John G. Geppert, Jr.
Partner
201-896-7097 jgeppert@sh-law.comWhat NJ Schools Need to Know About the Supreme Court’s Decision in Carson v. Mankin
Author: John G. Geppert, Jr.|June 27, 2022
The United States Supreme Court issued a flurry of high-profile opinions in recent weeks, including an important First Amendment decision involving school funding…
What NJ Schools Need to Know About the Supreme Court’s Decision in Carson v. Mankin
The United States Supreme Court issued a flurry of high-profile opinions in recent weeks, including an important First Amendment decision involving school funding…
The United States Supreme Court issued a flurry of high-profile opinions in recent weeks, including an important First Amendment decision involving school funding. In Carson v. Makin, 596 U.S. ____ (2022), the Court held that Maine’s exclusion of religious school options from its tuition assistance program violates the United States Constitution.
Facts of the Case
Maine, the most rural state in the country, provides tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition.
Under the tuition assistance program, participating private schools must meet certain requirements to be eligible to receive tuition payments, including either accreditation from the New England Association of Schools and Colleges (NEASC) or approval from the Maine Department of Education. Since 1981, Maine has also excluded tuition assistance payments to sectarian schools. The provision, which was at the center of the Supreme Court challenge, provides that “[a] private school may be approved for the receipt of public funds for tuition purposes only if it. . . . [i]s a nonsectarian school in accordance with the First Amendment of the United States Constitution.”
Petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both BCS and Temple Academy are accredited by NEASC, because they do not qualify as “nonsectarian”, they are ineligible to receive tuition payments under Maine’s tuition assistance program. Petitioners sued the commissioner of the Maine Department of Education, alleging that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected the petitioners’ constitutional claims and granted judgment to the commissioner. The First Circuit Court of Appeals upheld the religious exclusion, reasoning that it does not bar students from choosing to attend schools with a religious status, but rather bars them from using their aid to attend schools that provide religious, or “sectarian,” instruction.
Supreme Court’s Decision
By a vote of 6-3, the Supreme Court reversed. It held that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause. As Chief Justice John Roberts wrote on behalf of the majority, “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”
In reaching its decision, the majority relied on two recent decisions involving the Free Exercise Clause. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ____ (2017), the Supreme Court held that the State of Missouri violated the Constitution when it denied a playground resurfacing grant to the Trinity Lutheran Church of Columbia based solely on its status as a religious institution. According to the Court, the Free Exercise Clause did not permit Missouri to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”
In Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), the Supreme Court held that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status. “A State need not subsidize private education,” the Court concluded, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
According to the majority, the “unremarkable” principles applied in Trinity Lutheran and Espinoza “suffice to resolve this case.” As Chief Justice Roberts noted, just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments. And like the daycare center in Trinity Lutheran, the religious schools, in this case, are disqualified from this generally available benefit “solely because of their religious character.” The majority also compared the case to Espinoza, where the Court considered a state benefit program that provided public funds to support tuition payments at private schools and specifically carved out private religious schools from those eligible to receive such funds, noting that the program in Espinoza and Maine’s program disqualify certain private schools from public funding “solely because they are religious.”
Chief Justice Roberts went on to explain that a law targeting religious conduct for distinctive treatment will rarely survive strict scrutiny. The majority further found that this was not one of those rare cases. “The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion,” The Chief Justice continued, “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
The majority rejected the First Circuit’s characterization of Maine’s tuition assistance program as distinguishable from Trinity Lutheran or Espinoza. Chief Justice Roberts first addressed the First Circuit’s holding that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” According to the majority, the statute “does not say anything like that.” Rather, the benefit provided by statute is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education.
The majority next considered the First Circuit’s attempt to distinguish the case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were “solely status-based religious discrimination,” while the challenged Maine provision “imposes a use-based restriction.” For the first time, the Court made clear that the “prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.” As Chief Justice Roberts explained, “In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why.”
Justice Stephen Breyer authored a dissent, which was joined by Justice Elena Kagan and Justice Sonia Sotomayor in part. “We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Justice Breyer wrote. He further argued:
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?
The majority responded: the “dissents are wrong to say that under our decision today Maine ‘must’ fund religious education.” A State “need not subsidize private education. But once it decides to do so, it cannot disqualify some private schools solely because they are religious.”
Key Takeaway
The Supreme Court’s decision is limited to Maine’s novel education funding scheme, which is largely necessitated by the rural nature of the state. However, as the dissenters noted, the ruling has the potential to reach other types of education funding.
