SCOTUS Decision in Maine Voucher Case

Earlier today the Supreme Court handed down its decision in the Carson v Makin case, a voucher case from Maine premised on whether or not Maine could deny public funds to schools that promote religious instruction. In a 6-3 decision, the court handed down a predictable decision against the state of Maine, ruling that a Maine tuition program that does not allow public funds to go to school that promote religious instruction was unconstitutional. The decision makes it a bit easier for K12 religious schools to access private funds (continuing a recent trend), but does not require states to fund religious schools if they aren’t already funding private schools.

Background: In November 2021, AASA was proud to join NSBA and other education groups in filing an amicus brief before the Supreme Court in the case Carson v Makin. This case presents a question of vital importance to school superintendents: whether the free public education available to all residents by their local school boards must include the option of a pervasively religious education or whether innovative methods of providing a secular public education that are necessitated by local district circumstances may lawfully exclude the sectarian alternative. We were never expecting a favorable outcome (given the current court) and it was always a question of how far this decision would go beyond 2020’s Espinoza ruling. There is the potential for this case to impact the ability of private religious schools to be eligible for state formula funding as well as other funding that has been traditionally limited to public schools. In terms of the voucher program under question: jurisdictions in rural areas too sparsely populated to support public schools of their own can arrange to have nearby schools teach their school-age children, or the state will pay tuition to parents to send their kids to private schools. But those schools must be nonsectarian, meaning they cannot promote a faith or belief system or teach “through the lens of this faith,” in the words of the state’s department of education. Privatization/voucher advocates argued the policy was discriminatory. 

Today’s decision continues a shift in momentum that reaches back to the earlier Espinoza decision, which found that states much allow religious schools to participate in programs that provide scholarships to students attending private schools.  It reflects a court that continues to grow receptive to claims from religious groups and people, requiring governments to aid religious institutions (albeit however much at odds with the historical separation of church and state). It comes with huge consequences for state funding of religion. The court’s conservative majority holds that the First Amendment requires Maine’s taxpayers to fund explicitly religious education.  Today’s decision continues to open the door to further privatization of education, and raises important questions/considerations:

• Sotomayor: “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.’ And ‘A state's effort to preserve the constitutional separation of church and state now qualifies as a violation of free exercise. The majority is repealing the establishment clause.’ And ‘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.’
• Breyer, asking the next logical question: Does this ruling mean that states must provide equal funding to private religious schools and public schools? Taken at face value, Roberts' decision has the potential to dismantle secular public education.