Since 1947, one subject in education has regularly come to the Supreme Court more often than any other: disputes over religion.

That year, in Everson v. Board of Education judges upheld a New Jersey law allowing school boards to reimburse parents for transportation costs to and from schools, including religious schools. According to the First Amendment, “Congress will not make any law regarding the establishment of a religion or prohibiting its free exercise” – an idea that courts often interpret as requiring “a wall of separation between church and state” . In Everson, however, the Supreme Court confirmed that the law did not violate the First Amendment because children, not their schools, were the primary beneficiaries.

This became known as the “family allowance test,” an evolving legal idea used to justify state support for students attending religious schools. In recent years, the court has broadened the limits of authorized assistance. Will it push them further?

This issue was in the spotlight on December 8, 2021, when the court heard arguments in a Maine case, Carson v. Makin. Carson has generated a great deal of interest from educators and religious liberty advocates across the country – as illustrated by the large number of amicus curiae, or “friends of the court,” briefs filed by interested groups. by the result.

For the school-choice movement – which advocates offering families more options beyond traditional public schools – Carson represents a chance for more parents to give their children an education that conforms to their religious beliefs. Opponents fear it will set a precedent by demanding taxpayer money to fund religious teachings.

SCOTUS ‘change of mind

As a faculty member who focuses on education law, I have often written about Supreme Court decisions regarding religion in schools. In the nearly 75 years since Everson, the court’s thinking about helping students attend religious schools has evolved.

In 1993, the judges heard Zobrest v. Catalina Foothills School District, which focused on a deaf student. Under the Disability Education Act, the public school board provided him with an interpreter. When he enrolled in a Catholic high school, the judges ruled that the board should always provide him with an interpreter because it was a low-key service that helped him and no one else. Since then, the court has given more aid to students attending religious schools.

Two recent judgments have continued this trend. In Trinity Lutheran Church of Columbia v. Comer of 2017, the tribunal ruled that states cannot deny religious persons or religious institutions generally available public benefits simply because they are religious. Three years later, in Espinoza v. Montana Department of Revenue, the court struck down a provision in the state constitution prohibiting “religious schools from receiving public benefits solely because of the religious nature of the schools.” The move meant parents in Montana who had enrolled their children in denominational schools could participate in a tuition tax credit program.

Teacher education

The Constitution of Maine requires the creation of public schools. But many rural towns do not have their own school system: in fact, of Maine’s 260 “school administrative units”, more than half do not have a high school.

In areas without access to public schools, Maine allows students to attend other public or private schools at state expense, but not religious schools. The state requires that approved schools be non-sectarian, “in accordance with the First Amendment to the Constitution of the United States.”

Carson v. Makin came about when three groups of parents unsuccessfully filed a lawsuit on behalf of their children, arguing that the rule was discriminatory on the basis of religion. Maine’s federal trial court ruled in favor of the state, saying its “schooling” status did not violate the rights of parents or their children. On appeal, the First Circuit ruled unanimously in favor of the state, rejecting all parental claims.

To look closer

First, the First Circuit ruled that the requirement that schools be “non-denominational” did not discriminate solely on the basis of religion nor punish the rights of complainants to practice their religion.

Indeed, the rule contains a “use-based” limitation, which can be a crucial distinction. In other words, sectarian schools are denied funding not because of their religious identity, the first circuit wrote, but because of “the religious use they would make of it.”

It is “entirely legitimate” to restrict religious content, the court noted, because “there is no doubt that Maine can require its public schools to offer a secular rather than a sectarian curriculum.”

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Circuit First also rejected parents’ claims that Maine’s “non-sectarian” requirement violated their rights to free speech, as it was enacted to provide students with secular high school education and “did not commit not to provide an open forum to encourage the diversity of perspectives of private speakers. . “

Quoting Eulitt v. Maine, another case involving the Maine education system, the court noted, “Just because the state cannot interfere with a parent’s basic right to choose a religious education for their child does not mean that The state must finance this choice. “

School choice advocates had hoped that Trinity Lutheran and Espinoza would strengthen the Maine parents’ case, as they supported the idea that the First Amendment requires the government to extend general benefits to religious institutions or individuals, as long as ‘it is not discriminatory or in favor of particular religions. But the courts have differentiated these cases and have held that if parents wish to forgo the free secular education offered by Maine in its public schools or its “schooling” program, they are free to pay the tuition fees in the schools. nuns of their choice.

The decision ahead

In argument before the Supreme Court on December 8, Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Barrett, appeared skeptical about the constitutionality of Maine’s education program. . These judges favor an “accommodating” interpretation of the religious clauses of the First Amendment – meaning that they tend to read the Constitution as requiring the government not to promote one religion over another, but that it does not at all forbid the government to get involved in religion. Therefore, they largely reject the “separation wall” on the issue of financial aid.

As such, those judges – a majority of the court – are likely to rule in favor of parents challenging the Maine program. For example, Kavanaugh said that “the discrimination against all religions in relation to secularism is in itself a kind of discrimination which the court called outrageous to the Constitution” – clearly alluding to Trinity Lutheran and showing his skepticism about to the explicit exclusion of religious schools by Maine.

The court is expected to deliver its judgment in Carson in late June or early July, towards the end of its term. The case is unlikely to end disagreements over the limits on the use of taxpayer money to help students attending religious schools. However, this will likely provide an indication of the Supreme Court’s position on the future of the family allowance test, as it appears to be loosening up in its stance of maintaining a wall of separation between church and state in matters of education and student aid. who attend religious schools.