The U.S. Supreme Court recently decided Carson v. Makin, a case involving a state subsidy for private and public secondary schools. Maine is the most rural state in the United States, and due to its vast geography and low-density populations, many school districts throughout the state do not have secondary schools. Maine enacted legislation to assist families who reside in school districts that do not have secondary schools by providing state-subsidized funding for students to attend public or private schools of their choice in other parts of the state. One of the requirements of the program, however, is that the school be nonsectarian—i.e., not religious.
Two families sought to enroll their children in private religious schools and applied for the state-assisted tuition program to offset their tuition costs. They were denied assistance because the schools were sectarian, and they sued the state of Maine on the basis that the nonsectarian requirement violated the Free Exercise Clause of the First Amendment. The Supreme Court found that the nonsectarian requirement of Maine’s program violated the Free Exercise Clause. The Court opined that once a state decides to subsidize private education, which it does not have to do, it cannot then disqualify some private schools solely because they are religious. The Court noted that private schools throughout Maine that did satisfy the requirements for tuition assistance, including being nonsectarian, could vary drastically by, among other things, location, tuition costs, and subjects taught. Thus, the State was not solely subsidizing an equivalent to public school but rather providing tuition assistance for students to choose to attend a vast array of different schools throughout the State. The Court reasoned that denial of a neutral benefit based on a private citizen choosing to attend a religious institution does run afoul of the Free Exercise Clause.
This case highlights an important and emerging trend in the Supreme Court’s recent decisions regarding government subsidies and the Free Exercise Clause. Following on the heels of two recent decisions, Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue, the Court again found that limiting government funding or benefits to only non-religious recipients violates the Free Exercise Clause while not running afoul of the Establishment Clause. Based on the Court’s analysis, state funding programs will likely be invalidated if they restrict benefits based on a school’s religious status. Public school funding may be impacted by this decision because states may seek to expand voucher programs to include more private schools or eliminate voucher programs that include private schools altogether.