A majority of U.S. Supreme Court justices on Wednesday appeared sympathetic to claims by families in Maine that the exclusion of religious schools from a state tuition program for towns without their own high schools is a form of impermissible religious discrimination.
The argument, lasting nearly two hours, was fast-moving and engaging, touching on a range of topics that included the potential for religious strife; hypothetical schools organized to promote Marxism, racial supremacy, or critical race theory; and LGBTQ rights.
鈥淎s I understand it, [the parents] are seeking equal treatment, not special treatment,鈥� Justice Brett M. Kavanaugh said during arguments in (Case No. 20-1088). 鈥淭hey鈥檙e saying don鈥檛 treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.鈥�
Chief Justice John G. Roberts Jr., the author of the court鈥檚 two most recent decisions requiring states to include religious schools in aid programs, told a lawyer for the state that if Maine was excluding a private school that infused religion throughout its educational program, then 鈥測ou鈥檙e discriminating among religions based on their belief.鈥�
The lawyer representing Maine pushed back.
鈥淭he reason that schools that promote a particular faith are not eligible to participate is simple,鈥� said Christopher C. Taub, the state鈥檚 chief deputy attorney general. 鈥淢aine has determined that, as a matter of public policy, public education should be religiously neutral.鈥�
But Michael E. Bindas, a lawyer with the Institute for Justice arguing on behalf of two Maine families who have sought to select conservative Christian schools for their children to attend at state expense, leaned hard on the religious discrimination argument.
鈥淩eligious schools ... teach religion, just as a soccer team plays soccer or a book club reads books,鈥� he said. 鈥淥f course, religious schools also teach secular subjects and satisfy every secular requirement to participate in the tuition assistance program. It is only because of religion that they are excluded.鈥�
The justices dig deep into details of Maine鈥檚 program
The case is about Maine鈥檚 tuition program for some 4,500 students (out of a state public school enrollment of 180,000) and the state鈥檚 long tradition of requiring its towns without high schools of paying to send their students to public or private schools elsewhere. Since 1980, the state has permitted only 鈥渘on-sectarian鈥� private schools to participate in the tuition program, barring those it deems to be promoting a particular faith or belief system.
Justice Elena Kagan suggested that Maine鈥檚 program 鈥渋s different from a typical school choice program. ... This is really a default program for a very small number of students living in isolated areas where the state has decided 鈥� it does not have the resources to provide public schools.鈥�
Bindas responded by noting that for more than a century, Maine allowed religious schools to participate in this program, until a 1980 state attorney general opinion concluded that such arrangements presented a problem under the First Amendment鈥檚 prohibition on government establishment of religion.
鈥淔or a century, religious schools could participate. And for a century, that was fine,鈥� Bindas said. 鈥淭his was not about providing a substitute for public education.鈥�
Several of the court鈥檚 more-conservative members were struck by the fact that Maine has approved out-of-state schools for inclusion in the tuition program and a few schools which have had some religious character, such as regular chapel service.
鈥淪uppose parents want to send their child, using this money, to an elite private school, Exeter, Andover, Miss Porter鈥檚,鈥� Justice Samuel A. Alito Jr. said. 鈥淭hat would be OK, right?鈥�
Taub said yes, because those schools are religiously neutral and offer an education that was comparable to a Maine public school education.
鈥淚f you went into any private school, even take Andover Academy, I mean, certainly, there are going to be trappings there that are going to be much different than trappings in a public school,鈥� Taub said. 鈥淏ut, at the end of the day, your chemistry class is going to be taught the same as a public school chemistry class.鈥�
Maine parents are evidently responsible for any difference between the regular tuition at such an elite school and the roughly $11,000 in tuition provided by the state under the program. Only one out-of-state school is approved for the program this school year.
Some justices expressed concern about state education 鈥渂ureaucrats鈥� reviewing the curriculum and policies of religious schools to determine whether they are too sectarian under Maine鈥檚 rules.
鈥淪o we鈥檝e never really had a hard case,鈥� Taub said. 鈥淚n 20 years worth of records, we鈥檝e identified three schools where there was any issue raised about whether they were eligible.鈥�
One was a seminary school that was 鈥渃learly ineligible,鈥� he said. Another was a school that didn鈥檛 respond to requests for more information. And a third was a school with a chapel that was able to satisfy state officials that there were no mandatory religious services for students, he said.
Questions about how certain religions would be treated
Alito asked about a school affiliated with a religious group that infuses its religious beliefs into all aspects of the community, and its 鈥渟alient religious beliefs鈥� are that all people are created equal and that nobody should be subjected to any form of invidious discrimination, and that everyone is worthy of respect.
