Posted on July 29, 2022
Important Takeaways: A program in Maine that provides tuition assistance for students to attend schools out of their district cannot refuse to provide assistance for attendance at a religious school. The program pays tuition to send students who do not have a secondary school in their district and no contract with a secondary school outside of their district to a school of their choice. The requirements for the program are that the school has to meet accreditation or attendance standards set by the state and cannot be religious.
Facts: Maine has a tuition assistance program for students who live in districts without a secondary school or a contract with a particular school in a different district. The program pays for tuition at private schools that meet accreditation or state attendance standards but not for tuition at religious schools. Parents who wanted to send their children to religious schools sued and said the rule against tuition for religious schools violated the Free Exercise Clause and Establishment Clause of the First Amendment and Equal Protection under the Fourteenth Amendment.
The United States Supreme Court held the nonreligious requirement violates the Free Exercise Clause. Requirements like these, showing different treatment based on religion, have to meet strict scrutiny. This means the state has to have a compelling state interest that is narrowly tailored when designing the requirement. In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court held that you cannot discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of a religious character. Here, by not allowing tuition to be paid to religious schools, students are being disqualified from a public benefit (tuition assistance) based solely on the religious nature of the school. Also, according to the Supreme Court’s holding in Espinoza v. Montana Department of Revenue, since Maine offers its citizens a benefit, schools cannot be disqualified solely because they are religious. Espinoza established that a provision of the Montana Constitution that did not allow government aid to religious schools violated the Free Exercise Clause because it prohibited families from using scholarships at religious schools. The Court found again that individuals cannot be excluded from a public benefit based on religion.
Here, the requirement that the school is not religious does not survive strict scrutiny and is not narrowly tailored to a compelling state interest. The interest in antiestablishment does not justify requirements that exclude some members of the community from a generally available public benefit in the form of tuition assistance. The state does not have to pay for private education but rather can increase the number of schools, options, or transportation. Since Maine does not provide any of these alternatives and chooses to have this tuition assistance program, they cannot exclude religious schools from it.
What this means: Requirements or restrictions cannot exclude some members of the community from a generally available public benefit. If a school district chooses to provide tuition for students to attend a school not in their district, the district cannot condition this tuition to only non-religious schools. This aligns with previous the Supreme Court decision Espinoza, where it held the government could not deny aid to a school based on religion.
What is the name of the case and where you can read it: Carson v. Makin, Supreme Court, June 21, 2022. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin by email or at 406-542-1300 to discuss these issues.