The U.S. Supreme Court has repeatedly affirmed that government officials cannot exclude religious individuals or institutions from generally available public benefits simply because of their beliefs. Unfortunately, some officials have continued misinterpreting the Establishment Clause of the First Amendment and similar provisions to discriminate against religious people and organizations.
In the 2022 case Carson v. Makin, the Supreme Court issued an important decision preventing the State of Maine from discriminating against religious schools that actually practice their religion rather than merely holding to a religious “status” in name only. The ruling set a strong precedent that positively affected several Alliance Defending Freedom clients in similar situations in Vermont.
What was Carson v. Makin about?
In Maine, 143 of its 260 school districts did not operate public high schools. In order to provide children with universal access to education, the State of Maine operates a tuition assistance program that helps pay tuition “at the public school or the approved private school of the parent’s choice.” Unfortunately, since 1980, parents have been forbidden from using this program to send their children to private schools deemed “sectarian” (i.e., religious) while the state allows families to use tuition assistance at other private schools.
This policy flies in the face of two recent Supreme Court rulings that bar discrimination against religious schools and policies that prevent parents from accessing a generally available benefit program. In 2017, ADF successfully argued in Trinity Lutheran Church of Columbia v. Comer that a private religious school could not be excluded from a generally available grant that provided funding to resurface playgrounds and make them safer for kids. Similarly, in 2020, the Court ruled in Espinoza v. Montana Department of Revenue that a state tuition tax credit program for private schools could not be denied to parents because they used it to send their children to a private religious school.
Despite these rulings, the State of Maine argued (and the U.S. Court of Appeals for the 1st Circuit agreed) that it could deny parents the ability to use generally available funds to send their children to private religious schools that teach from a faith perspective. In other words, if a school merely calls itself Christian, Catholic, Jewish, etc., that’s fine, but if the religious school actually does religious things like teach the tenets of its faith, that’s a step too far.
This is why ADF filed a friend-of-the-court brief on the side of the petitioners in Carson v. Makin.
Maine’s policy put religious schools and the families who choose these schools in an unfair position. These parents were forced to either forgo otherwise generally available benefits and pay tuition at a religious school out-of-pocket or send their children to a school that did not meet their educational goals for their children. Religious schools, meanwhile, would have to be “religious” in name only, forcing them to abandon their religious mission to be eligible for the program.
This was religious discrimination plain and simple. Not only that, but it put the government in the position of having to determine which schools are religious in name but not in practice—in essence, forcing them to make religious judgments. The policy clearly violated both the Free Exercise and Establishment Clauses of the First Amendment.
How does Carson v. Makin relate to ADF’s cases?
ADF’s case A.H. v. French involved questions similar to those in Carson v. Makin. Like Maine, Vermont has a Town Tuitioning Program that provides a tuition benefit to parents to send their children to another public or private school in areas where there isn’t a public high school. And like Maine, Vermont tried to exclude religious schools from this benefit. The U.S. Court of Appeals for the 2nd Circuit temporarily stopped Vermont from discriminating against religious schools, but prior to the Supreme Court’s decision in Carson v. Makin, it hadn’t issued a permanent decision protecting religious schools.
In January 2021, ADF prevailed in another lawsuit against Vermont in A.M. v. French and, in February 2022, filed yet another lawsuit (E.W. v. French). These other cases also dealt with discrimination against religious schools, parents, and students in educational funding.
A precedent-setting victory for religious freedom
In June 2022, the Supreme Court ruled that Maine’s “nonsectarian” requirement for its tuition assistance program was unconstitutional. The Court made clear that its ruling does not require states to fund religious education. Quoting Espinoza, the Court affirmed that once a state decides to provide tuition assistance for private schools, “it cannot disqualify some private schools solely because they are religious.”
Following this strong ruling for religious freedom, Vermont officials entered settlements in both A.H. v. French and E.W. v. French in which they agreed to apply the tuition assistance program equally to both religious and non-religious private schools.
Based in part on the Carson decision, the state officials agreed that Vermont’s policy excluding religious schools from the program was unconstitutional. The Vermont Agency of Education sent a letter to local districts informing them that the First Amendment requires them to treat tuition assistance requests for religious schools the same as those for non-religious schools. In addition, the families represented by ADF who were wrongly denied assistance were ordered to be reimbursed by their school districts for the money they paid out-of-pocket.
Religious freedom has been a hallmark of America since its founding, and that includes freedom from discrimination based on one’s beliefs. These victories are an important step in ensuring that religious schools are not treated worse than their secular counterparts because of their religious character.
