Tuesday, June 21, 2022

Supreme Court Rules Maine Cannot Exclude Religious Private Schools from Aid - The Larger Question

    Today in Carson v. Makin, No. 20-1088, the Supreme Court ruled that Maine cannot exclude religious private schools from a state tuition program.   According to NBC News, under the state tuition program in Maine, taxpayer money is made available to families in remote areas that lack public high schools.  Under the state law, these families could use taxpayer money to send their children to public or private schools in other communities, as long as the schools were not “sectarian,” i.e., did not promote a particular belief or faith system and teach “through the lens of this faith.”  It was a 6 to 3 vote against the Maine law led by a conservative majority.  Chief Justice John G. Roberts Jr. wrote for the majority and stated the ruling does not require states to support religion.  He notes that it requires states that choose to subsidize private schools not to discriminate against religious ones.  In separate dissents, Justice Sonia Sotomayor and Justice Stephen G. Breyer strongly objected on separation of church and state grounds.  A full copy of the decision may be found here

    One of the lawyers for the families who challenged the Maine law summed up the decision as “a major step for religious schools to receive the same kind of government aid as other private schools.”  Even if one agrees that religious private schools should not be treated differently than non-religious private schools, an important and long-standing threshold question remains:  Should taxpayer money be made available for private school tuition at all?  


Khrista McCarden

Hoffman Fuller Associate Professor of Tax Law

Tulane Law School


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