In March, The National Legal Foundation filed a “friend of the court” brief urging the Supreme Court to take a case (Carson v. Makin) that could end government discrimination against religious schools in the funding context. The case involves a Maine school program that pays the private school tuition for students who live in an area that lacks a public high school. The schools eligible to receive this tuition are, according to the Maine Department of Education, private secular schools and nominally religious schools, but not schools that intentionally teach subjects from a religious (biblical) perspective.
The NFL’s attorneys reminded the Court of the legal confusion created decades ago when courts picked through religious schools’ practices to determine whether any money was actually being spent on religion. Although much of this confusion has evaporated over the past 30 years as the Court has largely repudiated that practice, there still remains the question of whether an intentionally religious school can receive public funding if it uses those funds for religious teaching (whether, for example, it is paying the teacher for a Bible class, new Bibles for the chapel, or teaching courses from a religious perspective).
The First Circuit Court of Appeals (Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico) said, no, the school cannot receive this money and use it for religious purposes. This appears to contradict the 2015 ruling of the Tenth Circuit Court of Appeals (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) that the schools could receive this money, that circuit reasoning that it violated both the Establishment Clause and the Equal Protection Clause for a government to determine which religious schools were “too religious” to fund.
Likely because of this split between the two circuits, plus the tension of the First Circuit’s decision with the Court’s own decision in the 2020 case of Espinoza v. Montana Department of Revenue, in which the Court struck down a similar discriminatory funding practice in Montana, the Court accepted this case for review. Now that it has, we will have the opportunity to file a second brief.
We hope that the Court will use this case to end completely its past practice of deciding just when teaching in a religious school is “too religious” and to confirm that, when funding of education is made generally applicable, religious schools may not be left out because of their religious beliefs and practices. Such a practice has no place in America where, in the words of the famous Northwest Ordinance, it was once recognized that “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”