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Why SCOTUS said 'ayuh' to Maine's religious schools

Bangor Christian Schools. Courtesy photo.

The Supreme Court ruled Tuesday that Maine may not prohibit the use of public “tuitioning funds” to be used for religious school students.

Catholic educators in Maine, and nationally, have told The Pillar that Carson v. Makin will contribute to the eradication of state “Blaine Amendments,” which restrict public funding for religious school programs.

Sr. Dale McDonald, PBVM, vice president of public policy at the National Catholic Education Association, told The Pillar the ruling is “a welcome decision, affirming that religious exercise is permitted as part of free exercise.”

So what happened, and what does it mean for religious schools, both in Maine and elsewhere? Read on for a Pillar Explainer:

What sparked this case?

Amy and David Carson live in the small town of Glenburn, Maine, which does not have a high school. Under Maine’s town tuitioning program, the Carsons were eligible for a tuition voucher to send their daughter, Olivia, to a nearby public or non-sectarian private school.

The Carsons wished to send Olivia to Bangor Christian Schools, their alma mater. As the name suggests, Bangor Christian Schools is a sectarian institution where students receive Biblical instruction in addition to secular school subjects. The school is accredited by New England Association of Schools and Colleges, like other public and private schools in the state.

The state declined to offer a voucher to the Carsons to pay for Olivia’s education at Bangor Christian, which led to the initial lawsuit. The Supreme Court heard arguments in December 2021.

Olivia has since graduated from Bangor Christian Schools and is now a student at a local college.

What did the court say?

The 6-3 majority decision was authored by Chief Justice John Roberts.

Roberts said that the state’s exclusion of “otherwise eligible schools” from town tuitioning programs because of their religious status or curriculum is a violation of the First Amendment.

“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” he said.

Roberts was joined by Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas in his opinion.

Is this a groundbreaking decision?

The decision this week builds on a 2020 decision, Espinoza v. Montana Department of Revenue, which found that Montana had discriminated against religious schools in its scholarship tax credit program.

Unlike Maine’s town tuitioning program, where the towns themselves pay for the education of students, Montana’s program provided tax credits to people and businesses who donated to organizations that grant scholarships for children to attend private schools.

In 2018, three years after the program was created, Montana issued a rule banning the use of these scholarships for tuition at religious schools, citing the state’s Blaine Amendment. Parents then sued.

Similar to the Maine schools, the Montana schools in question would have otherwise been eligible for the tax-credit-funded scholarships had they not been affiliated with a religion.

Writing in the majority opinion in that 2020 case, Chief Justice John Roberts noted that there was no obligation whatsoever for a state to pay for any non-public education.

“A State need not subsidize private education,” he said. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

In its decision this week, the Court affirmed that religious schools can’t be excluded from funding available to other kinds of private schools because of their status or because of their explicitly religious curriculum, as the state of Maine had tried to argue.

“The curriculum taught at participating private schools need not even resemble that taught in the Maine public schools,” to be available for state funding, Roberts explained this week.

What’s a Blaine Amendment?

Some states have what is dubbed a “Blaine Amendment,” which prohibits direct government aid from going to educational institutions affiliated with a religion.

The late Speaker of the House James Blaine (R-ME) proposed a federal constitutional amendment in 1875, which would have said that:

“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

The amendment passed in the House of Representatives failed to pass in the Senate.

Still, 37 states wrote some version of it in their state constitutions.

Blaine himself had a Catholic mother and Presbyterian father, and his sisters were raised in their mother’s faith. (He was raised in his father’s faith.) He would eventually attempt to court the Catholic vote during his run for president in 1884, losing narrowly to Grover Cleveland.

Blaine Amendments are considered to be emblematic of the blatantly anti-Catholic attitudes present in the 19th century.

What is Maine’s town tuitioning program?

Maine is a fairly rural state, and more than half of the state’s school districts do not have a high school. To ensure that students receive an education, some towns opt to make a contract with a nearby public or private high school to send their students and comply with state law requiring education.

But for 48 Maine towns, high-school-age students can decide where they would like to attend high school and have tuition paid for by the state. (Middle schoolers are eligible in two towns.)

Children who live in these 48 towns attend high school at nearby public or private high schools, with their town footing the tuition bill up to roughly $12,000. While the program has existed since 1873, since 1980, it has been state law that these town tuitioning dollars cannot go to schools that are “sectarian” in nature.

There are no income requirements. To be eligible for the program, one must live in a town that does not have a public school for the child’s grade level.

For example: this means that a child who lives in Arundel, Maine–a town without a high school–can opt to attend either the public high schools in the neighboring towns of Biddeford and Kennebunk, or go to Thornton Academy, a private boarding school located in the city of Saco, free of charge. That same student would have to foot the bill if they wished to attend a nearby Catholic high school or Christian high school. (All of Maine’s sectarian private secondary schools are operated by Christian denominations, although there is a K-8 Jewish day school.)

More than 4,000 students statewide are eligible for this program, about 2.5% of the total number of students in Maine schools.

What does the state say?

Maine’s Attorney General Aaron Frey said in a statement Tuesday that he was “terribly disappointed and disheartened” by the decision, specifically because he believes Bangor Christian Schools and another school in the lawsuit do not provide a proper education due to their religious beliefs.

“They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” he said, referring to admissions and hiring policies requiring students and staff to comply with the covenants of the school.

“While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear,” he said.

Frey said he would work with Gov. Janet Mills and the state legislature “to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.”

What does this mean for Maine’s Catholic schools?

Both of Maine’s Catholic high schools enroll students living in towns that permit school choice, and could theoretically be eligible for town tuitioning dollars as a result of the new decision.

But Maine diocesan officials are holding back, in part because they want to see what requirements might go along with state funding programs.

“The diocese has to see what the funding will entail and what the details for receiving it are. The diocese is certainly supportive of allowing families to have access to better educational choices,” Dave Guthro, communications director for the Diocese of Portland (ME) told The Pillar.

“If space allows, the diocese would happily welcome families to enjoy the excellent educational experience that Catholic schools afford.”

Sr. McDonald, vice president at the NCEA, noted that about a fifth of Catholic school students nationwide are not Catholic, saying that parents often choose Catholic school despite religious differences.

“They’re not worried about indoctrination,” she said. “That’s not the purpose of the school, to indoctrinate people who chose not to accept the faith.”

What about the rest of the country?

The Supreme Court already ruled in favor of giving aid to religious schools in Espinoza v Montana Department of Revenue in 2020 and Trinity Lutheran Church of Colombia, Inc. v. Comer in 2017.

Maine’s town tuitioning program is relatively unique in its scope, although similar programs exist in Vermont and New Hampshire.

McDonald told The Pillar she thinks this decision will make it easier to expand school choice programs around the country.

“I think this has clearly set the precedent–particularly in any school choice programs that might be in the works–I think the one thing that people trying to put those programs together won’t have to deal with is the Blaine Amendment.”

“I think basically it invalidates the Blaine Amendment as a course of action,” she said.

So now what?

A significant number of Maine’s private high schools function as the de-facto public schools for its area residents and have contracts with towns and/or school districts. Additionally, public high schools do not exist for students in many rural areas of Maine.

In order to comply with the Supreme Court’s ruling, the state will have to either allow for the use of town tuitioning dollars at sectarian schools, prohibit the use of town tuitioning dollars at all private schools, or require towns to make a contract with a public or private high school for their students.

“There’s two options: one is to allow families to use the tuitioning program for a faith-based school, or to completely shut down tuition assistance for anybody–which is highly unlikely,” McDonald explained.

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