October 2021 Church & State Magazine | Featured

Public education in Maine, a largely rural state whose largest city, Portland, has a pop­u­lation of just over 68,000, runs a little differently than in other parts of the country.

More than half of the public school districts in Maine don’t operate their own high schools. Instead, students are given tax money to attend private schools in Maine, in other states or at public districts that have high schools. In the case of private schools, there’s a catch: The schools must not use the funds for religious education.

But with the U.S. Supreme Court growing increasingly receptive to the idea of taxpayer funding of religious education, a group of parents decided the time was right to try to force the state to fund the religious education they desire for their children. The result is a new legal controversy that has landed on the high court’s docket, one that could result in even more taxpayer money flowing into the coffers of private religious schools.

The case, Carson v. Makin, is sponsored by the Institute for Justice, a libertarian organization that has long sought to erode public education and other government-provided services.

The new legal tussle comes during a time when the Supreme Court has been redefining “religious freedom” in troubling ways and seems to be inching toward the idea that in some situations, the government may be required to subsidize religious institutions.

The Supreme Court upheld private school vouchers in 2002’s Zelman v. Simmons-Harris case, embracing voucher advocates’ argument that vouchers were just one form of “choice” offered to parents – even though under most voucher plans, the lion’s share of the money ends up in religious schools.

Since then, the court’s conservative majority has approved other forms of government aid to religious schools. In 2017, the high court ruled in Trinity Lutheran Church of Colum­bia v. Comer that a Missouri church’s preschool could not be excluded from a tax-funded playground-improvement program.

Three years later, the conservative majority struck again. In Espinoza v. Montana Department of Revenue, the court ruled that although no state is required to establish a private school voucher plan, if it has such a system, it must allow religious schools to take part.

The questions at issue in Carson are related to these earlier rulings, but there are important distinctions. Officially, Maine doesn’t have a voucher plan. While the program that provides aid for students in rural areas was put in place long ago, it’s not part of a larger voucher plan that covers the entire state; students in Maine’s cities where public high schools exist don’t qualify.

The case also raises questions of what qualifies as religious instruction, and whether states can be forced to subsidize such instruction. The 1st U.S. Circuit Court of Appeals rejected the parents’ argument that they must be allowed to send their children to religious schools at taxpayer expense in part because the curriculum at the Christian schools in question is saturated with religion. Thus, the appeals court held, extending state aid to these institutions would subsidize religious instruction and proselytism.

Rejecting the parents’ argument, the appeals court ruled 3-0 in the fall of 2020 that schools whose educational program is religious have no right to shoehorn their way into the program.

“Sectarian schools are denied funds not because of who they are but because of what they would do with the money – use it to further the religious purposes of inculcation and proselytization,” observed Judge David Barron.

Barron added, “[N]othing … suggests that the government penalizes a fundamental right simply because it declines to subsidize it.”

The Institute for Justice is arguing that Maine’s failure to extend tax aid to schools that provide religious education and discriminate in admissions and hiring violates parents’ rights to exercise their religion freely. In many ways, it’s a remarkable argument: The parents are essentially asserting that without taxpayer support, they can’t fully practice their faith.

There was a time when such a stance would have been laughed out of the Supreme Court. Now, it’s dangerously close to becoming law.

Americans United, which filed two briefs in the Carson case in the lower courts, will weigh in again at the Supreme Court.

“One of America’s most basic principles is that we can all freely choose our religion, or no religion at all,” Rachel Laser, president and CEO of Americans United, said in a press release the day the high court announced it would hear the Carson case.

“The separation of church and state is what protects this freedom for all of us,” Laser added. “One of the core reasons our country’s founders insisted on church-state separation was to ensure taxpayers are not forced to pay for the private religious education of others. The Supreme Court chipped away at this protection last year when it required states to include religious schools in private school voucher programs. If this court is to maintain any semblance of adhering to the Constitution and the intent of its framers, it should not cross this final line of requiring taxpayers to pay for religious instruction.”

The parents who brought the case want to be reimbursed for sending their children to Bangor Christian Schools in Bangor (Maine’s third largest city) and Temple Academy in Waterville. Both schools are fundamentalist Chistian institutions that seek to instill a “biblical worldview” in students. Neither school will hire members of the LGBTQ community as staff members or admit them as students. Neither one offers education for students with special needs.

Temple Academy, which is run by a fundamentalist church, makes its perspective clear in its student handbook.

“In order to maintain the Evangelical philosophy of our school, at least one parent/guardian should be born-again and in regular attendance at a Bible-believing church as we are committed to working with Christian families,” it states. “No student will be enrolled whose parents do not understand and support our Christian philosophy, goals, and standards and/or are unwilling to have their children trained in accordance with these ideals. Parents should understand that we seek to lead every student to a personal, saving knowledge of Christ. Students from homes with serious differences with the school’s biblical basis and/or its doctrines will not be accepted at Temple Academy.”

The school, which requires a course in the Bible (and mandates that all students own a King James Version), maintains a strict dress code to promote “modesty” and even bans certain genres of reading material from its grounds. The handbook states. “No unapproved magazines or books are to be brought to school. This means anything relating to vampires or ware-wolves [sic] or ‘dark’ related materials etc. ... The rule of thumb is this: Could Jesus read this book with you?” Students are also forbidden to possess on campus “any form of secular rock or heavy metal music or paraphernalia.”

Bangor Christian Schools, which calls itself a ministry of Crosspoint Church, takes a similar approach. The school’s website states, “Our vision is for students to grow in their faith, have a positive impact in their world for Christ and actively serve in their churches and communities. We want them to experience God’s love in a personal way so that they are truly prepared for life.”

The school holds weekly chapel services and Bible studies, and each day begins with student-led prayer. On its website, the school describes its “Philosophy of Education” in conservative evangelical terms: “We believe that God is the creator of all things and His Word is the final authority in all matters. We believe that His desire is for all people to know Him and the world He created. Following God’s mandate for education in Psalm 78:5,6 and Deuteronomy 6:5-9, we assist families in educating their children with a Biblical worldview. Every facet of our program focuses on understanding God, His creation, and His purpose for humanity, leading students to accept their responsibility to each. … Bangor Christian Schools prepares students to be responsible citizens who fulfill their God-given potential.”

Many residents of Maine would undoubtedly rather not subsidize a private school with such a clearly religious educational program. Unfortunately, if the Supreme Court rules the wrong way in the Carson case, they’ll no longer have the choice.