Updated June 21, 2022 at 10:47 AM ET
The U.S. Supreme Court handed school choice advocates a major victory on Tuesday.
By a 6-3 vote along ideological lines, the court opened the door further for those seeking taxpayer funding for religious schools.
In its clearest statement to date, the court said that if a state uses taxpayer money to pay for students attending nonreligious private schools, it must also use taxpayer funds to pay for attendance at religious schools. For all practical purposes, the decision thus invalidates provisions in 37 state constitutions that ban the direct or indirect use of taxpayer money in religious schools.
The court’s ruling came in a case from Maine, a state so rural that half of its school districts have no public high school. The state deals with that problem by contracting with nearby high schools in other districts to take those students. The state pays the average cost of tuition, a bit over $11,000. In addition, it pays the same amount for nearly all of the 4,800 students who attend 11 private, non-sectarian academies, many of them located on the green at the center of the towns where they are located.
What the state does not do is pay the tuition for students attending private religious schools.
But now the Supreme Court has ruled that Maine’s system of excluding tuition for students attending religious schools is unconstitutional. The court said that the First Amendment provision guaranteeing the free exercise of religion requires neutrality toward religion, and Maine’s system of paying only for tuition at non-religious schools demonstrates not neutrality, but hostility to religion.
Writing for the court’s conservative majority, Chief Justice John Roberts said “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.”
The decision could, theoretically at least, greatly expand state aid to religious schools. For decades the court deferred to state constitutions, many of which have provisions barring direct and indirect state aid to religious schools. But in recent years, conservative court majorities have upheld state voucher programs for religious schools, and other programs that use tax benefits and other mechanisms to facilitate attendance at religious schools.
Now, in the Maine case, the court majority has gone further, declaring that when a state provides benefits to a non-religious private school, it must provide the same benefits to a religious school.
Only one other state, Vermont, has a program like the one in Maine. But the court’s decision could open up more, mainly indirect benefits to religious schools. School voucher programs, tax credits to fund scholarships and tax exempt educational savings accounts.
Most importantly, the decision is likely to spur a drive by some private religious schools to seek public funding as charter schools. Until now, charter schools have been considered public schools, and religious schools were not eligible for charter status. But now, some in the school choice movement are seeking to change that, going to court to challenge the exclusion of religious schools from charter status.
As for Maine, it faces something of a dilemma. The state legislature will not be back at work until September, too late to adopt an alternative system for educating its students from more rural areas. The 4,800 students who currently attend the non-religious independent academies could be allocated to public schools elsewhere. But that would leave the academies, many of which have long histories in their districts, bereft of students. So it is possible that the academies would become charter schools, and thus part of the public school system.
Alternatively, the state legislature might decide to pay the tuition for students attending religious schools. But that would likely provoke other legal problems. The religious schools at the center of Tuesday’s case pride themselves on imbuing students with religious views; they don’t, for instance, accept gay students, gay teachers, or the children of gay parents. It is not clear that their curriculum comports with the state curriculum. All of that would put those schools at odds with state laws. And it is not even clear that any of the schools actually wants to be included in the state tuition program, especially if, as is almost certain, contracting with the state means strings are attached.
Dissenting from Tuesday’s ruling were the court’s three liberals, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.
In her dissent, Sotomayor wrote: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. … The consequences of the Court’s rapid transformation of the Religion Clauses must not be understated.”
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