Bindas & James: School choice ruling pushes states to end discrimination

States take care to keep public schools non-sectarian. The First Amendment requires as much. But farmers Troy and Angela Nelson did not want to change the public school system when they filed a constitutional lawsuit in Maine.

They simply wanted the right to direct the tuition dollars the state gives them to the school they thought would be best for their two children. As part of that choice, they wanted government neutrality on religion.

What they got instead was state-directed discrimination against their family. Due to the Nelsons’ preference for a school the state labeled “sectarian,” Maine excluded them from a public benefit that otherwise would have been available to them.

Put simply, Maine took sides on religion. In its zeal to keep church and state separate, it violated the First Amendment in the opposite way — not by promoting religious exercise, but by punishing it. The Nelsons and another family fought back with representation from our public interest law firm, the Institute for Justice, and on Tuesday they scored a victory in the U.S. Supreme Court.

The 6-3 ruling highlights a growing risk for churchgoers as they become the minority for the first time in U.S. history. As religion falls into disfavor, lawmakers — under the guise of maintaining a strict separation of church and state — may enact laws that instead punish the free exercise of religion.

That’s what happened in Maine. The Nelsons live in a rural part of the state with no public high school. Maine provides tuition assistance for families in this situation, allowing them to shop around for public or private alternatives.

Families can make selections based on academic rigor, extracurricular programs, location, cost, culture or a range of other factors.

For more than a century, Maine allowed parents to choose religious schools. But in 1981 the state limited tuition assistance to use at nonsectarian schools only.

The goal was to prevent public sponsorship of religious instruction, but Maine has a built-in safeguard that stops the government from picking winners and losers in the realm of religion. Parents, not the state, make final determinations about where they want to send their children. So the choice is private, not public.

Maine understands the distinction. The Supreme Court spelled it out in a previous case in 2002, holding that a benefit program under which private citizens “direct government aid to religious schools wholly as a result of their own genuine and independent private choice” does not violate the Constitution. Unfortunately, Maine kept its nonsectarian rule in place anyway.

The state refused to back down again in 2020, when the Institute for Justice scored a Supreme Court victory for school choice in Montana. “A State need not subsidize private education,” the majority held. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The ruling should have vindicated the Nelsons, but Maine argued that being religious and acting religious are somehow different. The Supreme Court responded in language that cannot be misunderstood: “Regardless of how the … restriction (is) described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” And that, the Court added, “is discrimination against religion.”

Other states need to hear the same message. Public school teachers unions and other educational choice opponents often succeed in persuading lawmakers not to adopt school choice programs by calling their constitutionality into question and insisting that religious options are impermissible. But the recent cases in Maine and Montana should end any confusion. Tax credit and tuition assistance programs are perfectly permissible, and religious options cannot be excluded from them.

Ultimately, the underlying issue is not public versus private or secular versus sectarian. It is about giving children access to the widest possible array of educational options, regardless of where those options are found.

Michael Bindas is a senior attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.

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