WASHINGTON – The Supreme Court appeared ready Wednesday to rule that religious schools can't be excluded from a Maine program that offers tuition aid for private education, a decision that could ease religious organizations' access to taxpayer money.
After nearly two hours of arguments, the court's six conservative justices seemed largely unpersuaded by Maine's position that the state is willing to pay for the rough equivalent of a public education, but not religious inculcation.
The court's three liberal justices signaled they were more aligned with the state's arguments.
The case is the latest test of religious freedoms for a Supreme Court that has favored faith-based discrimination claims, including in other state programs that had sought to keep public money from religious organizations.
Justice Brett Kavanaugh used an example of neighbors, one choosing a secular private school and the other opting for a religious school for their children. The first family gets the state aid, but not the second.
“That's just discrimination on the basis of religion right there at the neighborhood level,” Kavanaugh said.
But Justice Elena Kagan said Maine had seemed to design its program to avoid raising “questions of religious favoritism, religious division and so forth.”
In largely rural Maine, the state allows families who live in towns that don’t have public schools to receive public tuition dollars to send their children to the public or private school of their choosing. The program excludes religious schools.
Students who live in a district with public schools or in a district that contracts with another public system are ineligible for the tuition program.
Parents challenging the program argue that the exclusion of religious schools violates their religious rights under the Constitution. Teacher unions and school boards say states can impose limits on public money for private education without running afoul of religious freedoms.
Most of the justices attended religious schools, and several send or have sent their children to them. No one spoke of those experiences in court Wednesday.
To qualify for the Maine program, schools don’t even have to be in the state, or the United States for that matter, said Michael Bindas, a lawyer with the libertarian public interest law firm Institute for Justice who argued on behalf of the parents.
But Christopher Taub, Maine's chief deputy attorney general, told the justices that the critical issue is not the location of the school, but whether it is “inculcating people in a particular religion.”
Taub drew the ire of Justice Samuel Alito, who noted that parents could send their children to elite private schools and have the state pick up part of the tab.
“That's the rough equivalent of a public education?” Alito asked derisively.
Kagan said the court has allowed states to make different decisions at or near the intersection of church and state.
“And what we have often talked about in our First Amendment religion cases is this idea of play in the joints, that not everybody has to follow the same model and that there is some amount of funding which is neither prohibited by the First Amendment nor commanded by the First Amendment," she said.
In the Maine case, parents sued in federal court to be able to use state aid to send their children to Christian schools in Bangor and Waterville. The schools in question, Bangor Christian School and Temple Academy, are uncertain whether they would accept public funds, according to court filings.
The Bangor school said it would not hire teachers or admit students who are transgender. Both schools said they do not hire gay or lesbian teachers, according to court records.
Last year, the high court ruled 5-4 that states must give religious schools the same access to public funding that other private schools receive, preserving a Montana scholarship program that had largely benefited students at religious institutions.
In that case, the court said states don't have to allow public money to be used in private education. But they can't keep religious schools out of such programs, once created.
But even after that ruling, the 1st U.S. Circuit Court of Appeals upheld the Maine program, holding that the state was not violating anyone’s constitutional rights by refusing to allow taxpayer money to be used for religious instruction. The three-judge panel included retired Justice David Souter, who occasionally hears cases in the appeals court.
Critical race theory made a brief appearance at Wednesday's arguments. After Kagan asked whether a “white supremacist school” would be included in the program and Taub assured her it would not, Alito chimed in.
“Would you say the same thing about a school that teaches critical race theory?” he asked.
Taub replied: “I mean, that one’s closer because, frankly, I don’t -- I don’t really know exactly what it means to teach critical race theory.”
Critical race theory is a way of thinking about America’s history through the lens of racism. The concept has become a rallying cry for Republicans who say the theory is being used to rewrite American history. But there is little evidence that critical race theory is being taught in the nation's K-12 schools.
A decision in Carson v. Makin, 20-1088, is expected by late June.