With this in mind, we encourage education officials to review the ruling and contact John Geppert or other experienced Scarinci Hollenbeck education counsel with any questions or concerns, at 201-896-4100.
What NJ Schools Need to Know About the Supreme Court’s Decision in Carson v. Mankin
Author: John G. Geppert, Jr.
The United States Supreme Court issued a flurry of high-profile opinions in recent weeks, including an important First Amendment decision involving school funding. In Carson v. Makin, 596 U.S. ____ (2022), the Court held that Maine’s exclusion of religious school options from its tuition assistance program violates the United States Constitution.
Facts of the Case
Maine, the most rural state in the country, provides tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition.
Under the tuition assistance program, participating private schools must meet certain requirements to be eligible to receive tuition payments, including either accreditation from the New England Association of Schools and Colleges (NEASC) or approval from the Maine Department of Education. Since 1981, Maine has also excluded tuition assistance payments to sectarian schools. The provision, which was at the center of the Supreme Court challenge, provides that “[a] private school may be approved for the receipt of public funds for tuition purposes only if it. . . . [i]s a nonsectarian school in accordance with the First Amendment of the United States Constitution.”
Petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both BCS and Temple Academy are accredited by NEASC, because they do not qualify as “nonsectarian”, they are ineligible to receive tuition payments under Maine’s tuition assistance program. Petitioners sued the commissioner of the Maine Department of Education, alleging that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected the petitioners’ constitutional claims and granted judgment to the commissioner. The First Circuit Court of Appeals upheld the religious exclusion, reasoning that it does not bar students from choosing to attend schools with a religious status, but rather bars them from using their aid to attend schools that provide religious, or “sectarian,” instruction.
Supreme Court’s Decision
By a vote of 6-3, the Supreme Court reversed. It held that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause. As Chief Justice John Roberts wrote on behalf of the majority, “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”
In reaching its decision, the majority relied on two recent decisions involving the Free Exercise Clause. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ____ (2017), the Supreme Court held that the State of Missouri violated the Constitution when it denied a playground resurfacing grant to the Trinity Lutheran Church of Columbia based solely on its status as a religious institution. According to the Court, the Free Exercise Clause did not permit Missouri to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”
In Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), the Supreme Court held that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status. “A State need not subsidize private education,” the Court concluded, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
According to the majority, the “unremarkable” principles applied in Trinity Lutheran and Espinoza “suffice to resolve this case.” As Chief Justice Roberts noted, just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments. And like the daycare center in Trinity Lutheran, the religious schools, in this case, are disqualified from this generally available benefit “solely because of their religious character.” The majority also compared the case to Espinoza, where the Court considered a state benefit program that provided public funds to support tuition payments at private schools and specifically carved out private religious schools from those eligible to receive such funds, noting that the program in Espinoza and Maine’s program disqualify certain private schools from public funding “solely because they are religious.”
Chief Justice Roberts went on to explain that a law targeting religious conduct for distinctive treatment will rarely survive strict scrutiny. The majority further found that this was not one of those rare cases. “The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion,” The Chief Justice continued, “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
The majority rejected the First Circuit’s characterization of Maine’s tuition assistance program as distinguishable from Trinity Lutheran or Espinoza. Chief Justice Roberts first addressed the First Circuit’s holding that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” According to the majority, the statute “does not say anything like that.” Rather, the benefit provided by statute is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education.
The majority next considered the First Circuit’s attempt to distinguish the case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were “solely status-based religious discrimination,” while the challenged Maine provision “imposes a use-based restriction.” For the first time, the Court made clear that the “prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.” As Chief Justice Roberts explained, “In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why.”
Justice Stephen Breyer authored a dissent, which was joined by Justice Elena Kagan and Justice Sonia Sotomayor in part. “We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Justice Breyer wrote. He further argued:
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?
The majority responded: the “dissents are wrong to say that under our decision today Maine ‘must’ fund religious education.” A State “need not subsidize private education. But once it decides to do so, it cannot disqualify some private schools solely because they are religious.”
Key Takeaway
The Supreme Court’s decision is limited to Maine’s novel education funding scheme, which is largely necessitated by the rural nature of the state. However, as the dissenters noted, the ruling has the potential to reach other types of education funding.
With this in mind, we encourage education officials to review the ruling and contact John Geppert or other experienced Scarinci Hollenbeck education counsel with any questions or concerns, at 201-896-4100.
