ANALYSIS OF THE ARGUMENTS
By Amy Howe
December 8, 2021
at 4:42 p.m.
Michael Bindas advocates on behalf of parents who wish to send their children to religious schools. (Art link)
The Supreme Court heard argument on Wednesday in a challenge to a Maine program that pays tuition fees for some students to attend a private school when their own school district does not operate a school public secondary. Two couples from Maine argue the state’s refusal to provide funds for students to attend religiously educated schools violates the Constitution, and after nearly two hours of oral argument, the court’s conservative justices appeared to agree . Although the attorney representing Maine stressed on Wednesday that the court ruling would directly affect only a small number of families in Maine, a ruling for parents could mean state and local governments that choose to subsidize private schools would be required to allow families to use taxpayer funds to pay for religious schools.
Involved in Carson vs. Makin is the system Maine uses to give school-aged children the opportunity to receive free public education. Because parts of the state are rural and sparsely populated, not all school districts operate their own high schools. Instead, some districts make arrangements with specific private schools or other public schools to take their students. And other school districts allow their students to choose their own public or private school – in Maine or out of state – and pay their tuition. However, the state only allows tuition fees under the program to be paid to private “non-denominational” schools, that is, schools that do not provide religious education.
Advocating on behalf of parents who wish to be able to use state tuition assistance program funds to send their children to religious schools, attorney Michael Bindas told judges that “religious schools teach religion . It’s part of what they do. It’s also part of who they are. Referring to the 2020 decision in Espinoza v. Montana Revenue Department, in which the court ruled that a state cannot exclude families or schools from participating in public funding programs of private schools because of a school’s religious status, but did not decide whether states could exclude families or schools when the money was used for religious purposes, Bindas stressed that the state’s refusal to allow its clients to participate in the tuition assistance program is unconstitutional, that the state discriminates on the basis of the religious status of schools or because they teach religion.
Representing Maine, Deputy Chief State Attorney Christopher Taub countered that the tuition assistance program does not discriminate. Instead, he told judges, it is intended to provide students who live in school districts without their own high schools with the equivalent of the education they would have received in a public school – this which means, he said, a “neutral religious” one.
The court’s liberal judges echoed this idea in their questions to Bindas, with Judge Sonia Sotomayor noting that parents who live in districts with their own public schools have no opportunity to participate in the aid program at all. tuition fees. If these parents want their children to receive a religious education, Sotomayor said, they should pay for it themselves. Therefore, Sotomayor continued, parents who live in school districts that do not have their own public schools “are subject to the same choice as all other parents in Maine: either get free secular public education or pay for your education. religious formation They are treated like everyone else.
Judge Elena Kagan made a similar point. Maine’s tuition assistance program, she observed, “is a default program for a very small number of students living in remote areas.” To address this unique situation, she explained, the state created this “extremely strict curriculum” that the court arguably should not view in the same light as more traditional school choice programs.
But Kagan’s conservative colleagues disagreed with her on several occasions, starting with the state’s premise that the tuition assistance program (and its exclusion from sectarian schools) was intended to to provide “the approximate equivalent” of public education. Judge Clarence Thomas expressed bemusement at Taub’s insistence that the “rough equivalent” of a public education was education that does not promote one particular set of religious beliefs to the exclusion of another. . Perhaps, Thomas suggested, public education should focus on academic interests instead.
Judge Samuel Alito noted that parents could use the Tuition Assistance Program to send their children to elite New England boarding schools like Phillips Andover, Phillips Exeter and Miss Porter’s School. Are they, Alito asked Taub, really the equivalent of public education?
And Judge Amy Coney Barrett observed that not all schools are the same. For example, she told Taub, private schools are sometimes single-sex, although public schools are normally mixed.
But even beyond the premise of Maine’s argument, several of the court’s conservative justices made comments and asked questions indicating that they viewed the state’s exclusion of schools that teach religion as a unconstitutional discrimination. Chief Justice John Roberts described a hypothesis involving two religious schools, only one of which is obligated by its religion to educate students in its faith. When Taub told Roberts that the school that educated students in his faith would not receive funding under the Maine program, while the other would, Roberts concluded that funding for schools depended on the beliefs of the two different religions. “And we said,” he stressed, “that this is the most fundamental violation of the” Constitution – “for the government to draw distinctions between religions on the basis of their doctrines. “.
Alito described a different religious school with religious beliefs much like the Unitarian Universalist Church that are infused into the school community – for example, that all people are created equally. When Taub appeared to indicate that such a school might be eligible to receive funds under the Maine program, Alito hesitated. Unless you can say that you would treat the Unitarian Universalist school the same as a Catholic or Orthodox Jewish school, Alito warned Taub, âI think you have a problem.
Judge Neil Gorsuch resented the suggestion that families who wanted religious education for their children could send their children to religious instruction after school or on weekends. When the government creates a program like the one in Maine, he pointed out, claiming that you don’t have to choose between participating in the program and your religion because you can send your kids to Sunday school seems to favor. religions for which it is an adequate substitute. and discriminate against those for whom it is not.
Judge Brett Kavanaugh also weighed in. He told Malcolm Stewart, the Deputy Solicitor General of the United States who appeared on behalf of the United States as a “friend of the court” supporting Maine, that the arguments of the federal government and Maine boiled down to the suggestion that in a school district without a public school, a family could send their children to a private secular school and receive tuition assistance, while a neighbor who sends their child to a private religious school could not not. “It’s just discrimination on the basis of religion at the neighborhood level,” Kavanaugh concluded.
Some conservative judges have also expressed concern that excluding schools that provide religious education would force state officials to become involved in reviewing a religious school’s curriculum to determine if it is eligible. to participate in the program, which could create its own constitutional problems. Taub assured the judges that “these are easy appeals to make,” in large part because religious schools do not try to hide the fact that they are religious. But that didn’t necessarily appease the judges.
The Liberal judges made two arguments, neither of which seemed to carry much weight. The first was the claim – made by both the United States and Maine – that parents have no right to sue when schools have not committed to accepting public funds even though the law was repealed. Kagan asked Bindas if parents could file a complaint even though all schools that meet their religious requirements are clear they won’t take the money. Bindas responded that they could, stressing that the injury necessary to have the right to sue comes from denying the very possibility of seeking such a school.
The second argument, made primarily by Kagan but also by Judge Stephen Breyer, was the idea that – especially because the schools at issue in this case are only hiring born again Christians as teachers and will not hire new born Christians as teachers. LGBTQ teachers neither will admit LGBTQ students – although “Some states might love to have” programs that fund all kinds of private schools, “others think it would be very divisive to do so. Therefore, she continued, the court has often discussed the idea of ââ”playing in the joints” in matters of religion, to allow state and local governments some flexibility rather than forcing everyone. to follow the same model.
Kavanaugh saw it differently. He suggested that excluding a religious person from a public program could also create a feeling of inferiority and division.
A decision in the case is expected by the summer.
This article originally appeared on Howe on the Court.