Andrew Wimer
Andrew Wimer · June 21, 2022

ARLINGTON, Va.—In a landmark 6-3 ruling, the U.S. Supreme Court held today that a state may not prohibit families that participate in educational choice programs from selecting schools that provide religious instruction. In Carson v. Makin, the Court held that Maine’s exclusion of religious options from the state’s high school “tuitioning” program violates the Free Exercise Clause of the First Amendment. School choice programs must be neutral regarding religion—with the government neither favoring nor discriminating against parents who select religious schools—and allow families to choose the school that works best for their families.

“Today’s decision makes clear, once and for all, that the government may not bar parents from selecting religious schools within educational choice programs, whether because of their religious affiliation or the religious instruction they provide,” said Institute for Justice Senior Attorney Michael Bindas, who argued the case in front of the Court. “Parents have a constitutional right to choose such schools for their children, and the Court today held that a state cannot deny them that choice in programs that allow for other private options.”

In 2020, the Institute for Justice (IJ) won another landmark Supreme Court school choice victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in school choice 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.

Some states and lower courts, however, attempted to undermine that ruling by drawing a flimsy distinction between religious status and religious “use.” Maine, for example, continued to exclude religious options from its 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 any school that Maine deems “sectarian.”

Maine continued to enforce this exclusion in the wake of the Espinoza decision, insisting that it was not discriminating based on the religious status of the schools it excluded, but rather on the religious use to which a student’s tuition funds might be put there—namely, providing religious instruction. Worse, in October 2020 the 1st U.S. Circuit Court of Appeals adopted Maine’s “status/use” distinction and upheld the exclusion.   

Today, the Supreme Court reversed that decision in a challenge brought by the Carson and Nelson families, represented by the Institute for Justice and their co-counsel in the case, First Liberty Institute. These Maine families have children who were eligible for the tuition assistance program but were denied the choice of the schools they felt best for their children, simply because the schools were religious. 

Amy Carson, whose daughter Olivia graduated high school in 2021 and is now attending college, celebrated the Supreme Court’s ruling: “We are overjoyed that today’s decision will allow Maine families to choose the school that is best for their child. We always knew that we would be unlikely to benefit from a victory but felt strongly that Maine’s discrimination against religious schools and the families who choose them violated the Constitution and needed to end.”

In today’s opinion for the Court, Chief Justice Roberts wrote that the State “‘effectively penalizes the free exercise’ of religion” when it prohibits parents from choosing religious educational options in a school choice program. In so holding, the Court rejected Maine’s attempt to justify the state’s exclusion as a permissible restriction on the religious “use” of a student’s tuition assistance benefit, rather than discrimination based on the religious “status” of the excluded schools. “[T]he prohibition on status-based discrimination under the Free Exercise Clause,” the Court stressed, “is not a permission to engage in use-based discrimination.” “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” and the religious exclusion therefore “violates the Free Exercise Clause of the First Amendment.”

“School choice empowers parents to pick the best school for their child—and today the Supreme Court made clear that the government cannot eliminate religious educational options, regardless of whether the State is motivated by a school’s religious status or by the fact that the school provides religious instruction,” said IJ Managing Attorney Arif Panju.

In addition to invalidating Maine’s religious exclusion, today’s decision directly impacts the religious exclusion in Vermont’s tuition assistance program, which is similar to Maine’s. The Institute for Justice is currently challenging that exclusion and expects a victory in short order given today’s decision.

Just as (if not more) significantly, today’s ruling effectively neuters the “Blaine Amendments” found in well over half of the nation’s state constitutions. These provisions, which prohibit public funds from flowing to religious schools, have long been weaponized by teachers’ unions and other school choice opponents, who wield them to attack school choice bills in state legislatures and school choice programs in courts. With the Blaine Amendments effectively removed as a barrier and the legal cloud over choice programs lifted, the path to even greater educational opportunity for our nation’s schoolchildren is now clear.

“Since the Institute for Justice opened its doors in 1991, we have litigated nationwide to defend parents’ right to select the education that works best for their children,” said IJ President and General Counsel Scott Bullock. “We’ve been working toward a decision like this for three decades. It is gratifying to see the Court give the constitutional imprimatur to what we have long advocated for: school choice programs that let parents—not the government—decide which school their children attend.”