

Supreme Court: Schools offering religious instruction may be entitled to state tuition aid

A 6-3 majority ruled Maine's denial of taxpayer money to religious schools was discriminatory. The court's liberal wing said the decision erodes separation of church and state.

John Fritze
  • Maine's rural school districts gave parents a stipend to use for private, secular instruction.
  • The Supreme Court ruled the ban on using the money at religious schools violates the First Amendment.
  • Justice Sotomayor dissented, writing "this court continues to dismantle the wall of separation between church and state."

WASHINGTON – The Supreme Court on Tuesday shot down a state prohibition on using public money to attend schools that offer religious instruction, the latest case in which the high court has permitted taxpayer funds to be used for religious purposes. 

At issue was an unusual program in Maine that provides subsidies for education in rural districts that don't have their own high school. The state allows parents in that situation to use the money that would have been spent locally to send their children to other public or private schools – but not to programs that offer religious instruction.

Chief Justice John Roberts wrote the opinion for a 6-3 majority of conservative justices, holding the state's prohibition violates the First Amendment.

"The state pays tuition for certain students at private schools – so long as the schools are not religious," Roberts wrote. "That is discrimination against religion."

Though the decision's immediate impact was limited to Maine, critics – including the three liberal justices who dissented – questioned whether it might have broader implications for school choice and other government-funded programs elsewhere.  

"This court continues to dismantle the wall of separation between church and state that the framers fought to build," Associate Justice Sonia Sotomayor wrote. "With growing concern for where this court will lead us next, I respectfully dissent."

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Given the number of rulings in which the nation's highest court has come down on the side of protecting religious exercise, the outcome wasn't a surprise. What's less clear is how the decision may affect similar controversies, such as the use of taxpayer funding for religious schools outside of the narrow circumstances involved in the case.

"The court is forcing taxpayers to fund religious education," said Rachel Laser, president of Americans United for Separation of Church and State. "The court has opened the door to government-enforced tithing, an invitation religious extremists will not ignore."

Maine Attorney General Aaron Frey, a Democrat, said he is "terribly disappointed" by the decision and intends to ask state lawmakers to ensure taxpayer money isn't sent to schools that "promote discrimination." Critics, including Associate Justice Stephen Breyer in his dissent, said some of the schools at issue have policies of denying enrollment to students based on sexual orientation or gender identity.

"Public education should expose children to a variety of viewpoints," Frey said. "The education provided by the schools at issue here is inimical to a public education."

Maine's critics countered that the prohibition blocked parents from making their own decisions for their children. 

"Parents have a constitutional right to choose such schools for their children, and the court today held that a state cannot deny them that choice in programs that allow for other private options," said Michael Bindas, a senior attorney with the Institute for Justice who represented the parents challenging the Maine policy.

Dave and Amy Carson want to use a Maine education grant to send their daughter, Olivia, to a religious school.

Two families that wanted to use the state subsidy for religious education sued in 2018, asserting that Maine's policy violated their First Amendment right to practice religion free from government interference. Maine countered that using public money for religious instruction would create a bevy of problems – including how to accommodate students who belong to religions for which there are no schools.

In the opinion Tuesday, Roberts pushed back on the notion that the court is forcing school districts to fund religious schools. Maine doesn't have to fund private schools at all, he asserted in the opinion. The state could increase transportation options for students in remote areas, so they could more easily access other public schools. Or Maine could "operate boarding schools of its own."

The dispute was similar to one the Supreme Court considered in 2020. Roberts wrote for a 5-4 majority then that a Montana scholarship program could not exclude religious schools. Roberts said a state doesn’t have to provide money to private schools, but if it chooses to do so, it can’t "disqualify some private schools solely because they are religious."

That decision dealt with a school that had religious ties but didn't explicitly teach religion in the classroom. Lower federal courts have distinguished between denying taxpayer money to an entity because of its status as a religious institution and withholding money used for a religious purpose, such as teaching the Bible. It's a subtle distinction but one with potentially wide implications: Some schools may have a sectarian affiliation, but their curriculum may look more or less like that of secular public schools.  

In the Maine case, the Boston-based U.S. Court of Appeals for the 1st Circuit ruled for the state, concluding that the funding was not denied because the schools are Christian but because of the Christianity the schools teach. Some of the high court's conservative justices questioned whether there's a meaningful difference between the two.

In the opinion Tuesday, the court threw cold water on that distinction, suggesting any attempt to separate a school's religious status from its instruction would "raise serious concerns about state entanglement with religion and denominational favoritism."

Some experts see potential impact far beyond Maine in the case if it is read as requiring states to fund religious schools in programs where they currently do not. The ruling could implicate public funding for schools more broadly, even in traditional public districts without subsidies, experts suggested.

"This ruling affirms that parents should be able to choose a school that is compatible with their values or that honor and respect their values," said Leslie Hiner, vice president of legal affairs at EdChoice, a group that supports school choice programs. "By shutting out parents with certain values, that’s discrimination run rampant."

Others said the decision will undermine traditional public schools.

"Forcing American taxpayers to fund private religious education ... erodes the foundation of our democracy and harms students," said Becky Pringle, president of the National Education Association, a teachers union. "The Supreme Court's job is to interpret the Constitution, not invent doctrines to promote radical education policy outcomes."