When Taub said that would be pretty close to a public school, which also promotes values such as public service and kindness to others, Alito pounced.
鈥淲ell, then you really are discriminating on the basis of religious belief,鈥� he told Taub. 鈥淲hat I described is, I think, pretty close to Unitarian Universalism, isn鈥檛 it? And that is a religious community. 鈥� Unless you can say that you would treat a Unitarian school the same as a Christian school or an Orthodox Jewish school or a Catholic school, then I think you鈥檝e got a problem of discrimination among religious groups.鈥�
Questions about hypothetical Marxist, white supremacist, or 鈥榗ritical race theory鈥� schools
Taub said the state has considered whether certain private schools might come along with themes that would be inconsistent with public education, such as Marxism or Leninism, or white supremacy. Such schools would likely not be approved for the tuition program, he said.
鈥淐learly, those kinds of schools would be doing something completely inconsistent with a public education,鈥� he said.
Alito asked, 鈥淲ould you say the same thing about a school that teaches critical race theory?鈥�
Taub hemmed and hawed a bit. 鈥淔rankly, I don鈥檛鈥擨 don鈥檛 really know exactly what it means to teach critical race theory,鈥� he said. 鈥淏ut I will say this, that if teaching critical race theory is antithetical to a public education, then the legislature would likely address that.鈥�
Justice Amy Coney Barrett observed that 鈥渁ll schools, in making choices about curriculum and the formation of children, have to come from some belief system.鈥� How would state officials know whether a religious school taught that 鈥渁ll Catholics are bigoted鈥� or took a position in the 鈥淛ewish-Palestinian conflict鈥� if they were not examining the 鈥渂elief systems鈥� of the school, she wondered.
Taub said that 鈥渋f a Department of Education official sees information that that the school seems to be teaching antireligious views, that would raise a red flag.鈥�
Concerns about other forms of discrimination and 鈥榬eligious strife鈥�
On the liberal wing of the court, Justice Stephen G. Breyer asked about the policies of the Maine private schools where the parents in the case have sought to send their children at state expense, Bangor Christian Schools and Temple Academy.
鈥淭here are beliefs that no gay students, no gay teachers, the man is superior to the woman, and a few other things like that,鈥� Breyer said.
Bindas said some issues about the schools鈥� policies are unclear in the record before the court, and that in any event Maine鈥檚 antidiscrimination law, which covers sexual orientation and gender identity, provides an exemption to religious employers.
Breyer said he was worried about the 鈥渞eligious disputes鈥� a ruling for the parents might engender.
鈥淩eligious beliefs, of course, are are very sincere and held very strongly,鈥� he said. 鈥淎nd so there was a reason why this court鈥檚 cases have said we do not want to get into a situation where the state is going to pay for the teaching of religion by 鈥� practicing religious organizations, and that seems to me to stick its head up in a lot of different aspects of this case.鈥�
Bindas said that the court鈥檚 2002 decision in , which upheld a voucher program that included religious schools under the establishment clause, stands for the idea that when analyzing a state aid program that is based on the individual choices of parents, then 鈥渨hat the court called the specter of divisiveness [and] religious strife, does not bear on the constitutional analysis.鈥�
Kagan said the Zelman case was about whether a state could implement a choice program that included religious schools. In this case, the question is whether a state or locality must include religious schools in such a program.
鈥淲hat we have often talked about in our First Amendment religion cases is this idea ... that there is some amount of funding which is neither prohibited by the First Amendment nor commanded by the First Amendment,鈥� Kagan said.
Referring to the conservative Christian schools involved in the Maine case, Kagan said, 鈥淚 mean, these schools are overtly discriminatory. They鈥檙e proudly discriminatory. Other people won鈥檛 understand why in the world their taxpayer dollars are going to discriminatory schools. For any of a number of reasons, a state can say, 鈥榃e don鈥檛 want to play in this game.鈥欌��
The Biden administration backs the state鈥檚 restrictions
Deputy U.S. Solicitor General Malcolm L. Stewart argued in favor of Maine鈥檚 position that religious schools can be constitutionally excluded from the tuitioning program.
鈥淭he state is behaving neutrally in the sense that it will fund secular education and not religious education,鈥� Stewart said. 鈥淎nd that seems especially appropriate in a program like this one that 鈥� [is] not intended to provide the broadest range of possible choices.鈥�
A decision in the case is expected by late June.
