Supreme Court rules Maine’s tuition program to cover religious schools: NPR

The Supreme Court

Drew Angerer/Getty Images

The Supreme Court

Drew Angerer/Getty Images

The U.S. Supreme Court handed school-choice champions a major victory on Tuesday.

By voting 6-3 along ideological lines, the court opened the door further for those seeking taxpayers’ money for religious schools.

In its clearest statement yet, the court said that if a state uses taxpayers’ money to pay for students attending non-religious private schools, it must also use taxpayers’ money to pay for attendance at religious schools. Thus, for all practical purposes, the decision invalidates provisions in 37 state constitutions that prohibit the direct or indirect use of taxpayers’ money in religious schools.

The court’s ruling came in a case from Maine, a state so rural that half of school districts do not have a public high school. The state is addressing that problem by contracting with nearby high schools in other districts to take in those students. The state pays the average cost of tuition, just over $11,000. In addition, it pays the same amount for nearly all 4,800 students attending 11 private, non-sectarian academies, many on green spaces in the center of the cities where they are located.

What the state does not do is pay the tuition fees for students who attend private religious schools.

But now the Supreme Court has ruled that Maine’s system of excluding tuition from students attending religious schools is unconstitutional. The court said the First Amendment provision guaranteeing the free exercise of religion requires neutrality to religion, and Maine’s system of only paying for tuition in non-religious schools demonstrates not neutrality, but hostility to religion.

Chief Justice John Roberts, writing for the court’s conservative majority, said that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not violate the establishment clause.”

The decision could, in theory at least, significantly increase state aid to religious schools. For decades, the court has deferred state constitutions, many of which contain provisions prohibiting direct and indirect state aid to religious schools. But in recent years, conservative majorities of the courts have supported state check programs for religious schools, and other programs that use tax breaks and other mechanisms to facilitate attendance at religious schools.

Now, in the Maine case, the majority of courts have gone further by stating that when a state provides benefits to a non-religious private school, it must provide the same benefits to a religious school.

Only one other state, Vermont, has a program like the one in Maine. But the court’s decision could bring more, mostly indirect, benefits to religious schools. School voucher programs, tax credits to fund college scholarships, and tax-free educational savings accounts.

Most importantly, the decision is likely to provide an incentive for some private religious schools to seek public funding as charter schools. Until now, charter schools were considered public schools and religious schools did not qualify for charter status. But now some in the school-choice movement are trying to change that, by taking it to court to challenge the exclusion of religious schools from charter status.

As for Maine, it faces a dilemma. The state legislature won’t be back to work until September, too late to pass an alternative system for educating its students from more rural areas. The 4,800 students currently attending the non-religious independent academies could be reassigned to public schools elsewhere. But then the academies, many of which have long histories in their districts, would run out of students. So it is possible that the academies would become charter schools, and thus part of the public school system.

Alternatively, the state legislature may decide to pay tuition fees for students attending religious schools. But that would probably cause other legal problems. The religious schools at the center of Tuesday’s case pride themselves on teaching students religious views; for example, they do not accept gay students, gay teachers, or the children of gay parents. It is not clear whether their curriculum is in line with the state curriculum. All that would put those schools at odds with state laws. And it’s not even clear that any of the schools actually want to be included in the state education program, especially if, as almost certainly, contracting with the state means having obligations attached to it.

The court’s three liberals, Judges Stephen Breyer, Elena Kagan and Sonia Sotomayor, disagreed with Tuesday’s ruling.

In her dissenting opinion, Sotomayor wrote: “This Court continues to dismantle the wall of separation between church and state that the Framers have been fighting for… The consequences of the Court’s rapid transformation of the Religion Clauses should not be underestimated.”

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