by Elise Spenner
At High School SCOTUS, we try to stand out from other Supreme Court coverage. It’s hard, because legal reporters are some of the best journalists around. But one thing we take advantage of that these reporters inherently lack is our youth — and the perspective that comes with viewing the courts from a different vantage point.
As a result, when cases about students, school, and teenagers come before the Court, we put a bit more effort into giving them thorough coverage. We tried to do so with Mahanoy v. BL, last year’s case about the regulation of off-campus student speech, and this year, I’m hoping to focus on Carson v. Makin, in which the Court will consider whether a Maine law that prohibits students from using tuition assistance at religious schools violates the Constitution.
Under its compulsory education law, Maine must ensure that every student receives a free secondary education. The state uses school administrative units (SAUs) that must do one of three things:
- Have a public secondary school
- Contract with a secondary school (either public or private) to provide the same privileges
- Pay for accepted students to attend a secondary school (either public or private)
The second and third options are only applicable if an SAU does not have a public secondary school. In Maine, most SAUs without a public secondary school rely on a contract with a secondary school: less than 5,000 students live in an area that utilizes the third option — a tuition assistance program where the state will pay for students to attend an “approved ” secondary school.
However, in these rare areas that rely on the tuition assistance programs, all participating private schools must meet certain criteria to be approved. Not only do they have to meet compulsory attendance requirements, but they must be classified as “nonsectarian.” Three families that live in an SAU because they are unable to use the tuition assistance to send their children to their preferred private school — one that the state deems “sectarian.”
To evaluate whether Maine’s policy is constitutional or violates religious liberties, the Court must consider whether the law is prohibiting tuition assistance because of the school’s status — that it is affiliated with a church or religion — or because of the planned use for the tuition assistance — faith-based curriculum and activities.
If the Court finds that Maine excludes “sectarian” schools purely because of their religious affiliation, the justices will most likely reiterate their decision in Espinoza v. Montana Dept. of Revenue. In Espinoza, Chief Justice Roberts wrote that restricting the use of state scholarships purely based on religious status is unconstitutional; the Court could apply the same reasoning to strike down Maine’s law.
However, if the Court determines that the restrictions is use-based — as the First Circuit did — the case gets more complicated.
In this scenario, the Court could look to Locke v. Davey, a 2004 decision holding that states are allowed to exclude theology majors from scholarship funding. The opinion by Chief Justice Rehnquist found that the government can choose to prohibit the use of public funding for specific religious instruction.
The First Circuit determined that the Maine exclusion resembles the law at issue in Locke: a use-based restriction that should be tested under rational basis review. Once the First Circuit established this framework, they concluded that the law was a constitutional attempt to restrict the tuition assistance program to schools that would provide similar education to a public school. This, they reasoned, advanced the legitimate state interest of ensuring a uniform secondary education for all students in Maine.
In their brief, respondents defended the line of reasoning established by the First Circuit, arguing that the benefit provided by Maine is entirely different from the benefit that Petitioners are asking for. Maine is attempting to provide each student with a “free public education.” Petitioners want “a publicly subsidized sectarian education.”
Petitioners pushed back, arguing that the use/status distinction mentioned above is meaningless. It shouldn’t impact the constitutionality of the law because “Discrimination is discrimination, whether the government claims to target those who are religious or those who do religious things.” Thus, the Maine law is unconstitutional under any exacting form of scrutiny, as the interest in creating a consistent “public education” experience isn’t compelling, substantial, or grounded in history.
Petitioners also advanced an argument under the Establishment clause, which prohibits the government from establishing a national religion or favoring one religion over another. When the state has wide discretion to assess whether a school’s curriculum and activities are religious, the result is “excessive government entanglement with religion.”
The Court will hear oral argument in Carson v. Makin on Wednesday, Dec. 8 — exactly one week after it hears Dobbs v. Jackson Women’s Health, a challenge to Mississippi’s ban on abortions after 15 weeks.
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