Arlington, Virginia—May states bar parents from participating in a student-aid program because they send their children to schools that provide religious instruction, or does that violate the Constitution?  That is the question the Institute for Justice (IJ) has asked the U.S. Supreme Court to resolve as it appeals a federal court ruling that discriminates against parents who select such schools.

In 2020, the Institute for Justice earned a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. The Court held that discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.

Despite that ruling, the 1st U.S. Circuit Court of Appeals, in October 2020, upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, which was created in 1873, the state pays for students who live in towns that do not maintain a public school to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Until a flawed legal opinion by the state’s attorney general in 1980, parents were free to exercise their independent choice to select religious schools as one of their options. Now, however, the school that parents select for their child must be “nonsectarian,” which the state interprets to mean a school that does not provide religious instruction.

According to the 1st Circuit’s decision upholding this exclusion, the exclusion turns not on the religious “status” of the excluded schools, but rather on the religious “use” to which a student’s aid would be put—that is, procuring an education that includes religious instruction. In other words, the court held that although Espinoza prohibits Maine from excluding schools because they are religious, it can prohibit parents from choosing schools that do religious things.

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Institute for Justice Senior Attorney Michael Bindas. “Parents deserve the right to choose the school that is best for their children, whether it’s a school that focuses on STEM instruction, offers language immersion, or provides robust instruction in the arts. Maine correctly allows parents to choose such schools—or virtually any other school they think will best serve their kids. But the state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”

“Religious discrimination is religious discrimination,” Bindas said. “By allowing nominally religious schools to participate but excluding schools that actually provide a religious curriculum, Maine is making governmental decisions about how religious is too religious. Government should not have that power. It violates the Religion Clauses and Equal Protection Clause of the U.S. Constitution.”

“In student-aid programs like Maine’s, parents—not the government—choose the schools their children will attend,” said IJ Attorney Arif Panju. “If parents believe a school that provides religious instruction is best for their child, the state should not be allowed to deny them that choice.”

There is a significant split of authority among courts across the nation on this issue. The 6th and 10th U.S. Circuit Courts of Appeals have held that government may not bar families participating in student-aid programs from choosing schools that provide religious instruction. The Vermont Supreme Court and now the 1st U.S. Circuit Court of Appeals, however, have upheld such religious exclusions.

“The Court should grant this case and resolve this issue once and for all,” Bindas said. “Whether there is a constitutionally significant difference between discrimination based on ‘religious status’ and discrimination based on ‘religious use’ is a profoundly important question, especially in the context of student-aid programs—programs that operate on the private choice of individuals. In such programs, any religious use of a benefit should be attributable to the individual recipient—the parent—and not to the government. States should not be permitted to withhold an otherwise available education benefit simply because a student would make the private and independent choice to use that benefit to procure an education that includes religious instruction.”

Maine’s exclusion of religious schools harms families like the Carsons and the Nelsons. Both families live in a school district that neither operates a public secondary school nor contracts with a particular secondary school for the education of its resident secondary students. Accordingly, the Carsons and Nelsons are entitled to the tuition assistance benefit. Because of the exclusion of religious schools, however, neither family can use the benefit at the school they believe is best for their child.

Amy and Dave Carson send their daughter to Bangor Christian Schools, a private, nonprofit school in Maine. They selected Bangor Christian because the school’s worldview aligns with their sincerely held religious beliefs and because of the school’s high academic standards.

The Maine Department of Education Department classifies Bangor Christian, which is fully accredited by the New England Association of Schools and Colleges, as a “private school approved for attendance purposes” and, thus, in satisfaction of Maine’s compulsory attendance laws. But because the school is “sectarian,” “instilling a Biblical worldview in its students” and “intertwin[ing]” religious instruction with its curriculum, it cannot be approved for tuition assistance. Consequently, the Carsons must pay their daughter’s tuition out-of-pocket.

Angela and Troy Nelson send their children to Erskine Academy, a secular private high school that is approved for tuition assistance purposes. However, they would prefer to send them to Temple Academy, a school that aligns with their sincerely held religious beliefs. Temple, like Bangor Christian, is fully accredited, but because it is “sectarian,” Maine excludes it from the state’s tuition assistance program. Because the Nelsons cannot afford tuition for their children to attend Temple, they remain at Erskine Academy, despite their firm belief that Temple would better meet their educational needs.

Meanwhile, schools that are only nominally religious are perfectly free to participate in the tuition assistance program. For example, Cardigan Mountain School—a private school in New Hampshire that purports to teach “universal . . . spiritual values,” both “in and out of the classroom” and at its required weekly chapel meetings—was approved to participate in the program. Yet a student cannot attend a Jewish, Catholic or Islamic school with her tuition assistance benefit.

Lea Patterson, an attorney with First Liberty Institute, which serves as co-counsel with the Institute for Justice in this case, said, “For 40 years, Maine has rejected parental choice in education and allowed religious discrimination to persist. The Supreme Court should act now so yet another generation of schoolchildren is not deprived of desperately needed educational opportunity and the right to freely exercise their religion.”

“The Supreme Court taking this case and ruling in favor of the parents will ensure that educational choice programs can provide a wide range of school options—whether public or private, religious or non-religious—that enable parents to find a school that best meets their children’s individual needs,” said Institute for Justice President and General Counsel Scott Bullock. “Now more than ever, it’s time to expand educational opportunities for all families.”

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(For a full discussion of this U.S. Supreme Court appeal with IJ Senior Attorney Michael Bindas and IJ Maine school choice client Amy Carson, click here: https://www.youtube.com/watch?v=TeMoGkTibdU)

For more information on this case, visit https://ij.org/case/maine-school-choice-3/ or contact John E. Kramer, vice president for communications at [email protected] or call (703) 682-9323 ext. 205.