State’s “Nonsectarian” Requirement For Otherwise Generally Available Tuition Assistance Payments Violates Free Exercise Clause

CATEGORY: Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education
DATE: Jun 29, 2022

Maine’s Constitution provides that every school-age child in the state be provided with an opportunity to receive benefits of a free public education.  However, as a rural state with remote geography and low population density, fewer than half of Maine’s school districts operate a public secondary school of their own.  To deal with this problem, Maine enacted a tuition assistance program for parents who live in school districts that do not operate a secondary school of their own.  Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district makes payments to that school to help defray the costs of tuition.  Most private schools are eligible to receive the payments so long as they are “nonsectarian.”

In this case, the petitioners lived in areas of Maine where their school districts neither maintained their own secondary schools nor contracted with any nearby secondary school.  Petitioners David and Amy Carson, who live in Glenburn, Maine, sent their daughter to Bangor Christian Schools (BCS).  The Carsons paid for their daughter’s tuition to attend BCS themselves because it was a “sectarian” school that did not qualify for tuition assistance under Maine’s program.  Petitioners Troy and Angela Nelson live in Palermo, Maine.  The Nelsons’ daughter attended high school at Erskine Academy, a secular private high school, and their son attended middle school at Temple Academy, a “sectarian” school affiliated with Centerpoint Community Church.  While the Nelsons wished to send their daughter to Temple Academy as well, they could not afford to pay the cost of the Academy’s tuition for both children.  Both BCS and Temple Academy are considered a “private school approved for attendance purposes” under the state’s compulsory attendance requirement.  Yet, because neither school qualifies as “nonsectarian,” neither is eligible to receive tuition payments under Maine’s tuition assistance program.  The Carsons and Nelsons sued the Maine Department of Education alleging that the “nonsectarian” requirement of Maine’s tuition assistance program violated the Free Exercise Clause and the Establishment Clause of the First Amendment, and sought injunctive relief against enforcement of the requirement.  The trial court rejected the Carson and Nelson families’ claims, and they appealed.

While the Petitioners’ appeal to the First Circuit was pending, the United States Supreme Court decided Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020).  There, the Supreme Court held that held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing.  The First Circuit recognized that, in light of Espinoza, its prior precedent upholding Maine’s “nonsectarian” requirement was no longer controlling.  However, it nevertheless affirmed the trial court’s grant of summary judgment in favor of the district.  The First Circuit offered two grounds to distinguish Maine’s “nonsectarian” requirement from the no-aid provision at issue in Espinoza.  First, the panel reasoned that, whereas Montana had barred schools from receiving funding “simply based on their religious identity— a status that in and of itself does not determine how a school would use the funds”—Maine bars BCS and Temple Academy from receiving funding “based on the religious use that they would make of it in instructing children.”  Second, the panel determined that Maine’s tuition assistance program was distinct from the scholarships at issue in Espinoza because Maine had sought to provide “a rough equivalent of the public school education that Maine may permissibly require to be secular but that is not otherwise accessible.”  Thus, the nature of the restriction at issue and the nature of the school aid program led the panel to conclude that Maine’s “nonsectarian” requirement did not violate the Free Exercise Clause.  The Carsons and Nelsons appealed the First Circuit’s ruling.

On appeal, the question before the United States Supreme Court was whether Maine’s restriction violates the Free Exercise Clause of the First Amendment.  The Supreme Court disagreed with the First Circuit’s interpretation of the statute and held that Maine’s nonsectarian requirement for tuition assistance violates the Free Exercise Clause of the First Amendment of the Constitution.  The benefit provided by statute is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education.  Maine could have provided a strictly secular education in its public schools, but BCS and Temple Academy, like numerous other recipients of Maine tuition assistance payments, are not public schools.  In order to provide an education to children who live in certain remote parts of the state, Maine decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice.  The Supreme Court concluded that Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.

In his majority opinion, Chief Justice John Roberts stated that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits,” merely because they are religious.  The Supreme Court reasoned that a neutral benefit program in which public funds flow to religious organizations through independent choices of private benefit recipients does not offend the Establishment Clause, and Maine’s decision to exclude religious schools from its tuition assistance program promotes stricter separation of church and state than the Federal Constitution requires.

Carson v. Makin (2022) __ S.Ct.__ [2022 WL 2203333].


 The Supreme Court in this case held that Maine’s tuition assistance program is “discrimination against religion” because it pays for tuition for some students to attend private schools, as long as the schools have a nonreligious curriculum. The Court’s majority opinion departs from prior decisions, which allowed states to deny funding to organizations that were going to use government funds for religious activities. Instead, the Court suggests that if a state subsidizes private education, then these subsidies must also be available to religious schools, even if these schools use the government funds for religious purposes.

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