Supreme Court Poised To Deliver Victory for School Choice in Religious Vouchers Case

Biden administration fails to get case tossed on technicality

The Supreme Court looked likely on Wednesday to strike down a Maine 
law that excludes religious schools from a voucher program, 
strengthening parental rights to use taxpayer dollars at faith-based 
schools.

The Biden administration is trying to get the case tossed on a 
technicality to protect its teachers’ union allies. A majority of 
the Court was unpersuaded by the attempt during oral arguments 
Wednesday and viewed Maine’s law as biased against religion.

"[One] neighbor says, ‘We’re going to send our children to secular 
private school.’ They get the benefit. The next-door neighbor says, 
‘Well we want to send our children to a religious private school.’ 
They don’t get the benefit. That's just discrimination on the basis 
of religion right there at the neighborhood level," Justice Brett 
Kavanaugh said.

Progressives are facing multiple prospective defeats on priority 
issues at the Court this term. The justices have signaled that they 
could overturn Roe v. Wade and expand the right to carry concealed 
firearms by June of next year. Despite the rightward trend, interest 
in court packing seems to be dissipating among establishment 
Democrats after President Joe Biden’s judicial reform commission 
refused to endorse court expansion or term limits in its final 
report.

School choice advocates are backing the attack on Maine’s law amid 
mounting frustration with public schools. Long-term suspension of 
in-person instruction and curricula changes on sensitive subjects 
like race and sex are fueling a nationwide spike in homeschooling 
and private school enrollment. The nation’s largest teachers’ unions 
filed amicus briefs supporting Maine’s law, and they’ve been 
outspoken in opposing vouchers on the grounds that they siphon 
taxpayer dollars out of public schools and dilute labor power.

Maine offers tuition assistance to families in the sparsely 
populated northern and western regions of the state, where some 
school districts cannot maintain a public high school. Affected 
students can pick a different public school, or enroll in a private 
school on the state’s dime. Under Maine law, eligible private 
schools must be non-sectarian and cannot evangelize their students 
in a particular faith.

The two plaintiff families in Wednesday’s case want to use state 
money to send their children to religious schools, Temple Academy in 
Waterville and Bangor Christian School. The Court said in 2017 and 
again in 2020 that faith-based institutions can’t be disqualified 
from government programs available to everyone just because of their 
religious affiliation. Maine tried to distinguish its program from 
those cases Wednesday by saying its law aims to prevent taxpayer 
financing of formal religious instruction.

That distinction didn’t get much traction with the justices. What 
matters, several justices said, is that the states can’t disfavor 
faith-based groups once it makes a public benefit available to all-
comers.

"Our case law suggests that discriminating against all religions … 
is discriminatory just as it is discriminatory to, say, exclude the 
Catholic and the Jewish and include the Protestant," Kavanaugh said.

Several justices were bothered that Maine allows a few nominally 
religious private schools to participate in the voucher program. 
Despite their religious affiliation, those schools are eligible for 
vouchers as long as they don’t evangelize or lead their student 
bodies in regular liturgy. Chief Justice John Roberts said different 
religions place different priorities on evangelizing and communal 
worship, so Maine’s policy penalizes a particular set of religious 
practices.

"We have said that that is the most basic violation of the First 
Amendment religion clauses," Roberts told Maine deputy attorney 
general Christopher Taub.

The Biden administration and the Court’s liberal justices looked for 
ways to toss the case or limit its reach.

Justice Department lawyer Malcolm Stewart noted that Temple Academy 
and Bangor Christian have not indicated that they will participate 
in Maine’s tuition assistance program. He said the schools 
themselves wouldn’t have a basis for suing unless they affirmatively 
declared they will take state money. It would be strange, he said, 
to let parents bring a suit when the schools are undecided. He 
pushed the Court to dismiss the case on that basis, but a majority 
of the Court did not appear persuaded.

Justice Elena Kagan seemed to say the Court could limit its decision 
to the unique facts of Wednesday’s case. Public education is 
available almost everywhere in the country, Kagan said. The only 
reason Maine crafted this program is to accommodate "a very small 
number of students living in isolated areas," she said.

A decision focused on the facts on the ground in Maine would limit 
its precedential value for future voucher cases, a hollow school 
choice victory the Court’s liberals might be willing to live with.

A decision in Wednesday’s case, No. 20-1088 Carson v. Makin, is 
expected by summer 2022.


https://freebeacon.com/courts/supreme-court-poised-to-deliver-
victory-for-school-choice-in-religious-vouchers-case/