Here's the Biggest Supreme Court Case No One's Talking About

Justices are expected to authorize vouchers at religious schools

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December 7, 2021

The Biden administration plans to push the Supreme Court to dismiss a school-voucher case on a technicality, fearing that a ruling that allows state funds to go toward religious uses will throw open public coffers to religious schools.

The Biden Justice Department during oral arguments on Wednesday will press the Court to dismiss the case. The plaintiffs have a leg up heading into the argument because the Court said in decisions from 2017 and 2020 that religious groups can't be excluded from public benefits because of their religious identity.

The case, ​​Carson v. Makin, involves two sets of parents from Maine who are seeking a wider distribution of state tuition assistance for religious schools. The Biden administration's stance is a sign the Justice Department anticipates losing the case, which would be a blow to Democrats and their union allies. 

Democrats and left-wing education groups oppose vouchers on the grounds that they siphon taxpayer dollars away from public schools and dilute the political power of teachers' unions—a powerful Democratic constituency—which rely on public education budgets and healthy membership rolls for influence. The nation's largest teachers' unions have filed briefs in Wednesday's case and are counting on the administration to head off defeat.

The case marks another point of intersection between Biden's Justice Department and the National School Boards Association, which filed a brief backing the government. The Washington Free Beacon was first to report that the NSBA coordinated with the White House before it sent a letter to the FBI that requested an investigation of parents who protest curriculum changes involving racial and sexual topics.

Maine offers tuition assistance for students who want to attend private high schools because public education is difficult to provide in the state's sparsely populated western and northern regions. Eligible private schools must be nonsectarian and cannot offer religious instruction, according to state law. The plaintiffs are two families that want to use state tuition assistance to send their children to evangelical schools.

The administration's chief argument is that the case should be dismissed because the plaintiffs don't have standing. It's unclear whether the two Christian schools implicated in the case, Temple Academy in Waterville and Bangor Christian Academy, will take tuition assistance from the state. Doing so could obligate them to comply with non-discrimination laws contrary to their beliefs, including a prohibition on discriminating against gays and lesbians in hiring.

Temple and Bangor Christian Academy both indicated they do not hire LGBT people for teaching positions, according to court filings.

Plaintiffs don't have standing to bring a lawsuit unless they can show their injury will be rectified by a favorable court order. If the religious schools simply will not take taxpayer dollars, the plaintiffs' injury can't be redressed by a judge. Therefore, the argument goes, they don't have standing and the case should be dismissed.

The administration's wonkish approach to the case is reflected in the advocate it is sending to the Court. Malcolm Stewart, a career Justice Department lawyer rather than a political appointee, will argue Wednesday's case for the administration.

The Court has said public benefits can't be withheld from religious groups simply because of their status. But it hasn't said whether benefits can be withheld because the recipients will put it toward religious uses, such as teaching their faith. That's the issue at the heart of the Carson case. Some of the conservative justices have said in past cases that they see the status-use line as a distinction without a difference.

While Biden's Justice Department is working the inside lane by pressing the standing argument, Maine authorities and national education groups are urging the Court to strengthen the barrier between church and state.

Lawyers for Maine are relying on straightforward constitutional arguments. The states, they say, can structure their education systems to be completely neutral on religion. Maine's policy simply reflects its interest in a secular school setting, their lawyers say.

The National Education Association, the American Federation of Teachers, and the National School Boards Association have filed legal briefs supporting Maine's law in the High Court. The NEA and the AFT are the nation's largest teachers' unions and have long opposed any public aid to religious institutions. The NSBA likewise said Maine's law is important for protecting students from pernicious influences.

"By including a tuition program in its public school offerings, the state is not giving up authority to ensure students who use the program experience an education free from discrimination and indoctrination," the NSBA's brief reads.

A decision in the Carson case is expected by summer 2022.