A court education in schooling

The U.S. Supreme Court’s term ends shortly before July 4.

Some opinions released just before a term’s end are especially important.

Some opinions released just before a term’s end receive a lot of press attention in advance.

Yet not all especially important opinions receive such attention in advance.

One such opinion – Carson v. Makin, released on June 21 – involves the Free Exercise Clause of the First Amendment, and arises from Maine.

Chief Justice John Roberts wrote the opinion. Joining him are Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Dissenting are Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

This 6 to 3 lineup illustrates how important presidential elections can be to the direction that the Supreme Court takes.

Gorsuch, Kavanaugh, and Barrett, for example, were all nominated and appointed by President Donald Trump. Had he had lost the 2016 presidential election, Carson v. Makin and other 6-to-3 opinions may well have gone 3 to 6 the other way.

So what happened in Maine?

Maine has several school districts so sparsely populated that they lack secondary schools.

The state has a tuition-assistance program for pupils in such districts, Roberts says. Parents “designate the secondary school they would like their child to attend – public or private – and the school district transmits 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.'”

What does “nonsectarian” mean?

The Maine Department of Education says a “sectarian school” is one “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith,” according to the Boston-based federal-appellate court that upheld the requirement. “The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.” And “affiliation or association with a church or religious institution is one potential indicator of a sectarian school,” but “it is not dispositive.”

Now you see where this is going: To put it simplistically, parochial schools of whatever faith are out.

Maine law, the court holds, violates the First Amendment’s Free Exercise Clause.

After Carson v. Makin, parochial schools are back in.

Roberts explains that the Free Exercise Clause “protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.'” The court has “repeatedly held that a (s)tate violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

In challenges to Missouri law in 2017 and Montana law in 2020, the court “applied these principles in the context of two state efforts to withhold otherwise available public benefits from religious organizations.”

The Missouri opinion calls this “odious to our Constitution.”

Maine’s tuition-assistance program, like Missouri’s program, “effectively penalizes the free exercise” of religion.

Like the Montana program, the Maine program’s effect is to “disqualify some private schools … solely because they are religious.”

There “is nothing neutral about Maine’s program,” Roberts says. Maine “pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion.”

As the court explained in the Montana opinion, a “(s)tate need not subsidize private education. But once a (s)tate decides to do so, it cannot disqualify some private schools solely because they are religious.”

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” Roberts says.

Even now that the court has released the Carson v. Makin opinion, Randy Elf doubts it will get the press attention that some other end-of-term decisions will get.



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