Yesterday, the US Supreme Court heard a case that could profoundly affect the future of education in the United States.
Maine has about 180,000 students enrolled in grades K-12 distributed over 260 school districts. Because of the low population density in some districts, high school students must either attend school in another district or go to private school. Maine has a tuition assistance program that subsidizes tuition for students living in a school district that does not operate a secondary school to assist in this.
Until 1980, the student could use that assistance to attend any school. In 1980, that changed (see page 18 of the brief).
But the state barred sectarian options after the Maine Attorney General, in 1980, opined that including them as a choice in the program violated the federal Establishment Clause. Me. Op. Att’y Gen. No. 80-2 (1980) (J.A. 35-68). The legislature codified this bar in a statute providing that a student’s chosen school must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” 1981 Me. Laws 2177 (codified at Me. Stat. tit. 20-A, § 2951(2)).
Eventually, some parents sued, and the case made its way to the Supreme Court as Carson v. Makin. The parents claim that instead of bringing Maine into compliance with the anti-establishment clause of the First Amendment, it actually goes the other way and violates the First Amendment’s right to free exercise of religion.
When the smoke cleared, things were not looking good for Team Secular-Only. Here is a sampling from SCOTUSBlog’s post titled Conservative justices scoff at Maine’s exclusion of religious schools from tuition-assistance program.
Justice Samuel Alito noted that parents could use the tuition-assistance program to send their children to elite New England boarding schools like Phillips Andover, Phillips Exeter and Miss Porter’s School. Are those, Alito asked Taub, really the equivalent of a public education?
And Justice Amy Coney Barrett observed that not all schools are alike. For example, she told Taub, private schools are sometimes single-sex, even though public schools are normally co-educational.
But even beyond the premise of Maine’s argument, several of the court’s conservative justices made comments and asked questions indicating that they regarded the state’s exclusion of schools that teach religion as unconstitutional discrimination. Chief Justice John Roberts outlined a hypothetical involving two religious schools, only one of which is obligated by its religion to educate students in its faith. When Taub told Roberts that the school that educated students in its faith would not receive funding under the Maine program, while the other would, Roberts concluded that funding for the schools hinged on the beliefs of the two different religions. “And we have said,” he stressed, “that is the most basic violation of the” Constitution – “for the government to draw distinctions between religions based on their doctrines.”
Alito described a different religious school with religious beliefs much like the Unitarian Universalist Church that are infused into the school community – for example, that all people are created equally. When Taub seemed to indicate that such a school might be eligible to receive funds under the Maine program, Alito bridled. Unless you can say that you would treat the Unitarian Universalist school the same way as a Catholic or Orthodox Jewish school, Alito cautioned Taub, “I think you’ve got a problem.”
Justice Neil Gorsuch chafed at the suggestion that families who wanted a religious education for their children could send their children to religious instruction after school or on weekends. When the government creates a program like Maine’s, he emphasized, to argue that you don’t have to choose between participation in the program and your religion because you can send your children to Sunday school seems to favor religions for whom that is an adequate substitute and discriminate against those for whom it is not.
Justice Brett Kavanaugh also weighed in. He told Malcolm Stewart, the deputy U.S. solicitor general who appeared on behalf of the United States as a “friend of the court” supporting Maine, that the arguments by the federal government and Maine boiled down to the suggestion that, in a school district without a public school, one family could send their children to a secular private and receive the tuition assistance, while a neighbor who sends her child to a religious private school could not. “That’s just discrimination on the basis of religion right there at the neighborhood level,” Kavanaugh concluded.
In my view, Justice Alito was the hero yesterday. He elicited an admission that Marxism, communism, and white supremacy could be taught, but not religion.
Taub argued that the law should be obeyed because the state government of Maine is authorized to promote “religious neutrality.” Alito questioned this premise and asked if the state could fund a school that “instills a purely materialistic view of life.” Taub admitted: “Now it’s possible that, you know, down the road a school might appear that teaches something else, not religion but something else, say, Marxism or Leninism or, you know, white supremacy. . Obviously, these kinds of schools would do something completely incompatible with public education. “
Taub also admitted that the current law would not prevent such schools from being funded, but that “if a white supremacist school tried to participate in the Maine program, the legislature would move quickly to say, no, you know, to the – beyond being religiously neutral, you also cannot teach the principles of – of – of hate. “
Alito then asked if a school that taught religious tolerance would be ineligible, since it was a belief involving religion. Judge Elena Kagan then asked if Taub was convinced that a school that would teach white supremacy would never be funded; Taub reiterated that he was certain the legislature would act in this situation.
Then Alito dropped the hammer. I’m using this tweet by the rather dim Mark Joseph Stern, who claims to cover legal issues for the Slate group blog just because it’s fun.
— Mark Joseph Stern (@mjs_DC) December 8, 2021
Aside from the amusement value of watching the collective left act like a vampire doused with Holy Water on hearing a Supreme Court justice calling Critical Race Theory an ideology like Marxism, Leninism, or white supremacy, the cringe value of watching Maine’s advocate admit that under current law that racial superiority can be taught and Christianity can’t was priceless.
Justice Kagan raised the issue of religious schools that are overtly Christian and whose policies violate Maine’s “non-discrimination” laws.
The chief justice asked, for instance, whether the state would pay for tuition at a religious school whose doctrine calls for public service and that “does look just like a public school, but it’s owned by religion.” Mr. Taub said yes.
What about a religious school that “is infused in every subject with their view of the faith?” the chief justice asked. Mr. Taub said such a school would not qualify.
Chief Justice Roberts said that was an important concession. “So you’re discriminating among religions based on their belief, right?” he asked, adding that the government may not “draw distinctions between religions based on their doctrine.”
Michael Bindas, a lawyer with the Institute for Justice, a libertarian group that represents the families, said that “religious discrimination is religious discrimination.”
“Religious schools, after all, teach religion, just as a soccer team plays soccer or a book club reads books,” he said. “Yes, it is part of what they do. It is also part of who they are.”
One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian School, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.”
Supreme Court brief said.
Justice Elena Kagan said that point was not in dispute. “These schools are overtly discriminatory,” she said. “They’re proudly discriminatory. Other people won’t understand why in the world their taxpayer dollars are going to discriminatory schools.”
With all due respect to Kagan’s tightly wadded panties, that is irrelevant. In the 2020 case Espinoza vs. Montana Department of Revenue, the Supreme Court ruled that Montana could not fund private schools and exclude private religious institutions (read School Choice Scores Major SCOTUS Win as John Roberts Finally Finds a Conservative Issue He Supports). And, as the New York Times helpfully points out, “Chief Justice Roberts and other conservative justices made clear on Wednesday that they thought the distinction drawn in the Montana case, between religious status and religious activity, made no constitutional difference.”
One can’t always predict how the court will vote from the oral arguments but placing yesterday’s arguments in context with recent similar cases, Maine has a snowball’s chance in Hell of surviving. Six justices were vocally hostile to the law. The answers Maine and Joe Biden’s Solicitor General could provide were laughable. When this case is published, parents will have achieved just a bit more freedom from the brainwashing and indoctrination that the government-funded schools have elected to impose on our children.