By Lisa Soronen
In Carson v. Makin the U.S. Supreme Court will decide whether Maine has violated the U.S. Constitution by refusing to fund, as part of a generally available student-aid program, attending schools that provide religious, or “sectarian,” instruction.
More than half of Maine’s “school administrative units” (SUA) don’t operate public secondary schools of their own. Instead, Maine statutes allow them to pay for students to attend other public and private, nonsectarian schools.
The nonsectarian requirement has been unsuccessfully challenged in the First Circuit twice before. But the challengers in this case, who want tuition assistance to send their children to religious schools, claim that two recent U.S. Supreme Court cases indicate that the nonsectarian requirement violates their First Amendment free exercise of religion rights, among other constitutional rights.
The First Circuit disagreed. Most of its opinion focuses on the free exercise claim and these two cases.
In Trinity Lutheran v. Comer (2017), the Supreme Court held a state couldn’t provide a subsidy for resurfacing preschool and daycare playgrounds and exclude religious entities. According to the Court, the program “expressly discriminate[d] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character” and held that the program must be subject to “the most exacting scrutiny.”
In Espinoza v. Montana Department of Revenue (2020), the Supreme Court struck down a state program giving tax credits to those who donated to organizations providing scholarships which couldn’t be used at religious schools. Espinoza clarified, according to the First Circuit, both that discrimination based solely on “religious character” is discrimination based solely on religious “status” and that such discrimination is distinct from discrimination based on religious “use.”
The challengers claim the non-sectarian requirement discriminates against them based on their religious status, per Trinity Lutheran and Espinoza, and fails strict scrutiny.
The First Circuit disagreed concluding that the non-sectarian requirement imposes a use-based restriction rather than a status-based restriction. The current Maine Education Commissioner and Maine Attorney General agreed the “determination whether a school is ‘nonsectarian’ depends on the sectarian nature of the educational instruction that the school will use the tuition assistance payments to provide.”
Likewise, the relevant statute does not make control by or affiliation with a religious institution determinative of a school's eligibility to receive tuition assistance payments from an SUA.
The State and Local Legal Center is not participating in this case.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.