WASHINGTON — The Supreme Court agreed on Friday to decide whether Maine may exclude religious schools that offer sectarian education from a state tuition program.
The case, Carson v. Makin, No. 20-1088, is broadly similar to one from Montana decided by the court last year. In that case, the court ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools.
Chief Justice John G. Roberts Jr., writing for the majority in the case, Espinoza v. Montana Department of Revenue, No. 18-1195, said a provision of Montana’s Constitution banning aid to schools run by churches ran afoul of the federal Constitution’s protection of the free exercise of religion by discriminating against religious people and schools.
“A state need not subsidize private education,” he wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
But the Montana decision turned on the schools’ religious status rather than their curriculums. There may be a difference, Chief Justice Roberts said, between an institution’s religious identity and its conduct.
“We acknowledge the point,” he wrote, “but need not examine it here.”
In urging the Supreme Court to hear the case from Maine, two families that send or want to send their children to religious schools, represented by the Institute for Justice, a libertarian group, asked the justices to resolve the open question and do away with the distinction.
“Such a state of affairs — in which a state cannot deny a benefit to a student because she wishes to attend a school that is religious, but can deny it because the school does religious things — is unstable and untenable,” the families’ brief said.
Maine requires rural communities without public secondary schools to arrange for their young residents’ educations in one of two ways. They can sign contracts with schools elsewhere, or they can pay tuition at public or private schools chosen by parents so long as they are, in the words of state law, “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”
In opposing Supreme Court review, officials in Maine argued that the schools students attend under the program should mirror the teaching offered at public schools.
“The purpose of the program is to engage private schools willing to deliver a specific service: an education that is substantively akin to that which a student would receive if their community operated a public school,” the state’s lawyers wrote. “A religious organization that is willing to provide the service sought is treated no differently than any other organization.”
The Supreme Court has long held that states may choose to provide aid to religious schools along with other private schools. The question in the cases from Montana and Maine was the opposite one: May states refuse to provide such aid if it is made available to other private schools?