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Golden Ticket: Supreme Court Extends Vouchers to Religious Schools

Chief Justice John Roberts
Chief Justice John Roberts / Getty Images
• June 21, 2022 3:30 pm

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The Supreme Court said Tuesday that states must include religious institutions in school voucher programs, an important victory for school choice advocates.

In a 6-3 decision, the Court ruled that authorities in Maine are violating the First Amendment by excluding religious schools from a program that offers tuition assistance for students to attend private schools. Chief Justice John Roberts delivered the majority opinion over dissents from Justices Stephen Breyer and Sonia Sotomayor.

"There is nothing neutral about Maine’s program," Roberts wrote. "The state pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion."

Tuesday’s decision is the biggest victory the school choice movement has achieved in the Supreme Court. The ruling may precipitate a historic expansion of public aid to families who favor religious education. And it tracks a nationwide spike in home-schooling and private school enrollment, which followed years-long school closures and clashes over curricula on race and sex.

Families are fleeing the public school system in droves. About 1.2 million students left the public school system since the pandemic began, according to the American Enterprise Institute. The enrollment collapse is likely one reason the Biden administration and their teachers’ union allies filed amicus briefs backing Maine’s exclusionary program.

About half of Maine’s public school districts don’t operate their own high school. Families who receive vouchers from the state can use them at any private school, as long as it’s nonsectarian. Residents have capitalized on the program to enroll their children at boarding schools abroad or in some of the most exclusive prep schools in the nation, such as Miss Porter’s in Connecticut.

The Institute for Justice and the First Liberty Institute represent two plaintiff families who challenged the voucher program’s "no religion" bar on First Amendment grounds. Both families want to enroll their children in Protestant schools.

The Court sided with those families Tuesday, citing two cases touching church-state relations. The first case, from 2017, involved a Missouri grant for playground resurfacing that excluded a Lutheran preschool. The second, from 2020, involved a Montana law that barred religious schools from a publicly funded scholarship program.

Roberts wrote the opinions in both cases and emphasized that Missouri and Montana had discriminated based on religious identity. Those decisions did not say whether a state could withhold public benefits from religious institutions to stop taxpayer dollars from being put to religious uses, like a school liturgy or instruction in the faith.

Maine defended its program to the justices based on that distinction, saying it wanted to keep taxpayers from financing the practice of religion.

The chief justice wrote Tuesday that the status-use line is a distinction without a difference. Forming young people in a faith tradition is the core of a religious school’s identity, he said. And he warned that setting rules for the permissible use of public funds in religious settings would "raise serious concerns about state entanglement with religion and denominational favoritism."

"Any status-use distinction lacks a meaningful application not only in theory, but in practice as well," Roberts wrote.

"What a difference five years makes," Sotomayor countered in her dissent. "In 2017, I feared that the Court was leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the Court leads us to a place where separation of church and state becomes a constitutional violation."

The Biden administration similarly saw the writing on the wall and urged the justices to toss the case on a technicality.

Tuesday’s decision does not require taxpayer funding for religious schools. It stands for a modest proposition—states aren’t required to provide vouchers for school choice. But if they do so, they cannot exclude religious schools.

Teachers’ unions and the National School Board Association (NSBA) warned that a loss for Maine authorities would embolden religious extremists around the country. The NSBA’s amicus brief said Maine lawmakers never waived their right to protect students from "indoctrination" when it created the voucher program. And Randi Weingarten, the American Federation of Teachers president who championed school closures, said it was unfair to divert public money to schools that advocate religious orthodoxy on LGBT issues.

"It is wrong to force taxpayers to fund a school that discriminates against our most vulnerable students when the school is supposed to substitute for public education," Weingarten said in a statement on Tuesday.

The case is No. 20-1088 Carson v. Makin.