Recent changes may dampen the short-term effects of a U.S. Supreme Court ruling that tossed Maine’s ban on public funding of religious schools, but Tuesday’s decision could have long-term implications for the role of religion in American life.
A 6-3 majority of the high court ruled against Maine’s law, which allows students in towns without public high schools to use public money to pay tuition to attend public or private schools of their choice as long as they are not religious schools, finding it violated the free exercise clause of the First Amendment.
New anti-discrimination protections and other requirements for funding will likely mean few religious schools will apply for tuition. But there could be a legislative fight next year if conservatives seek to overturn a law that prevents religious schools from discriminating against LGBTQ students and employees. It could also be the start of greater attempts to integrate religion into public schooling under a conservative high court, one expert said.
“The court is on a long trend line to invite or allow religion into public lives,” said Steven Schwinn, a professor at the University of Illinois Chicago School of Law. “Whether the opinion invites religion into public schooling remains to be seen, but I wouldn’t be surprised if it does.”
The religious part of Maine’s tuition law dates back to 1981 and has been challenged several times. But the ruling in Carson v. Makin was signaled by justices last year and comes on the heels of other rulings on religion in public education, including that states cannot discriminate against religious schools in offering scholarships.
The state will review the decision and its effects on the tuition program, said Lindsay Crete, a spokesperson for Gov. Janet Mills. But she noted that the Democratic governor had signed a bill into law last year ensuring that religious schools do not discriminate against employees or students based on gender identity.
That was a bid to insulate public funding from the schools at the center of the lawsuit, Bangor Christian Schools and Temple Academy in Waterville. Both schools said while arguing the lawsuit that they would not change policies to accept state funding. They do not hire gay or transgender teachers and would not admit students who identify that way.
Attorney General Aaron Frey, a Democrat, was more strident, saying he intends to work with Mills’ office and the Legislature to “address” the court’s decision in state law.
“While parents have the right to send their children to such schools, it is disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear,” he said in a statement.
A Frey spokesperson said several bills related to the decision are expected to be introduced next year. Former Republican Gov. Paul LePage, who is running against Mills in 2022, applauded the ruling and previewed the coming debate, saying parents should have the right to decide their child’s educational future.
There are other factors that could be in play, including that Maine requires private schools to meet its basic requirements or be accredited by a New England association of schools and colleges. Michael Bindas, a lawyer who represented the plaintiff families in the case, noted the case did not address Maine’s new anti-discrimination protections and how that will factor into tuition is unclear.
But the national implications are much more obvious as 37 states had so-called Blaine Amendments as of 2020 that prohibit the public funding of religious schools. Bindas said that victory cannot be overstated, even as he pushed back against arguments that Maine’s tuition program would be funding religious education.
“Food stamps programs don’t fund grocery stores,” he said. “They provide funds to individuals to allow them to decide what stores to go to.”
But the public has an active interest in where government dollars go, especially in systems like public education that are subject to multiple levels of regulation, said Zach Heiden, the chief legal counsel for the American Civil Liberties Union of Maine, who argued that the high court’s decision makes it hard to predict what precedent it might overturn next.
“It suggests they’re not engaging in law here, but politics,” he said.