In the 2021 case Carson v. Makin, the U.S. Supreme Court struck down a Maine law which required schools that receive public assistance to be “non-sectarian,” or non-religious. The program in question was the state’s town tuition program, which gives students tuition assistance to attend public or private schools if the town in which they reside does not operate a school at the child’s grade level. In the 1980s, however, lawmakers felt that this tuition assistance should not support students attending religious schools, and so they passed a law prohibiting the practice.
The law was on the books for about 40 years until the Supreme Court found it unconstitutional in Carson v. Makin. The court cited that private schools had a right to religious advocacy under freedom of speech like any other private organization. Simultaneous to that case, Maine lawmakers amended the state human rights act to ensure that religious schools could not receive public funds, even if the Supreme Court ruled otherwise. Recently, a federal court in Maine held that tying funding to student religious freedom requirements does not violate Carson v. Makin, even though the insidious goal of this law is to yet again deny town tuitioning to religious schools.
Carson v. Makin, like Espinoza v. Montana Department of Revenue, is one of many recent cases in which the Supreme Court has ruled that public funding for private schools cannot be denied because of the schools’ religious nature. Carson arguably contains even more critical issues, as it doesn’t just concern schools’ right to be religious, but also parents’ rights to send their children to a school practicing the religion of their choosing. The pre-Carson town tuition requirement did not technically require all schools in Maine to be areligious. Still, it put many parents in a situation where the state would effectively pay them to send their child to a non-religious school, but they couldn’t receive assistance if they chose to enroll at a religious school.
The new way that Maine is denying religious school students access to town tuition is by tying it to whether the school guarantees respect for students’ freedom of religion and sexual/gender identity. While at first seeming logical, as public funding should not be used to fund institutions that discriminate, when one considers the principles most of Maine’s religious schools hold, the effect of this change is noticeable.
Catholic schools, for example, hold wholly different views on sexuality than many people in Maine government. As a result, they might have to support lifestyles the church doesn’t approve of for their students to receive town tuitioning. Even worse is the implications of the forced freedom of religion for students, as the law might force Christian schools to allow other religions’ prayers and practices to take place on school grounds. While this has not happened yet, what happens if a rebellious high school student claims to be an avowed Satanist and a Catholic school in Maine is forced to allow prayers to Satan to occur during school mass?
This predicament has led one of Maine’s Catholic schools to sue the Maine Commissioner of Education, seeking a preliminary injunction stopping the law from being enforced against them. In St. Dominic Academy v. Makin, the US District Court for Maine ruled against the preliminary injunction. The ruling stated that while the new law burdened the Catholic school’s right to exercise their religion, Carson v. Makin only applies to laws that specifically and directly target religious conduct for distinctive treatment.
The Court made several incorrect assumptions, one of which is that religion isn’t implicated by regulating activity that directly relates to religion. A school restricting what religions can be practiced and advocated for on school grounds is necessarily a religious behavior, and thus, regulating that conduct regulates the school’s practice of religion.
Another incorrect assumption was their statement that the plaintiffs could not prove the bill was motivated by circumventing Carson v. Makin. The plaintiffs attempted to prove this by showing Maine Speaker of the House Ryan Fecteau tweeting that the legislation was passed because they “Anticipated the ludicrous decision from the far-right SCOTUS.” They also cited a press release by Maine A.G. Aaron Frey saying that he would be exploring with the legislature a way to address the court’s decision and to ensure town tuition money does not promote what he considers bigotry.
The Court said that while this was evidence concerning a single lawmaker, it did not prove the legislature as a whole shared this motive in passing the law. However, the Court failed to state what evidence would prove the Legislature’s intention. Somehow, a public statement by multiple government officials and Maine’s lower house leader is insufficient. The obvious implication is that the Catholic school would have needed statements from a majority of both houses of the Legislature on the bill’s motivation. That means they would need tweets from 76 Representatives and 18 Senators to meet the standard the court implied.
In making this ruling, Judge John Woodcock allowed Maine to circumvent the Carson v. Makin ruling and, thus, limited the ruling to only laws explicitly referencing religion. He references that his ruling will likely be appealed, and I agree. Hopefully, appellate courts will see the obvious conflict between this ruling and the spirit, if not the letter, of Carson v. Makin, allowing religious schools access to town tuitioning.