Arlington, Virginia—With briefing now complete, the justices of the U.S. Supreme Court will conference on June 24 to consider whether to grant review in Carson v. Makin, a school choice case arising out of Maine. The Institute for Justice (“IJ”) is asking this nation’s highest court to resolve a question with nationwide implications for parents and children: Does it violate the Constitution when states exclude families from generally available student-aid programs simply because they send their children to schools that provide religious instruction?

In October 2020, the 1st U.S. Circuit Court of Appeals upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, students who live in towns that do not maintain a public school may use program funds to attend the school of their parents’ choice, whether public or private, in-state or out-of-state—but only if it does not teach religion.

“The central question here remains whether parents will be able to select the best schools to meet their children’s needs—including religious schools that reinforce the values and beliefs so many of these parents seek to instill in their homes,” said Institute for Justice Senior Attorney Michael Bindas. “The Constitution requires government neutrality toward religion, not hostility. Maine’s exclusion of religious options violates that constitutional command of neutrality.”

Maine’s program was open to religious schools for a century.  Maine changed policy after an opinion by the state’s attorney general without any clear direction from courts or public demands for such actions.

In February 2021, the Institute for Justice petitioned the U.S. Supreme Court for review of the 1st Circuit decision upholding Maine’s religious exclusion.  As it noted in its reply brief  filed with the Court last week, Maine’s law discriminates against parents based on religion by providing some families with tuition support for the school of their choice but denying that support to other families—those who desire a religious education for their children.

Just this past week, the 2nd U.S. Circuit Court of Appeals held unconstitutional a similar ban in Vermont’s tuitioning program, which had barred parents in that state from being reimbursed for tuition at religious schools. On Monday, the Institute for Justice filed a supplemental brief with the Supreme Court informing it of this significant new ruling.

“Maine flatly bans parents from choosing schools that offer religious instruction, and that is unconstitutional,” said Bindas. “In student-aid programs like Maine’s, it is parents—not the government—who choose the schools their children will attend.  If parents believe a religious education is the best option for their child, the government should not be allowed to deny them that choice.”

The Institute for Justice filed the challenge to Maine’s religious exclusion on behalf of parents Amy and David Carson, along with Troy and Angela Nelson. Their children qualified for Maine’s tuitioning program in all other respects, but they were barred from choosing the schools their parents thought best for them, simply because those school provided religious instruction. A collection of eleven amicus (or “friend of the court”) briefs were filed asking the U.S. Supreme Court to grant review of the 1st Circuit’s decision upholding the exclusion, including by a coalition of 18 states, a broad coalition of religious schools, innovative private schools, and others.

Notably, the Supreme Court called for a response from the state of Maine, asking it to explain why the Court should not review the 1st Circuit’s erroneous decision. In its response, Maine acknowledges that this case squarely presents the “religious use”-based discrimination issue that the Supreme Court flagged but declined to resolve in Espinoza v. Montana. In that 2020 case, the Institute for Justice earned a landmark victory in which the High Court held that states, in operating school choice programs, cannot bar families from choosing schools simply because the schools are religiously affiliated. The Court held that such discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.

According to the court of appeals decision upholding Maine’s exclusion, although Espinoza prohibits states from excluding schools based on religious “status,” Maine can continue excluding religious schools based on religious “use”—i.e., on whether those religious schools also do religious things.

“Maine is discriminating against students that pick religious schools and the High Court should grant review and put an end to such exclusions nationwide,” said IJ Managing Attorney Arif Panju. “By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution.”

(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)

Scott Bullock, the president and general counsel of the Institute for Justice said, “Educational choice programs fund individuals—not institutions—based on free, independent choice. Families should have the broadest range of options—whether they are public, private secular, or private religious schools—in making decisions on where and how children are educated.”

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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.