Supreme Court rules for state aid to religious schools

June 21, 2022 Updated 3:03 PM PT

WASHINGTON — The Supreme Court on Tuesday extended its support for religious schools, ruling that parents who send their children to these institutions have a right to tuition aid if the state provides it to similar private schools.

The 6-3 decision in the Carson vs. Makin case from Maine could open the door to including religious schools among the charter schools that are privately run but publicly financed.

Previously the high court had said that giving public funds to church schools violated the 1st Amendment’s ban on an “establishment of religion.”

But over the last five years, the court’s conservative majority has flipped the equation and ruled it is unconstitutional discrimination to deny public funds to church schools simply because they are religious.

Maine has an unusual subsidy program because many of its small towns do not have a public high school. In such cases, students may enroll in a private school and the state pays their tuition.

Since 1980, however, the state has not extended these subsidies to students in church schools, apparently concerned it would be unconstitutional to do so.

The court majority said Tuesday that was a mistake.

Chief Justice John G. Roberts Jr. said that discrimination based on religion “was odious to our Constitution and could not stand.”

“The state pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” he said, and thereby violates the 1st Amendment’s protection for the “free exercise of religion.”

In dissent, the three liberal justices accused the majority of knocking down the barriers against government support for religion.

“This court continues to dismantle the wall of separation between church and state that the framers fought to build,” said Justice Sonia Sotomayor. “This court should not have started down this path five years ago. ... Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” she said, closing her dissent “with growing concern for where this court will lead us next.”

In response, Roberts rejected the idea that the court’s opinion means Maine “must” fund religious education. “Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not ‘forced upon’ it,” he said.

Among the six conservative justices in the majority, all of them attended Catholic schools except for Justice Samuel A. Alito Jr., who went to public elementary and secondary schools in New Jersey.

Tuesday’s ruling highlights the court’s profound shift on religion.

The conservative justices cast aside the principle of church-state separation and argued it grew from an anti-Catholic bias in the late 19th and early 20th centuries.

“It was an open secret that ‘sectarian’ was code for ‘Catholic,’” Roberts wrote in 2020, describing the common state laws that prohibit sending tax money to schools affiliated with a church. These restrictions were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,” he said in Espinoza vs. Montana.

Justices Clarence Thomas and Neil M. Gorsuch have said they would go further and uphold laws or policies that favor religion.

“The modern view which presumes that states must remain ... virtually silent on matters of religion is fundamentally incorrect,” Thomas wrote in an earlier school case. “Properly understood, the Establishment Clause does not prohibit states from favoring religion.”

The court’s opinion on Tuesday says nothing about charter schools, but some legal experts on the right predict they may face a challenge if school officials refuse to consider funding religious options.

“The court said again no state may set up a program of private school choice and exclude funding for faith-based schools,” said Nicole Garnett, a Notre Dame law professor.

But it is not clear that charter schools will be deemed a program of private school choice, she said, and “it’s probably a long way down the road” before the Supreme Court considers the question.

Recently, lower courts have split on whether charter schools are public or private. Last week, the 4th Circuit Court by a 10-6 vote ruled that a charter school in North Carolina must comply with the Constitution because it receives public funds.

At issue was a dispute over whether girls could be required to wear dresses. The school maintained it was private and shielded from anti-discrimination laws, but the appeals court disagreed, pointing to the fact that 95% of its funding comes from the government.

Reacting to the ruling, advocates for school choice and religious liberty praised the decision.

“If the pandemic has taught us anything, it’s that parents want and deserve better school choices for their kids. Religious families, and even families that aren’t religious but see the value in faith-based schools, should not be cut out from programs that help parents make the best educational choice for their kids,” said Ashley McGuire, senior fellow with the Catholic Assn.

The Coalition for Jewish Values was one of several Jewish groups applauding the outcome.

“The Maine law was obviously prejudicial against religiously motivated parents, forcing them to choose between shouldering secular education costs entirely on their own or denying their children the opportunity to attend a religious school,” Rabbi Yaakov Menken said.

Advocates of church-state separation called the ruling a major setback.

“This ruling deals another major blow to religious freedom. It entirely ignores the Establishment Clause and further erodes the wall between separation of church and state,” said Jesse O’Connell, a vice president of the Center for American Progress.

“The two schools at issue in this case have admissions and hiring policies that allow them to openly discriminate against the LGBTQ community or religious minorities,” he said. “The government should not be required to use public funds to support religious education, especially for schools that discriminate in their hiring or admissions.”

The Supreme Court ruling will have no immediate impact in California, where — with some exceptions — private schools do not receive public funds.

California does provide public funds to charter schools, which are privately operated but are considered public schools under state policy.

“I think this would have to go another step or two, in terms of constitutional doctrine, to have any kind of direct effect on California, any significant direct effect,” said Gary Orfield, a UCLA education professor. “I think what Californians need to worry about is this trajectory rather than the immediate impact.”

Times staff writer Howard Blume in Los Angeles contributed to this report.