As Olivia Carson began her studies at Husson University in Bangor, Maine, in August, she did so with full confidence that she was ready—due in part to the rigorous college prep program at Bangor Christian School, where she graduated last spring.
“It has been really good for Olivia to be in such a close-knit school,” said her mom, Amy. “The education is amazing, but it’s also been like having an additional family for her. She is one of five students in her graduation class that started at Bangor in pre-kindergarten.”
Amy and David, both graduates of Bangor Christian, intended from the outset to keep Olivia there through graduation, even though they knew they were not likely to receive the state assistance some other parents were eligible for.
The town of Glenburn, where the Carsons live, has only one public school, and it’s for students in kindergarten through eighth grades. Like many rural Maine school districts, Glenburn is too small to warrant its own high school, so the state gives tuition assistance to parents to send their children to a high school in another district. The school can be public or private, in state or out of state. But it cannot be a religious school that is considered “sectarian,” meaning that it actually teaches a religious worldview.
The Carsons are one of three families that challenged what they deem a discriminatory exclusion in a federal suit against the state in 2018. After the federal district court and the U.S. 1st Circuit Court of Appeals both ruled against them, the parents petitioned the Supreme Court. The high court announced in July it would hear the case. Oral arguments are scheduled for Dec. 8, and a decision is expected by summer 2022.
Maine’s school choice program dates all the way back to 1873, and for over 100 years, parents were free to select religious schools if they thought that was best for their children.
But in 1980, the Maine attorney general concluded that allowing tuition assistance to be used for religious schools violated the Establishment Clause of the U.S. Constitution. However, further developments in the case laws prove that’s not true, said Lea Patterson, an attorney with First Liberty Institute, which is co-counsel on the case alongside the Institute for Justice.
“There is no Establishment Clause issue with allowing religious schools to participate in the school choice program,” Patterson said. “Because at the end of the day, the students and parents are choosing where they go. It’s not the state’s decision to fund a religious school or not to fund a religious school. The money follows the student.”
After the state attorney general’s opinion, the Maine Legislature in 1981 adopted a law that said participating parents could only select “nonsectarian” schools, explained Michael Bindas, the Institute for Justice’s lead counsel on the case.
The Maine exclusion law has been challenged and upheld numerous times. But in 2017, a breakthrough came in the Supreme Court’s Trinity Lutheran v. Comer decision. The court held that the state of Missouri violated the Constitution’s Free Exercise Clause by excluding a church-run preschool that sought to use a generally accessible state grant for preschools to resurface its playground.
Then on June 30, 2020, in Espinoza v. Montana Department of Revenue, the Supreme Court held that Montana violated the Free Exercise Clause by excluding schools from its school choice program simply because they held a religious status or identity.
“But the court flagged and left open a second question; that is, whether states can nevertheless exclude parents from making choices that would put their child’s aid to a religious use; specifically, obtaining a religious education,” Bindas said.
Four months later, the U.S. 1st Circuit Court of Appeals seized on this status-use distinction and said that while Maine certainly can’t exclude schools simply because they are religious, it can exclude schools that would put a student’s aid to religious use; specifically, schools that offer religious instruction.
There’s a split of opinions among lower courts on the status-use distinction, Bindas said. The U.S. 6th and 10th Circuit Courts have both held that these types of religious-use exclusions are unconstitutional. Meanwhile, the Vermont Supreme Court and now the 1st Circuit have upheld the religious-use exclusions.
Carson v. Makin asks the Supreme Court to hold that this kind of use discrimination against parents who choose schools with religious instruction is just as unconstitutional as the religious status discrimination that the court found unconstitutional in Espinoza.
School choice operates on the private choice of parents, Bindas said. “And that parental choice, that private choice, breaks any connection between church and state or between religion and government.”
Patterson agrees. It doesn’t matter if the state is discriminating against someone because they’re religious or because they do religious things, she said. Both are religious discrimination, and both violate the Constitution.
Kelly Shackelford, president and CEO of First Liberty Institute, said Maine has created a problem for itself in singling out parents who send children to schools that teach any religious doctrine.
“It’s just clear discrimination, and we feel really confident that we should and will win at the Supreme Court. And if we do, it will be a really important victory for Christian and religious schools across the country. Because what it will say is that from now on, whenever there is any school choice program, Christian schools and religious schools must be treated fairly, and must be included fairly.”
Amy Carson knew when she joined the lawsuit in 2018 that it might not be decided in time for her family to benefit, but she wanted to help other families have the same opportunity she and her husband were able to give Olivia.
“There are plenty of other families we know who live right down the road from us, or right around the corner from us, who could benefit if the Supreme Court rules in our favor,” she said. “And I knew that somebody had to keep it going.”
Photo: Courtesy of The Institute for Justice