U.S. Supreme Court accepts another religious school tuition case

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.

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One thought on “U.S. Supreme Court accepts another religious school tuition case

  1. The 1st Amendment clearly states that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…’. The question is, if the U.S. Congress is forbidden to be involved, whether establishing a religion or prohibiting the free exercise thereof, are the States forbidden from doing so too?

    In her concurrence with the decision in the 2002 Cleveland School Choice case, ZELMAN v. SIMMONS-HARRIS, Justice Sandra Day O’Connor addressed at length the aspect of funding religious schools with taxpayer funded vouchers. She considered various Federal funding of religious hospitals to Pell Grants used to attend religious schools like Notre Dame, noting that “A significant portion of the funds appropriated for these programs reach religiously affiliated institutions, typically without restrictions on its subsequent use.”


    “Courts are instructed to consider two factors: first, whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services; second, and more importantly, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid.”

    O’Connor went on to say that: “There is little question in my mind that the Cleveland voucher program is neutral as between religious schools and nonreligious schools” and “…the Cleveland program does not establish financial incentives to undertake a religious education”. “In my view the more significant finding in these cases is that Cleveland parents who use vouchers to send their children to religious private schools do so as a result of true private choice.”

    The SCOTUS made the right decision in the Espinoza case. But it remains to be seen whether or not the court will be consistent with its previous decisions given the current political divide to which it is, ostensibly, immune.

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