Andrew Wimer
Andrew Wimer · September 14, 2021

ARLINGTON, Va.—More than 30 amicus (or “friend-of-the-court”) briefs have been filed in Carson v. Makin, calling for greater educational choice for parents and their children. Carson, which is being litigated by the Institute for Justice (IJ), is expected to set a landmark precedent when it comes to education reform. In the case, the U.S. Supreme Court will decide whether a state may exclude families from an otherwise generally available student-aid program simply because they send their children to schools that provide religious instruction. The Court is expected to hear argument in the case in late 2021.

In an earlier IJ case, 2020’s Espinoza v. Montana Department of Revenue, the Supreme Court held that states may not bar families from choosing schools in student-aid programs simply because of the school’s religious identity, or status. Yet, in Carson, the 1st U.S. Circuit Court of Appeals upheld Maine’s exclusion of religious schools from a state tuition assistance program for high school students. The 1st Circuit acknowledged that Espinoza forbids a state from excluding schools because of their religious status, but it nevertheless held that the Constitution permits a state to exclude schools based on the religious use to which a student’s aid might be put there—namely, religious instruction. In other words, the 1st Circuit held that although states may not exclude schools because they are religious, they are perfectly free to exclude schools because they do religious things.

The U.S. Supreme Court agreed to hear an appeal of the 1st Circuit’s decision, and on September 3, 2021, IJ filed its opening brief in the Supreme Court, demonstrating the constitutional irrelevance of the “use/status distinction” drawn by the 1st Circuit and arguing that Maine’s religious exclusion is just as unconstitutional as the exclusion the Supreme Court held unconstitutional in Espinoza. Late last week, some 33 amicus curiae, or friend-of-the-court, briefs were filed supporting IJ’s position. The briefs come from groups across the ideological, political and religious spectrums, demonstrating the depth of support for IJ’s position on educational choice programs.

Among the amici are:

Coalition of 18 States: Eighteen states, most of which have educational choice programs of their own, argue that “a State need not discriminate on the basis of religion to serve its undoubtedly compelling interest in educating children. Just the opposite, openness to partnering with religious schools furthers the States’ goals by providing an array of educational choices.” They add that “[f]ully including religious schools also protects the constitutional rights of a State’s citizens.”

Members of the United States Senate: Eleven members of the United States Senate note that throughout history, Congress has partnered with religious organizations to provide vital learning opportunities to American children. These efforts date back to the Northwest Ordinance of 1787; continued through the 19th century, when Congress financially supported religious education for Native Americans and freed slaves; and continue today, with the D.C. Opportunity Scholarship Program for low-income families in the District of Columbia.

Southern Christian Leadership Conference–Memphis Chapter: The Memphis Chapter of the Southern Christian Leadership Conference, founded by Dr. Martin Luther King, Jr. and other civil rights leaders in 1957, as well as a group of African-American community leaders from Memphis, survey the history of the 14th Amendment, which demonstrates “that the Equal Protection Clause is rooted in notions of religious as well as racial equality.” They note that “the federal government actively and directly funded religious schools alongside secular schools at the time the Fourteenth Amendment was passed and later ratified.” In fact, “[i]n 1866, the same Congress that passed the Fourteenth Amendment also instructed the newly created Freedmen’s Bureau to provide suitable education to newly freed slaves through the funding of private benevolent associations,” most of which were northern missionary societies.

Professor Michael McConnell of Stanford University:  Professor Michael McConnell, formerly a federal judge on the 10th U.S. Circuit Court of Appeals, is widely recognized as a leading authority on the Religion Clauses of the U.S. Constitution. His brief undertakes a comprehensive study of the history of the Free Exercise Clause, which makes clear that the clause, as originally understood, protects not only religious belief or status, but also religious conduct. Thus, he argues, there is no basis for the “use/status distinction” that the 1st Circuit relied on to uphold Maine’s sectarian exclusion. Professor McConnell’s brief also demonstrates how Maine’s exclusion requires intrusive religious inquiries by the state that result in inter-religious discrimination in violation of the Establishment Clause.

Defense of Freedom Institute for Policy Studies: Authored by David Boies, who litigated the successful constitutional challenge to California’s Proposition 8 banning same-sex marriage, this brief argues that the “semantic distinction between status and use makes no constitutional difference.” The brief notes that the U.S. Supreme Court has rejected any comparable distinction in other contexts—for example, laws that discriminate based on sexual orientation, race, or sex. The brief urges the Court to reject the distinction when it comes to religion, as well, explaining that “[f]or an antidiscrimination protection to have any real force, it must reject such meaningless distinctions.”

Innovative Private Schools:  Build UP (which operates a workforce development model to provide low-income youth in Alabama and Ohio with career-ready skills through paid apprenticeships), Kuumba Preparatory School for the Arts (an African-centered private school located in southeast Washington, D.C.), and Blaze Kids Academy (which is in the process of designing and building a faith-based all-year-around boarding facility for students from rural parts of the United States) were “founded on the principle that different students learn differently, and that it is the responsibility of educators to embrace students’ unique capacities as a tool for learning, not an obstacle to it.” The 1st Circuit’s decision, their brief argues, has “the perverse effect of blocking funding from those students who are most likely to benefit from innovative schools, and it will chill creativity and experimentation by schools that fear such experimentation may result in their students losing access to critical tuition assistance.”

Partnership for Inner-City Education, Council of Islamic Schools in North America, and National Council of Young Israel: This interfaith brief is on behalf of organizations that operate, represent, and support elementary and secondary schools in the Catholic, Islamic and Jewish traditions. “Central to these schools’ religious and educational missions,” the brief stresses, “is the integration of faith throughout all aspects of their educational programs, making the religious status/religious use distinction employed by the First Circuit below both unworkable and discriminatory.”

Institute for Justice Senior Attorney Michael Bindas, who will argue Carson before the Supreme Court, said, “We are grateful for the overwhelming support we’ve received from so many states, public servants, churches, civil rights organizations, schools, think tanks, and religious organizations of all denominations and faiths. As their briefs make clear, Maine’s exclusion of ‘sectarian’ options from its tuition assistance program is discriminatory, unconstitutional and ultimately harmful to the very schoolchildren that Maine purports to help. We are confident the U.S. Supreme Court will see it the same way.”