Supreme Court Poised To Deliver Victory for School Choice in Religious Vouchers Case

Biden administration fails to get case tossed on technicality

Kevin Daley • December 8, 2021 5:30 pm

The Supreme Court looked likely on Wednesday to strike down a Maine law that excludes religious schools from a voucher program, strengthening parental rights to use taxpayer dollars at faith-based schools.

The Biden administration is trying to get the case tossed on a technicality to protect its teachers’ union allies. A majority of the Court was unpersuaded by the attempt during oral arguments Wednesday and viewed Maine’s law as biased against religion.

“[One] neighbor says, ‘We’re going to send our children to secular private school.’ They get the benefit. The next-door neighbor says, ‘Well we want to send our children to a religious private school.’ They don’t get the benefit. That’s just discrimination on the basis of religion right there at the neighborhood level,” Justice Brett Kavanaugh said.

Progressives are facing multiple prospective defeats on priority issues at the Court this term. The justices have signaled that they could overturn Roe v. Wade and expand the right to carry concealed firearms by June of next year. Despite the rightward trend, interest in court packing seems to be dissipating among establishment Democrats after President Joe Biden’s judicial reform commission refused to endorse court expansion or term limits in its final report.

School choice advocates are backing the attack on Maine’s law amid mounting frustration with public schools. Long-term suspension of in-person instruction and curricula changes on sensitive subjects like race and sex are fueling a nationwide spike in homeschooling and private school enrollment. The nation’s largest teachers’ unions filed amicus briefs supporting Maine’s law, and they’ve been outspoken in opposing vouchers on the grounds that they siphon taxpayer dollars out of public schools and dilute labor power.

Maine offers tuition assistance to families in the sparsely populated northern and western regions of the state, where some school districts cannot maintain a public high school. Affected students can pick a different public school, or enroll in a private school on the state’s dime. Under Maine law, eligible private schools must be non-sectarian and cannot evangelize their students in a particular faith.

The two plaintiff families in Wednesday’s case want to use state money to send their children to religious schools, Temple Academy in Waterville and Bangor Christian School. The Court said in 2017 and again in 2020 that faith-based institutions can’t be disqualified from government programs available to everyone just because of their religious affiliation. Maine tried to distinguish its program from those cases Wednesday by saying its law aims to prevent taxpayer financing of formal religious instruction.

That distinction didn’t get much traction with the justices. What matters, several justices said, is that the states can’t disfavor faith-based groups once it makes a public benefit available to all-comers.

“Our case law suggests that discriminating against all religions … is discriminatory just as it is discriminatory to, say, exclude the Catholic and the Jewish and include the Protestant,” Kavanaugh said.

Several justices were bothered that Maine allows a few nominally religious private schools to participate in the voucher program. Despite their religious affiliation, those schools are eligible for vouchers as long as they don’t evangelize or lead their student bodies in regular liturgy. Chief Justice John Roberts said different religions place different priorities on evangelizing and communal worship, so Maine’s policy penalizes a particular set of religious practices.

“We have said that that is the most basic violation of the First Amendment religion clauses,” Roberts told Maine deputy attorney general Christopher Taub.

The Biden administration and the Court’s liberal justices looked for ways to toss the case or limit its reach.

Justice Department lawyer Malcolm Stewart noted that Temple Academy and Bangor Christian have not indicated that they will participate in Maine’s tuition assistance program. He said the schools themselves wouldn’t have a basis for suing unless they affirmatively declared they will take state money. It would be strange, he said, to let parents bring a suit when the schools are undecided. He pushed the Court to dismiss the case on that basis, but a majority of the Court did not appear persuaded.

Justice Elena Kagan seemed to say the Court could limit its decision to the unique facts of Wednesday’s case. Public education is available almost everywhere in the country, Kagan said. The only reason Maine crafted this program is to accommodate “a very small number of students living in isolated areas,” she said.

A decision focused on the facts on the ground in Maine would limit its precedential value for future voucher cases, a hollow school choice victory the Court’s liberals might be willing to live with.

A decision in Wednesday’s case, No. 20-1088 Carson v. Makin, is expected by summer 2022.