Public funding of religious education offers another test for conservative high court

WASHINGTON (CN) — As school boards across the nation erupt with parents demanding more influence over their children’s education, the Supreme Court will hear a case on Wednesday over whether parents can use public funds to send their children to religious schools. 

The case stems from a unique issue affecting parents in Maine school districts but could have ripple effects throughout the country. 

“This is a religious exclusion case, and Maine’s a smaller state, but the underlying constitutional issue is one of great magnitude for all of the United States,” Arif Panju, an attorney at the Institute for Justice, said in a phone call. 

Those constitutional issues involve the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the 14th Amendment. 

As the majority of school districts in Maine do not have their own high schools, the state will reimburse parents for their children’s education in a public or private school of their choosing. Maine stipulates, however, that it will not provide reimbursements for sectarian schools with religious affiliation. 

The policy spurred a lawsuit from two sets of parents — David and Amy Carson and Troy and Angela Nelson — against the commissioner of the Maine Department of Education. Though a federal judge ruled that the parents had Article III standing, he nevertheless rejected their constitutional claims on the merits.

Last year meanwhile the Supreme Court ruled 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. A few months later when the First Circuit affirmed the ruling against the Carson and Nelson families, it distinguished the sectarian schools in Maine for their integration religious teachings into their curriculum. 

“Sectarian schools are denied funds not because of who they are but because of what they would do with the money — use it to further the religious purposes of inculcation and proselytization,” U.S. Circuit Judge David Barrow wrote for the panel. 

The Maine parents argue that they are being discriminated against for their religious beliefs and that the state’s policy is unconstitutional. 

“Our argument is that the right to choose a school that is best for your child — whether it's a school that focuses on STEM instruction or language immersion or one has robust arts instruction — that's a parent's choice,” said Panju, who represents the parents in the case. “And Maine is correct to allow parents to choose those schools or virtually any other school they think will best serve their kids, even outside of Maine … the state flatly bans parents from choosing schools that offer religious instruction and by singling out religion, and only religion, Maine violates the U.S. Constitution.”  

The state argues it is imposing a use-based restriction on the type of education it funds. Maine says it is preventing public funds from being used to promote and inculcate religious beliefs and “declining to subsidize religious exercise.” 

“Religious schools are excluded because the education they provide is not equivalent to a public education,” state Attorney General Aaron M. Frey said in an email. “Religious schools can and do advance their own religion to the exclusion of all others, discriminate in both the teachers they employ and the students they admit, and teach religious views inimical to what is taught in public schools. Parents are free to send their children to such schools if they choose, but not with public dollars.” 

The two schools to which the Maine parents want to use public funds to send their children to have religious-based requirements for student admissions and faculty hires. Both schools will not admit children who identify as homosexual, and one will not admit students whose parents are in a same-sex marriage. One of the schools teaches that men are the leaders of the household, while the other requires parents to sign an agreement in line with the school’s beliefs on abortion, the sanctity of marriage, and homosexuality. 

The court’s justices aren’t strangers to religious education. Justices Neil Gorsuch and Brett Kavanaugh attended Georgetown Prep, and the court’s newest justice, Amy Coney Barrett, attended a religious high school. Barrett also served on the board of a private Christian school with an anti-homosexual stance. 

The case has attracted attention from numerous religious and conservative groups who have filed briefs in the case. The case also captured the attention of 11 Republican senators — including Minority Leader Mitch McConnell — who filed a brief arguing that Congress has long been in favor of providing funding for religious education. 

“While making its funding available to both secular and sectarian organizations alike, Congress recognized the societal benefits that religious education often brought,” they say in their brief. “Rather than restricting the educational opportunities available to students by refusing funds to religious groups who wished to include religious teachings in their curricula, Congress acted to expand educational opportunities for all.” 

The National Education Association and the American Federation of Teachers also filed a brief in the case, arguing that states should be able to condition public funds on nondiscrimination standards. 

“While private schools are entitled to have different values, they are not entitled to the government’s financial assistance in such discrimination,” their brief states. 

The high court agreed to take up the case in July.

Follow @KelseyReichmann

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