Carson v. Makin

• Decision Date: 21 June 2022
• Docket Number: 20-1088
• Citation: 142 S.Ct. 1987,213 L.Ed.2d 286
• Parties: David CARSON, AS parent and NEXT FRIEND OF O. C., et al., Petitioners v. A. Pender MAKIN
• Court: U.S. Supreme Court

142 S.Ct. 1987

213 L.Ed.2d 286

David CARSON, AS parent and NEXT FRIEND OF O. C., et al., Petitioners

v.A. Pender MAKIN

No. 20-1088

Supreme Court of the United States.

Argued December 8, 2021

Decided June 21, 2022

Michael Bindas for petitioners.

Christopher C. Taub, Chief Deputy Attorney General, for respondent.

Malcolm L. Stewart, Deputy Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the respondent.

Aaron M. Frey, Attorney General, Sarah A. Forster, Assistant Attorney General, Counsel of Record, Christopher C. Taub, Chief Deputy Attorney General, Office of the Attorney General, Six State House Station, Augusta, ME, for Respondent.

Kelly J. Shackelford, Lea E. Patterson, First Liberty Institute, Piano, TX, Michael K. Whitehead, Jonathan R. Whitehead, Whitehead Law Firm LLC, Lee's Summit, MO, Jeffrey Thomas Edwards, Preti Flaherty Beliveau & Pachios, LLP, Portland, ME, Michael E. Bindas, Counsel of Record, Institute for Justice, Seattle, WA, Arif Panju Institute for Justice, Austin, TX, Kirby Thomas West, Institute for Justice, Arlington, VA, for Petitioners.

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are "nonsectarian." The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment.

I

A

Maine's Constitution provides that the State's legislature shall "require ... the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools." Me. Const., Art. VIII, pt. 1, § 1. In accordance with that command, the legislature has required that every school-age child in Maine "shall be provided an opportunity to receive the benefits of a free public education," Me. Rev. Stat. Ann., Tit. 20–A, § 2(1) (2008), and that the required schools be operated by "the legislative and governing bodies of local school administrative units," § 2(2). But Maine is the most rural State in the Union, and for many school districts the realities of remote geography and low population density make those commands difficult to heed. Indeed, of Maine's 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own. App. 4, 70, 73.

Maine has sought to deal with this problem in part by creating a program of tuition assistance for families that reside in such areas. Under that program, if an SAU neither operates its own public secondary school nor contracts with a particular public or private school for the education of its school-age children, the SAU must "pay the tuition ... at the public school or the approved private school of the parent's choice at which the student is accepted." Me. Rev. Stat. Ann., Tit. 20–A, § 5204(4) (Cum. Supp. 2021). Parents who wish to take advantage of this benefit first select the school they wish their child to attend. Ibid. If they select a private school that has been "approved" by the Maine Department of Education, the parents’ SAU "shall pay the tuition" at the chosen school up to a specified maximum rate. See §§ 2902, 2951, 5204(4).

To be "approved" to receive these payments, a private school must meet certain basic requirements under Maine's compulsory education law. § 2951(1). The school must either be "[c]urrently accredited by a New England association of schools and colleges" or separately "approv[ed] for attendance purposes" by the Department. §§ 2901(2), 2902. Schools seeking approval from the Department must meet specified curricular requirements, such as using English as the language of instruction, offering a course in "Maine history, including the Constitution of Maine ... and Maine's cultural and ethnic heritage," and maintaining a student-teacher ratio of not more than 30 to 1. §§ 2902(2), 2902(3), 4706(2), 2902(6)(C).

The program imposes no geographic limitation: Parents may direct tuition payments to schools inside or outside the State, or even in foreign countries. §§ 2951(3), 5808. In schools that qualify for the program because they are accredited, teachers need not be certified by the State, § 13003(3), and Maine's curricular requirements do not apply, § 2901(2). Single-sex schools are eligible. See Me. Rev. Stat. Ann., Tit. 5, § 4553(2–A) (exempting single-sex private, but not public, schools from Maine's antidiscrimination law).

