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Conservative justices push to give religious schools public funding

In the minority Wednesday, the court's liberal justices questioned why taxpayer dollars should support discriminatory education. 

WASHINGTON (CN) — During nearly two hours of oral arguments Wednesday morning, the conservative justices on the high court seemed to side with parents who want Maine to provide public funds for their children’s religious education. 

“They are seeking equal treatment, not special treatment,” Justice Brett Kavanaugh said. “They're saying don't treat me worse because I want to send my children to a religious school.” 

The justices gave a multitude of hypotheticals on what schools the state would consider public or secular education versus sectarian education and therefore not worthy of funding. The answer they derived from these questions was that the state was discriminating based on religious beliefs. 

“We have said that that is the most basic violation of the First Amendment religion clauses, for the government to draw distinctions between religions based on their doctrine,” Chief Justice John Roberts said. 

Justice Samuel Alito agreed. 

“You really are discriminating on the basis of religious belief,” the Bush appointee said. 

Alito pressed beyond religion and asked about critical race theory — an academic framework for studying systematic racism in the United States. 

“Would you say the same thing about the school that teaches critical race theory,” Alito asked.

The case before the court originates from a lack of high schools in rural Maine. The state solved this problem by reimbursing parents for their children’s education in a public or private school of their choosing, with the stipulation that it cannot be a sectarian school with religious affiliation. 

Two parents — David and Amy Carson and Troy and Angela Nelson — sued the state’s Department of Education Commission over the policy citing discrimination. A federal judge rejected the parents’ claims, and they appealed to the Supreme Court after the First Circuit affirmed, distinguishing the sectarian schools for their integration of religious teachings into their curriculum. 

Oral arguments on Wednesday came after the court ruled last year in Espinoza v. Montana Department of Revenue that states could not exclude families and schools from student aid programs based solely on the school’s religious status. This case focuses on religious use: the difference hinging on the fact that the schools in this case inculcate religious teachings throughout their curriculum. 

“The reason that schools that promote a particular faith are not eligible to participate is simple, Maine has determined that as a matter of public policy, public education should be religiously neutral,” said Christopher Taub, chief deputy attorney general for Augusta, Maine. “This is entirely consistent with this court's holdings. Public Schools must not inculcate religion and should instead promote tolerance of divergent religious views.” 

The sectarian schools where the parents want to enroll their children have religious-based standards for student admissions and faculty hires. Some of these policies such as excluding students and teachers who identify as homosexual and requiring parents to sign an agreement aligning with the school’s beliefs on abortion, the sanctity of marriage and homosexuality. One of the schools also teaches that men are the leaders of the household. 

Justice Sonia Sotomayor said the courses — such as sciences — that the schools teach would be limited by the religious viewpoints woven through their curriculum when compared to other public schools. She said the whole point of the parents wanting to send their children to these schools is that they teach all subjects through a religious lens. 

“The reason why this school is important to these parents is because they don't teach just secular subjects — that they teach all subjects through the lens of their religion,” the Obama appointee said. 

The liberal justices on the court asked many questions surrounding the schools’ discriminatory policies.  

“These schools are overtly discriminatory, they're proudly discriminatory,” Justice Elena Kagan said. “Other people won't understand why in the world their taxpayer dollars are going to discriminatory schools.” 

Maine Attorney General Aaron M. Frey said the state’s anti-discrimination laws prevent it from using taxpayer dollars to fund schools with these policies. 

“Schools receiving taxpayer funds are appropriately subject to the Maine Human Rights Act (MHRA), which prohibits discrimination against individuals on the basis of several protected classes,” Frey said in a statement following oral arguments. “The two religious schools that the parents in this case want to send their children to have made it clear that they are not interested in complying with the MHRA and, therefore, these schools have not even applied to the Maine Department of Education to be eligible to participate in Maine’s tuition program. Put differently, these schools want to continue to discriminate against individuals based on their status in a protected class and that is inconsistent with the protections afforded to all Mainers under the MHRA.”

Justice Neil Gorsuch questioned meanwhile why the justices should be concerned with the school’s discriminatory policies. 

“We're not being called upon today to interpret Maine’s anti-discrimination laws, and we don't need to do that to decide this case,” the Trump appointee said.  

Michael Bindas, an attorney with the Institute for Justice representing the parents, said religious schools teach religion so it would not make sense to distinguish between status versus use. 

“Religious schools, after all, teach religion. … Of course, religious schools also teach secular subjects and satisfy every secular requirement to participate in the tuition assistance program,” Bindas said. “It is only because of religion that they are excluded. You can call that discrimination based on religious use, you can call it discrimination based on religious status, call it what you will. Either way, it is discrimination based on religion, and either way, it is unconstitutional.” 

Sotomayor disagreed with the idea that these parents were being discriminated against. 

“These parents are put through the same choice that every other parent in Maine is put through,  either get a free public education, secular education or pay for your religious training,” Sotomayor said. 

Following oral arguments, Frey said he believed Maine put a compelling case before the justices. 

“Attorneys from my office argued strongly today that Carson v. Makin is different from other cases the Supreme Court has considered recently; and made a compelling case for the constitutionality of Maine’s system of public education, and for how it benefits all Mainers,” Frey said. “It would be inappropriate if Maine taxpayers were forced to fund schools which exclude and discriminate against other Mainers, as that would erode the foundational principles of a public education that is diverse and accessible to all.”

Bindas, on the other hand, felt confident the justices would rule in favor of his clients. 

“From everything we saw in the courtroom today, we're very confident that the justices are going to agree with us,” Bindas told reporters after the arguments. “Parents know best what's going to work for their child's education. Parents should be empowered to make that choice and the state has no business denying an otherwise available financial assistance benefit to a family simply because a family thinks that a religious school is the best school for their child. That's what Maine is doing and it's unconstitutional.” 

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Education, Government

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