A case for school choice

RICHARD A. SOKERKA

An interesting case involving both religious freedom and school choice is now before the Supreme Court. It asks whether the state of Maine breaches the free exercise clause or equal protection clause of the First Amendment by barring students in a student-aid program from using their aid to attend schools offering a “sectarian” education.

The Carson family, parents Amy and David and their daughter Olivia, reside in Glenburn, Maine. Because Glenburn has no public school system, families with school-age children are eligible for a school-choice program that pays tuition at either public or non-sectarian schools.

Currently, about 5,000 Maine students are eligible for this program, which specifically excludes private schools that are “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith,” which Maine considers “sectarian.”

The parents are alumni of Bangor Christian Schools, a k–12 school. However, since Bangor Christian Schools mandates Bible class, it is ineligible for the town tuition program, meaning the parents have to pay for their daughter’s tuition.

The Carsons filed suit in 2018 and the Supreme Court agreed to hear the case this past July 2.

Attorneys representing the family at the Supreme Court were feeling confident following oral arguments Dec. 8 in the case.

Michael Bindas, senior attorney at the Institute for Justice, told the court, “Maine’s sectarian exclusion discriminates based on religion. Like all discrimination based on religion, it should be subjected to strict scrutiny and held unconstitutional unless Maine can show that it is necessary to achieve a compelling government interest,” he said.

Bindas noted that the religious schools “satisfy every secular requirement to participate in the tuition assistance program” and are excluded from the program due to religious affiliation and religious classes.

A majority of Supreme Court justices signaled that they agreed with Bindas’ interpretation of the law.

In a post-arguments Zoom call, Bindas reiterated, “Parents know best what’s going to work for their child’s education,” and restated his belief that Maine’s exclusion of religious schools from tuition assistance is discriminatory.

Previously, in its 2020 decision, Espinoza v. Montana Department of Revenue, the Supreme Court struck down as a violation of the free exercise clause a state scholarship program that excluded religious schools.

In the Second Vatican Council’s 1965 declaration on Christian education, Gravis­simum educationis, it states that parents “must enjoy true liberty in their choice of schools. Consequently, the public power, which has the obligation to protect and defend the rights of citizens, must see to it, in its concern for distributive justice, that public subsidies are paid out in such a way that parents are truly free to choose according to their conscience the schools they want for their children.”

It is our hope that the Supreme Court rules in favor on the important religious freedom and school choice issues this case presents.

If it does, it may well be the tipping point that will allow school choice to move forward in many states in our nation, ending an archaic injustice that has for far too long prevented parents from choosing the school for their children that they feel gives them the best opportunity for a quality education.