Prior to 1981, parents could also direct the tuition assistance payments to religious schools. Indeed, in the 1979–1980 school year, over 200 Maine students opted to attend such schools through the tuition assistance program. App. 72. In 1981, however, Maine imposed a new requirement that any school receiving tuition assistance payments must be "a nonsectarian school in accordance with the First Amendment of the United States Constitution." Me. Rev. Stat. Ann., Tit. 20–A, § 2951(2). That provision was enacted in response to an opinion by the Maine attorney general taking the position that public funding of private religious schools violated the Establishment Clause of the First Amendment. We subsequently held, however, 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 offend the Establishment Clause. Zelman v. Simmons-Harris , 536 U.S. 639, 652, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002). Following our decision in Zelman , the Maine Legislature considered a proposed bill to repeal the "nonsectarian" requirement, but rejected it. App. 100, 108.

The "nonsectarian" requirement for participation in Maine's tuition assistance program remains in effect today. The Department has stated that, in administering this requirement, it "considers a sectarian school to be one that is 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." 979 F.3d 21, 38 (CA1 2020). "The Department's focus is on what the school teaches through its curriculum and related activities, and how the material is presented." Ibid. (emphasis deleted). "[A]ffiliation or association with a church or religious institution is one potential indicator of a sectarian school," but "it is not dispositive." Ibid .

B

This case concerns two families that live in SAUs that neither maintain their own secondary schools nor contract with any nearby secondary school. App. 70, 71. Petitioners David and Amy Carson reside in Glenburn, Maine. Id. , at 74. When this litigation commenced, the Carsons’ daughter attended high school at Bangor Christian Schools (BCS), which was founded in 1970 as a ministry of Bangor Baptist Church. Id. , at 74, 80. The Carsons sent their daughter to BCS because of the school's high academic standards and because the school's Christian worldview aligns with their sincerely held religious beliefs. Id. , at 74. Given that BCS is a "sectarian" school that cannot qualify for tuition assistance payments under Maine's program, id. , at 80, the Carsons paid the tuition for their daughter to attend BCS themselves, id. , at 74.

Petitioners Troy and Angela Nelson live in Palermo, Maine. Id. , at 78. When this litigation commenced, the Nelsons’ daughter attended high school at Erskine Academy, a secular private school, and their son attended middle school at Temple Academy, a "sectarian" school affiliated with Centerpoint Community Church. Id. , at 78, 90, 91. The Nelsons sent their son to Temple Academy because they believed it offered him a high-quality education that aligned with their sincerely held religious beliefs. Id. , at 78. While they wished to send their daughter to Temple Academy too, they could not afford to pay the cost of the Academy's tuition for both of their children. Id. , at 79.

BCS and Temple Academy are both accredited by the New England Association of Schools and Colleges (NEASC), and the Department considers each school a "private school approved for attendance purposes" under the State's compulsory attendance requirement. Id. , at 80, 90. Yet because neither school qualifies as "nonsectarian," neither is eligible to receive tuition payments under Maine's tuition assistance program. Id. , at 80, 90. Absent the "nonsectarian" requirement, the Carsons and the Nelsons would have asked their respective SAUs to pay the tuition to send their children to BCS and Temple Academy, respectively. Id. , at 79.

In 2018, petitioners brought suit against the commissioner of the Maine Department of Education. Id. , at 11–12. They alleged that the "nonsectarian" requirement of Maine's tuition assistance program violated the Free Exercise Clause and the Establishment Clause of the First Amendment, id. , at 23–27, as well as the Equal Protection Clause of the Fourteenth Amendment, id. , at 29–30. Their complaint sought declaratory and injunctive relief against enforcement of the requirement. Id. , at 31–32. The parties filed cross-motions for summary judgment on a stipulated record. 401 F.Supp.3d 207, 208 (D.Me. 2019). Applying Circuit precedent that had previously upheld the "nonsectarian" requirement against challenge, see Eulitt v. Maine Dept. of Ed. , 386 F.3d 344 (CA1 2004), the District Court rejected petitioners’ constitutional claims and granted judgment to the commissioner. 401 F.Supp.3d at 209–212.

While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza v. Montana Department of Revenue , 591 U. S. ––––, 140 S.Ct. 2246, 207 L.Ed.2d 679 (2020). Espinoza held that a...