Maine cannot ban tuition aid for students at religious schools, Supreme Court rules

In a 2018 photo, Bangor Christian Schools sophomore Olivia Carson, 15, was dropped off on the first day of school by her mother, Amy Carson in Bangor. Amy Carson said she was “overjoyed” by the Supreme Court decision, and that she “felt strongly that Maine’s discrimination against religious schools and the families who choose them violated the Constitution and needed to end.”Gabor Degre/Associated Press

In its latest decision supporting religion in public life, the US Supreme Court on Tuesday struck down a Maine law that since 1981 barred the use of taxpayer dollars to pay for tuition at religious schools.

In a 6-3 ruling, the high court’s conservative majority said Maine cannot exclude religious schools from a state program that provides tuition aid for students who live in communities without public schools and must be educated at public or private schools elsewhere.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the ... First Amendment,” Chief Justice John G. Roberts Jr. wrote in the majority’s ruling. “The program,” he added, “operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”

In a stinging dissent, Justice Sonia Sotomayor wrote that “this court continues to dismantle the wall of separation between church and state that the framers fought to build.”

Justice Stephen Breyer, in a separate dissent, said the majority opinion ignored the First Amendment, which forbids government from enacting laws relating to religious establishment.

“The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion,” Breyer wrote.

The case echoed the high court’s ruling in 2020 that Montana could not exclude religious schools from scholarship programs for students at private schools. However, the Montana case centered on a school’s religious affiliation, not what was taught there.

Other recent cases have blurred the line between church and state, including a ruling that many teachers at religious schools are not protected by workplace discrimination laws.

Only about 5,000 Maine children live in districts that do not have a public school or do not have a contract with nearby school districts. But the ruling is expected to be felt elsewhere in the country, providing a boost for school-choice programs where taxpayer funding has not been approved for religious education. Vermont, for example, has a similar program to Maine’s.

The Massachusetts Constitution bars taxpayer subsidies to religious schools, and voters have twice upheld that policy by overwhelming margins in statewide referendums, once in 1982 and again in 1986. The policy also has withstood court challenges.

The ruling Tuesday overturned an appellate decision in favor of the Maine law, which had been challenged by parents of students at Bangor Christian Schools and at Temple Academy in Waterville.

Both of those private schools, for example, “have admissions policies that allow them to deny enrollment to students based on gender, gender identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians,” Breyer wrote in his dissent.

At Bangor Christian Schools, its website states, “our final authority in all matters is the Word of God.”

Amy Carson, a plaintiff whose daughter attended Bangor Christian Schools, said she was “overjoyed” by the decision, and that she “felt strongly that Maine’s discrimination against religious schools and the families who choose them violated the Constitution and needed to end.”

Martha Boone, the principal at Bangor Christian Schools, declined to comment on the ruling, which was applauded by Michael Bindas, an attorney at the Institute for Justice, who argued for the plaintiffs.

The “decision makes clear, once and for all, that the government may not bar parents from selecting religious schools within educational choice programs, whether because of their religious affiliation or the religious instruction they provide,” Bindas said in a statement released by the Virginia-based institute.

Nathan Diament, executive director for public policy at the Union of Orthodox Jewish Congregations of America, concurred with the ruling.

“A state discriminating against religion — as Maine did in its tuition assistance program — is just as unconstitutional as a state promoting one particular religion,” Diament said in a statement. “The Supreme Court has advanced religious liberty for all Americans of all faiths.”

Maine Attorney General Aaron Frey said he was “disappointed and disheartened,” and that the state will explore legislative avenues “to address the court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.”

“While parents have the right to send their children to such schools,” Frey said in a statement, “it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.”

The plaintiffs, Frey said, wanted state tuition aid for schools that promote one religion to the exclusion of others and discriminate against LGBTQ people. The law at issue said that districts without public high schools could pay other public or private schools to accept their students, but that those schools could not be sectarian.

The state attorney general argued in court filings that private “schools that promote a particular religion or present material through a religious lens are not eligible. The education provided in such sectarian schools is simply not comparable to a public education.”

Temple Academy, according to its website, “exists to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view.”

In addition, the website states, the academy strives “to provide every student with the opportunity to accept Jesus Christ as their personal Savior” and “to foster within each student an attitude of love and reverence for the Bible as the infallible, inerrant, and authoritative Word of God.”

Nicholas Jacobs, a government professor at Colby College in Waterville, said the ruling is expected to be felt beyond the several thousand families directly affected in Maine.

“So much of what government does isn’t actually done by government,” Jacobs said. “The court is saying here ... that if government is going to rely on private organizations and civil society to do this, then religious groups and religious nonprofits have to have the same access as these secular organizations.”