, the result will not simply be more educational options for students in Maine. It will put to bed one of the final remaining legal barriers to educational choice programs nationwide.

Michael Bindas is an IJ senior attorney.