Editor’s note: The following is from the July 9 Vermont Independent Schools Association VISA Update.
The U.S. Supreme Court has agreed to hear a case that bears directly on an important open question relating to use of public funds to tuition school-choice students to religious schools. In Espinoza v. Montana Dept of Revenue, the Supreme Court held last year that a state may not exclude families and schools from participating in a student-aid program based on a school’s religious status. That ruling has resulted in some Vermont school districts now tuitioning students to religious schools.
The Court did not resolve the question of whether a state may nevertheless exclude families and schools based on the religious use to which a student’s aid might be put within a school. The new case — Carson v. Makin — states the question this way: Does a state violate the Religious Clauses or Equal Protection Clause of the U.S. Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction?
Carson v. Makin originated in Maine, where over half of the school districts do not operate their own high schools and instead pay for students to attend public or independent schools, both inside and outside the state. The plaintiffs argued exclusion from the program violated their constitutional rights including their rights to exercise their religion. The U.S. First Circuit Appeals Court upheld Maine’s religious exclusion on the ground that the exclusion does not bar students from choosing to attend schools with a religious status but bars them from using their aid to attend schools that provide relig-ious, or “sectarian,” instruction. The case will be argued in autumn of 2022.