Andrew Wimer
Andrew Wimer · December 1, 2021

ARLINGTON, Va.—Next week, the U.S. Supreme Court will hear oral argument in a potentially landmark case challenging a Maine law that bans families from an otherwise generally available student-aid program if they choose to send their children to schools that teach religion. The Institute for Justice (IJ) and First Liberty Institute, which represent the parents in Carson v. Makin, will argue the case at the Court on Wednesday, December 8, at 10 a.m. EST. Audio of the argument will be livestreamed at:

Institute for Justice Senior Attorney Michael Bindas, who will argue on behalf of the parents in court, said: “By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution. Religious schools satisfy Maine’s compulsory education laws and meet every secular requirement to participate in the tuition assistance program, yet parents are barred from selecting them simply because they also provide religious instruction. That is religious discrimination, and the Constitution does not tolerate it.”

Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty Institute said, “Government discriminating against parents because of their religious choices for their children is not only unconstitutional, it’s wrong. We are hopeful the Supreme Court will put an end to these violations, not only for the sake of the Carsons and the Nelsons, but for the sake of all parents in America.”

In 2020, the Institute for Justice won 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, 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, if a school district does not maintain its own public school or contract with a school to educate its students, it must pay for students to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Parents, however, may not select a school that Maine deems “sectarian,” which the state defines as a school that provides religious instruction.

According to the 1st Circuit’s decision, this 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. And the 1st Circuit upheld the exclusion even though it is parents—not government—who choose the schools their children attend under the program. In other words, the court held that although Espinoza prohibits Maine from excluding schools because they are religious, Maine can still exclude parents from choosing schools that do religious things.

Amy Carson, one of the plaintiffs in the case, said: “Maine families deserve the right to choose the education they believe will be best for their children, whether or not the school teaches religious values. We’re hopeful that the Supreme Court will make a decision that could open the door to better education for families not only in Maine, but across the country.”