Supreme Court Strikes Down Maine Law Blocking Aid to Religious Schools

By Rafael Hoffman

(Reuters/Jonathan Ernst/File Photo) .

NEW YORK–The Supreme Court ruled that Maine cannot exclude religious schools from a voucher program it offers to its residents. The decision marks the third straight victory for school-choice expansion at the high court and helps cement a shifting judicial view of the Constitutional guidelines governing state funding for religious organizations.

The court’s opinion, released Tuesday morning, was penned by Chief Justice John Roberts and was joined by five of his fellow conservative-leaning colleagues, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Corey Barrett.

In keeping with recent court opinions on the topic, Justice Roberts called out Maine’s law limiting its voucher program to “nonsectarian” schools as discriminatory.

“The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of community from an otherwise generally available public benefit because of their religious exercise,” he wrote.

The court’s three liberal-leaning members, Justices Stephen Breyer, who is set to retire at the end of the term, Elena Kagan, and Sonia Sotomayor, dissented. Justice Sotomayor lamented the majority’s consistent expansion of what it views as permissible uses of public funds that benefit religious institutions writing that she has “growing concern for where this Court will lead us next” on the issue.

The case addressed a voucher that Maine created to benefit children who live in rural areas too sparsely populated to support their own public secondary schools. The program provides a grant to parents in such areas to cover the costs of tuition at private schools — yet the law prohibits the funding from being used at most religious institutions.

Though the court ruled twice in recent years that state aid programs which discriminate against religious schools are unconstitutional, Maine maintained that its law was consistent with those opinions since it does not ban funds based on a school’s religious “status,” rather on whether monies could be used to teach religion.

Maine also contended that unlike most other school-choice programs, the grant was intended not as an alternative to public education, but an alternate means of providing public education and that as such, a school which teaches religious doctrine cannot serve that purpose.

The parents, however, argued that the only question that should be relevant to the state’s interests is whether the school in question’s curriculum provides an education that is “equivalent” to that of public schools.

The ruling’s immediate effect will be felt in that state, and neighboring Vermont, which has a similar program. Yet the impact will likely go beyond rural expanses of New England. As school-choice programs expand nation-wide, the ruling opens the door to more faith schools, irrespective of the role religion plays in their curriculum to participate.

Rabbi Abba Cohen, Vice President for Government Affairs and Washington Director of Agudath Israel of America, welcomed the decision in a statement.  

“We are thrilled that the Supreme Court has made clear that discrimination against religious instruction in state aid programs is a constitutional violation,” he said. “Other states that have ‘no aid’ provisions in their state constitutions and law can effectively feel free to now enact programs that encourage or provide assistance to religious schools.”

The court’s decision builds on two prior cases. In 2017, the Justices ruled 7-2 that a program in Missouri which funded rubber playground padding for schools, but excluded religious ones, ran afoul of the Constitution. In 2020, a 5-4 majority struck down a state court ruling that had nixed a Montana scholarship program which gave grants for private school tuition, but which was restricted use at secular institutions.

Justice Roberts wrote that in light of the Missouri and Montana decisions that it was “unremarkable” to strike down Maine’s law.

Last year, pushback against pandemic school closures and measures seen by many as overly restrictive which had been promoted by teachers’ unions drove a wide expansion of school choice programs around the country. The movement was also aided by clashes between teachers groups and school boards with parents who differed over the role that ideas like Critical Race Theory and progressive social values should play in their children’s education. The ruling will likely bolster the reach that many of these new programs have. 

The ruling sends signals beyond the issue of school vouchers. It could represent a fundamentally new direction for the court in how it views the Constitution’s establishment clause. For decades the court, dominated by liberal-leaning justices, took a highly restrictive view, arguing that the prohibition against the “establishment of religion” preluded nearly any faith institutions from benefiting from state funding or other support. Yet, the present ruling and other recent ones looking at similar issues draws those lines differently, focusing chiefly on whether religion as a whole is being treated equally with secular institutions.

Dissenting Justices in the present opinion decried the change, with Justice Sotomayor writing that the court had “shift[ed] from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”

In school funding cases, a key to the court’s more permissive recent stance has been that decisions to apply funds to religious education are in the hands of recipients, not the state.

“As noted, 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,” wrote Justice Roberts in his opinion.

In a statement, the Orthodox Union’s Executive Director for Public Policy, Nathan Diament, cast the opinion as a fulfillment of the Constitution’s core principles of religious liberty.

“The essential promise of the First Amendment’s religion clause is to guarantee religious freedom in the United States by requiring government neutrality toward religion,” he said. “A state discriminating against religion – as Maine did in its tuition assistance program – is just as unconstitutional as a state promoting one particular religion. In today’s ruling, the Supreme Court has advanced religious liberty for all Americans of all faiths.”

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