Last week’s Supreme Court ruling on a Maine lawsuit cracked the wall separating church and state and could help reshape education funding across the nation, but it’s unlikely to have any immediate impact in the state where it started.
The 6-3 decision in Carson v. Makin held that Maine must pay for religious education as part of a school voucher program that provides stipends to students living in school districts too sparsely populated to have a high school. They can use those stipends to attend a public or private school out of the district. Prior to the ruling, Maine only allowed students to use those stipends at secular schools. But in the ruling, the Supreme Court’s conservative majority said that policy was unconstitutional and discriminated against religious schools.
During the 2021-2022 school year, about 5,000 out of 180,000 publicly funded students in the state participated in the program, attending nearly 30 secular private secondary schools that were eligible for the voucher program.
Although Maine’s school voucher money can in theory now be used by parents to send their children to religious institutions, that isn’t likely to happen, at least right away.
That’s because religious or not, private schools in Maine must adhere to dozens of rules before being deemed eligible by the state Department of Education to participate in the Maine program. They also have to comply with the Maine Human Rights Act, which prohibits discrimination based on race, gender, sexual orientation, ethnicity or disability and applies to all private schools that decide to accept public money.
Schools that do not accept LGBTQ teachers, students or students with LGBTQ parents would not be able to participate in the program and benefit from state-funded tuition stipends.
The schools at the center of the 2018 Maine lawsuit that resulted in the Supreme Court case – Bangor Christian Schools and Temple Academy – would still not be eligible as they currently operate because they do not accept gay or transgender students.
It’s unclear whether any of the other religious secondary schools in the state might seek eligibility and whether they could qualify as they stand or would be willing to change their institutions in order to join in the program and access state money.
The Roman Catholic Diocese of Portland, which is the diocese for the state, said that it doesn’t know whether it will apply for its two high schools to be eligible for public funding.
It wasn’t immediately clear if they would qualify under nondiscrimination and other standards. The diocese markets its two high schools – Cheverus and Saint Dominic Academy – as “inclusive Jesuit Catholic” schools where students come from diverse backgrounds.
“The diocese has to see what the funding will entail and what the details for receiving it are before we can make any announcements about it,” a representative of the diocese said in a statement Wednesday. “The diocese is certainly supportive of allowing families to have access to better educational choices. If space allows, the diocese would happily welcome families to enjoy the excellent educational experience that Catholic schools afford.”
The bishop and pastor of the First United Pentecostal Church of Augusta, Rick Stoops, said he wasn’t sure whether Dirigere Christian Academy, a small school enrolling around 40 K-12 students that his church oversees, would qualify for the program but that he would be interested in applying.
Other religious schools in Maine contacted by the Press Herald did not respond to requests for interviews and the state education department said Friday it has not yet heard from any religious schools planning to apply. The application deadline to participate in the program is Sept. 1.
The Carson v. Makin ruling also is unlikely to lead to any swift changes in other states because Maine’s program is virtually unique. Only two other states – Vermont and New Hampshire – have similar tuition programs.
But the downstream impacts of the ruling are expected to be significant and widespread.
Experts say the Carson v. Makin ruling opens the door to new legal questions about whether religious charter schools should be permissible and, more fundamentally, about where the line of separation between church and state lies. Answers to those questions are likely to come in the form of future lawsuit decisions that build on the Maine case and could change the K-12 education system in the decades to come.
“With all Supreme Court cases it’s not what happens to the litigants that is of general interest to the public, it’s the broader implications and what the ruling means for the future,” said Paul Peterson, a professor at Harvard’s public policy school, the Harvard Kennedy School, and a researcher at the Stanford Center on Poverty and Inequality.
Peterson said the implications of Carson v. Makin aren’t yet clear, but that the biggest question is whether the government will now be required to fund religious charter schools.
“If we have state money that goes to charter schools, which are privately operated entities, the question will be whether or not you can deny a charter solely based on the fact that it will provide religious instruction or set its curriculum within a religious framework,” he said.
Peterson said he expects that question to be litigated in the future. And Carson v. Makin will almost certainly be used as precedent.
The Maine case is the latest in a series of rulings that forbid excluding religious institutions from government programs.
In a 2002 ruling that came out of an Ohio lawsuit, the Supreme Court ruled that tuition voucher programs could be used to help students attend religious schools. In 2017, the court ruled in favor of a Missouri church that sought state grant money to update its day care playground. In another case centered on vouchers decided in 2020, the court sided with Montana parents who wanted to use the state’s tuition voucher program to send their children to religious schools.
The director of the University of Boulder’s Education Policy Center, Kevin Welner, said the trend has created an imbalance between two fundamental constitutional rights – the right to religious belief and practice and the separation between church and state. Welner said Carson v. Makin and the similar rulings that came before it within the last two decades chip away at the barrier between church and state.
Dissenting Supreme Court Justice Sonia Sotomayor seemed to share Welner’s view.
“Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” wrote Sotomayor in her dissent. “If a state cannot offer subsidies to its citizens without being required to fund religious exercise, any state that values its historic antiestablishment interests more than this court does will have to curtail the support it offers to its citizens. With growing concern for where this court will lead us next, I respectfully dissent,” she said.
But in the court’s majority opinion, Supreme Court Chief Justice John Roberts Jr. said that the separation of church and state is not infringed upon if citizens make a private and independent choice to use government aid for religious schooling because it is an individual, not the government, becoming entangled with a religious institution.
“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients” does not violate the separation of church and state, he wrote. He also said that making secularism a condition of participating in the tuition program “effectively penalizes the free exercise of religion.”
Send questions/comments to the editors.
