On the very last day of its term, the U.S. Supreme Court announced it will hear a major educational choice case, the Institute for Justice’s tenth trip to the Supreme Court since its founding. (I discussed this case with Philanthropy Roundtable Vice President of Strategy and Programs, Debi Ghate, and Pacific Legal Foundation President, Steven Anderson, during the Roundtable’s April 2021 webinar, “Protecting Our Individual Rights: What Should the Supreme Court Weigh in On?”)
In Carson v. Makin, two Maine families, represented by IJ, are fighting to send their children to the schools their families choose—in this instance, religious schools—under Maine’s “tuitioning” system, the second-oldest educational choice program in the country. Since 1873, this system has paid parents in towns too small to support a public school to send their children to a school of their choice—public or private. For more than a century, that included religious schools. But in 1980, Maine’s attorney general released a flawed legal opinion that overrode parental choice and excluded religious schools from tuitioning.
That opinion was wrong then and even more so now. Last year, in another case litigated by IJ, the U.S. Supreme Court struck down a similar ban on private religious schools from a Montana choice program as a violation of the First Amendment. As Chief Justice John Roberts wrote for the majority in Espinoza v. Montana Department of Revenue, “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
Despite this decision, just a few months after Espinoza was handed down, the U.S. Court of Appeals for the First Circuit upheld the exclusion of religious schools from Maine’s tuitioning program. In its majority opinion in Espinoza, the Supreme Court held that Montana discriminated based on the religious “status” of a school and noted that it would save for another day the question of discrimination based on religious “use.” The First Circuit latched on to that slightly ambiguous language in Espinoza and ruled that while disqualifying a school based on its religious “status” was unconstitutional, it was perfectly permissible to discriminate based on religious “use,” i.e. prohibit parents from choosing schools with religious curricula.
Note that the court in Espinoza did not rule that religious use discrimination was constitutional. Only that it need not decide the issue at the present time. But unless it’s overturned, the First Circuit’s decision on the “status/use” issue could be employed by other courts and interfere with parents nationwide in exercising their constitutional right to educational choice. The court in the Maine case now has the opportunity to resolve this ambiguity once and for all.
As the pandemic has shown, the need for alternatives to public schooling has never been greater. Ensuring that families have the right to choose the best education for their children is vital to a free society. Since our founding nearly 30 years ago, IJ has been in court every day defending the constitutionality of educational choice. We have won a series of cases at the U.S. Supreme Court and in state supreme courts systematically removing legal barriers to parents choosing the best schools for the education of their children.
Thankfully, Espinoza along with deep dissatisfaction with the public school system status quo has led to an explosion of interest in choice, with over 15 states passing new or expanded programs in the last year alone. A victory in Carsonwill only accelerate this very encouraging trend.
Scott Bullock is the president and general counsel at the Institute for Justice, a nonprofit public interest law firm dedicated to advancing liberty.
