Parents, Religious Schools Win at the Supreme Court | Opinion

All over America, parents are worrying about what their children are being taught in public schools. They know that critical race theory and other far-left ideologies are creeping into lessons. Many want to move their kids to a private religious school—but the cost of tuition imposes an impossible financial burden.

That is why many states are considering initiatives that allow taxpayer funds to help parents choose a faith-based school that meets their child's needs. Other states, gripped by anti-religious bigotry, are holding out against this liberating measure. So it's excellent news that the Supreme Court has overruled Maine's policy of denying public funds to private religious education for children even when there is no public school in their neighborhood.

Maine justified its discrimination by applying the loaded term "sectarian" to religious schools. The state operates a system where school districts without a public high school pay tuition, up to a statutory limit, for students to attend a public or private school. But since 1981 "sectarian" schools have been excluded from the program.

What does that mean, in practice? Maine's Department of Education defines a school as "sectarian" if it "promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith." For the 2021-2022 year, Maine approved 28 private secondary schools to receive public funds and denied 15 private "sectarian" schools. And 10 of those 15 banned schools just happened to be Catholic.

If you sense a whiff of historic prejudice here, you wouldn't be wrong. In the late 19th century, many states adopted provisions prohibiting public funds from going to religious institutions. The provisions were modeled after a failed amendment to the Constitution promoted by Maine congressman James G. Blaine amid a wave of anti-Catholic bigotry which included preventing Catholic schools from receiving any public funds. Curiously, it wasn't until the 1980s that Maine adopted its own version of the amendment—but it did so in an openly intolerant way influenced by modern secular ideology.

More recently, two families that qualified for Maine's voucher program, the Carsons and the Nelsons, wanted to send their children to Christian schools deemed "sectarian" by state officials. They decided to fight back against religious discrimination in court. This week, before the Supreme Court, they finally won. "Maine's 'nonsectarian' requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment," explained Chief Justice John Roberts for the 6-3 majority.

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This is not the first time the Supreme Court has struck down blatantly discriminatory restrictions on school choice initiatives. Just two years ago, it declared unconstitutional Montana's exclusion of religious schools from a state-sponsored tuition assistance program. Writing for the majority in Espinoza v. Montana Dept. of Revenue, Chief Justice Roberts explained that "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." The Court relied on Trinity Lutheran Church of Columbia v. Comer, a case decided just three years earlier, involving a Missouri state program that denied grants to qualifying nonprofit organizations if they were controlled by a church. Excluding church-run organizations from state grant programs, explained the Court, was "odious to our Constitution" and could not stand.

After Trinity Lutheran and Espinoza, states with school choice programs should have opened them up for all qualifying schools. In fact, Roberts explained that "the 'unremarkable' principles applied in Trinity Lutheran and Espinoza suffice to resolve [Maine's] case."

So why didn't Maine get the message?

One reason is the state's mistaken understanding of the Establishment Clause of the First Amendment. Since the 1980s, the Supreme Court has recognized, based on the history of the law's application, that the clause does not ban citizens' religious expression on public property or in publicly funded programs.

The religious liberty law firm Becket Fund for Religious Liberty, in an amicus brief filed with the Supreme Court in another case this term, explains that "despite these developments, lower courts and government officials at many levels seem to have a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since." As a result, government officials have "used [the clause] to censor religious expression from public transit, exclude religious participants from generally available funding programs, and even deny relief funds to houses of worship devastated by hurricanes." Maine's defense of its sectarian rule was one more example. This week's decision makes clear that permitting parents to include in their school choice religious schools doesn't unduly favor religion—but excluding these schools is unconstitutional hostility toward religion.

Another, more sinister, reason is that religious schools challenge the Left's stranglehold on American education by offering an alternative view of the world that is grounded in faith and acknowledges the right of parents to have a say in the education of their children.

School choice initiatives give parents the economic support to select the best school for their child. And after this ruling, excluding religious schools from school choice should finally be a thing of the past.

Andrea Picciotti-Bayer is Director of the Conscience Project.

The views expressed in this article are the writer's own.