Since 1947, one subject in education has regularly come up in the Supreme Court more often than any other: disputes over religion.
That year, in Everson v. Board of Education, judges upheld a New Jersey law that allowed school boards to reimburse parents for transportation costs to and from schools, including religious ones. According to the First Amendment, “Congress shall not make any law with respect to an established religion, or prohibit the free exercise thereof”—an idea the courts often interpreted as requiring a “wall of separation between church and state”. She goes. However, in Everson, the Supreme Court upheld the law as not violating the First Amendment because children, not their schools, were the primary beneficiaries.
This is known as the “Child Benefit Test,” an evolved legal idea used to justify state aid to students attending religious schools. In recent years, the court has expanded the limits of what assistance is allowed. Will it push them further?
This question will hit the headlines on December 8, 2021, when the Court hears arguments in a case of Maine, Carson v. Makin. Carson has drawn intense interest from educators and religious-freedom advocates across the country—as evidenced by the large number of amicus curiae, or “friends of the court,” filed by groups interested in the results.
Thanks to the school choice movement—which advocates giving families more choices beyond traditional public schools—Carson calls for more parents the opportunity to educate their children in line with their religious beliefs. Opponents fear it could set a precedent for requiring taxpayer dollars to fund religious teachings.
change in thinking of Scotus
As a faculty member that focuses on education law, I have often written about Supreme Court rulings regarding religion in schools. In the nearly 75 years since Everson, the court’s thinking about helping students attending religious schools has evolved.
In 1993, Justice heard Zobrest v. Catalina Foothills School District, which focused on a deaf student. Under the Persons with Disabilities Education Act, the Public School Board provided him with an interpreter. When he enrolled in Catholic High School, the judges ruled that the board still had to provide him with an interpreter because it was a discrete service that assisted him and no one else. Since then, the court has allowed more assistance to students attending religious schools.
Two recent decisions continue that trend. In the 2017 Trinity Lutheran Church of Columbia v. Comer, the court argued that states cannot deny public benefits generally available to religious people or religious institutions simply because they are religious. Three years later, in Espinoza v. Montana Department of Revenue, the court invalidated a provision in the state’s constitution that “denied public benefit to religious schools only because of the religious character of the schools.” This decision meant that parents in Montana who enrolled their children in faith-based schools could participate in the state’s tuition tax credit program.
education of mains
Maine’s constitution mandates the construction of public schools. But many rural towns do not have their own school systems: in fact, more than half of the 260 “school administrative units” in Maine lack a secondary school.
In areas without access to public schools, Maine allows students to attend other public or private schools at public expense, but not religious. State-sanctioned schools are required to be non-denominational, “in accordance with the First Amendment to the United States Constitution.”
Makin arose when three groups of parents unsuccessfully sued on behalf of their children, arguing that the rule discriminated on the basis of religion. The federal trial court in Maine ruled in favor of the state, confirming that its “tuitioning” statute did not infringe on the rights of parents or their children. On appeal, the First Circuit unanimously affirmed in favor of the state, rejecting all of the parents’ claims.
a closer look
First, the First Circuit set a requirement that schools be “non-sectarian,” not discriminate on the basis of religion alone, or punish plaintiffs’ rights to exercise their religion.
This is because the rule has a “use-based” limit – which could prove to be a significant difference. In other words, sectarian schools are denied funding not because of their religious identity, the First Circuit wrote, but “because of the religious use they will use.”
Restricting religion-based material is “perfectly lawful,” the court said, because “there is no question that Maine can require its public schools to offer a secular educational curriculum rather than a communal one.”
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The First Circuit also rejected the parents’ claims that Maine’s “non-sectarian” requirement violated their rights to freedom of speech, as it was enacted to provide secular post-secondary education to students and “Committed to providing no open forum to encourage diverse views from private speakers.”
Citing another case regarding Maine’s educational system, Ulit v. Maine, the court said: “The fact that the state cannot interfere with a parent’s fundamental right to choose religious education for their child, That doesn’t mean the state should fund that option.”
School-choice advocates hoped that Trinity Lutheran and Espinoza would strengthen the case for Maine parents, as they upheld the view that the First Amendment required the government to grant general benefits to religious institutions or individuals. , as long as it is not discriminatory or in favor of particular religions. But the courts made a distinction in these cases, and held that if parents wished to leave Maine’s free secular education in their public schools or “tuitioning” program, they were free to pay tuition at the religious schools of their choice. Huh.
The disagreement over the extent of the use of taxpayer funds to help students attending Carson’s religious schools is unlikely to end. However, it will likely provide an indication of the Supreme Court’s position on the future of child benefit testing, as it appears to be soft on its attitude to maintaining the wall of separation between church and state in matters of education and student support. . who attend religious schools.