Carson v Makin

            Many parents across the country face the decision of sending their children to private versus public schools. For those who are pro-school choice, the decision is an essential one for parents, greatly influencing their children’s education and future. Maine’s town tuitioning program was started in 1873, being the 2nd oldest school choice program in the country. If a municipality neither maintains a public secondary school nor contracts for secondary school services, the Maine law requires the municipality to pay for the student’s tuition at a public or private secondary school. However, in 1980, Maine Attorney General Richard Cohen wrote an opinion that the State paying a student’s tuition to attend a religious private school of their choice violates the Establishment Clause of the 1st Amendment. Thus, in 1982, Maine Legislature passed a law to amend the school choice program: the tuition can not be used towards private religious schools, but rather secular private and public schools only qualify. Now, four Maine parents (David and Amy Carson, with Troy and Angela Nelson) are challenging this law, claiming the exclusion of private religious schools from the state’s school choice program violates the Free Exercise Clause, in that “all faith traditions should receive equal protection under the law — a central guarantee of the First Amendment’s Free Exercise Clause” (Brandon Winchel, UND). Pender Makin, the Commissioner of the Maine Department of Education, represents the State in this case.

On June 26, 2019, United States District Court Judge D. Brock Hornby ruled to uphold this Maine law. The U.S. Court of Appeals for the First Circuit again ruled in 2020 that this law is constitutional, reasoning that the use of tuition for religious instruction is unconstitutional. Further, Judge David J. Barron stated that this decision in effect shows “... no hostility toward religion,” given that the law was created “for the purpose of providing a substitute for the public educational instruction that is not otherwise offered.” Now, on Thursday, February 4th, 2021, a petition for certiorari was filed with the U.S. Supreme Court to reevaluate this ruling. Additionally, the University of Notre Dame Law School’s Religious Liberty Initiative has filed an amicus brief in support of the Maine families just last week, on March 11, 2021. 

The central question at hand is: does the state of Maine have the right to prohibit students qualifying for the tuition program to use the tuition to attend a religious private school?

In this case, I believe the concerns of the Establishment Clause far outweigh those of the Free Exercise Clause. As such, I agree with the State, that to allow the tuition towards the religious private schools would violate the Establishment Clause. Thus, I do think that Maine has the right to prohibit the tuition funding from this program to go towards a religious private school. This is following the precedent set in a very similar case in Maine, Eulitt v. State of Maine, Department of Education, with regards to the state’s choice program funding. In this case, Maine reasoned that while the State can not interfere with a parent’s right to choose a school, the State is not required to fund that choice. Also, they noted that there is no “substantial burden on religious beliefs or practices,” even though the religious school is being treated differently (it is important to remember that religions actually are treated differently in the Constitution). 

An essential part of cases with regards to government aid is indirect versus direct aid. We have seen arguments over whether funds towards a paper publication (Rosenberger v Rector) are too ‘direct’ towards funding a religion. In the case here of Carson v Makin, the funding money goes directly to the religious school in the form of tuition. From there, the school is allowed to do whatever they please with the money. This is a clear form of direct governmental aid to a religious organization, and thus should be prohibited at all costs by the State.

However, a heated (5-4) U.S. Supreme Court ruling from last year must be taken into account: Espinoza v. Montana Department of Revenue. The case in Montana concerned whether State scholarships may be used for religious education, and the Court ruled that prohibiting funding for religious schools would in fact violate the Equal Protection Clause, in putting religious schools at an unfair disadvantage. While I agree with the dissent in this case, who say that “neutral government action is not unconstitutional solely because it fails to benefit religious exercise,” this case can not be dismissed easily, as it sets a new precedent. In light of this ruling, I think it is important to now view Carson v Makin with respect to discrimination or unfair treatment towards religions. Thus, I recall earlier what Judge David J. Barron stated: this Maine law was created “for the purpose of providing a substitute for the public educational instruction that is not otherwise offered.” As such, with this law’s purpose in mind, I believe that the State is able to still prohibit aids going towards religious private schools; however, the State should also prohibit aids towards any private schools. This way, the State is truly ensuring the mission of the law, providing a suitable substitute for public education, without showing any discrimination towards religious organizations. I think this distinction is an important one, in that the State will not be violating the Establishment Clause, but also will not be calling into question any unfair treatment of religious private schools (say, over secular private schools). 

               Overall, I believe the State has the right to prohibit students qualifying for the tuition program to use the tuition to attend a religious private school. However, I add that the State should amend the law to only allow tuition going towards public schools, not private schools (religious or secular).