Supreme Court signals further erosion of separation of church and state in schools
The conservative super-majority of the U.S. Supreme Court appeared poised on Wednesday to offer choice-of-school supporters a major victory and potentially a large expansion of the public programs required to fund religious education.
The writing on the wall came during an almost two-hour argument involving a challenge by two Maine families to the state’s unusual way of providing public education.
Maine is such a rural state that the majority of its school districts do not have a high school. The way the state has dealt with this problem is to contract with existing high schools to accept students from districts without high school and, in addition, to pay the same amount to private non-sectarian schools to take over. What the state will not do is pay the same tuition fees for students who attend religious schools.
School choice advocates have long sought ways to promote equal treatment for religious schools with taxpayer dollars, and they had a consenting audience among six court conservatives, five of whom attended religious schools. All reported that they too viewed Maine’s refusal to fund religious schools unconstitutional.
Court liberals noted that in the past the court has ruled that states can, if they wish, have voucher programs that allow parents to send their children to religious schools, but in this case , school choice advocates are asking the court to argue that the state should treat religious schools the same way it treats non-denominational private schools.
Judge Stephen Breyer suggested that beliefs taught in a religious school appeared to conflict with the state’s human rights law: “No gay students, no gay teachers, man is superior to woman, and a few other things like that. “
Judge Sonia Sotomayor said Maine’s current program treats everyone equally. The state provides free secular public education for everyone, and if a family wants anything different, namely religious education, the family – not the taxpayer – must pay for it.
But that is certainly not how the Court Conservatives saw it.
Justice Clarence Thomas asked Maine Deputy Attorney General Christopher Taub about his definition of public education. His answer: an education that does not prefer one religion to another and does not teach “through the prism of religion”.
Chief Justice John Roberts also weighed in: “Suppose you have two schools. School A is run by a religion … and that religion has a doctrine that they are to be of service to their neighbors. … Religion B has a school, but its doctrine requires adherents to educate children in the faith. … Would the first school get the funds? “
Taub said, “Yes. And the second? “No.”
So, Roberts retorted, “You are discriminating against religions on the basis of their belief. “
Judge Neil Gorsuch went on to ask, “How does this not discriminate against religious views of minorities … and favor more diluted religions?” “
Taub responded that under the Maine program, no school that instills religious beliefs is eligible for state tuition payments.
The hypotheses continued. Would the state pay the tuition for a school that taught white supremacy? No, Taub said, the school should provide an education roughly equal to that of public schools.
What about a school that teaches “critical race theory?” Asked Judge Samuel Alito. Taub replied that he wouldn’t know how to define that. But he didn’t note that from 2022, the state will require all private schools that receive state tuition fees to use the same curriculum as the state.
Judge Elena Kagan, coming to the rescue, asked what has been the most difficult case the state has “really had”.
Taub replied that there had not been, as the religious schools that had asked about eligibility had all identified as religious and as a teacher through the lens of religion.
Judge Brett Kavanaugh has repeatedly suggested that religious and non-religious schools should be treated alike. “Discrimination against all religions in relation to secularism is in itself a kind of discrimination that the court described as odious to the Constitution,” he observed.
What about an anti-religious school, he asked. Would this school be eligible for state tuition fees? Taub replied that he had never heard of such a school in Maine, but that it would not be eligible because Maine’s goal is to promote religious neutrality, rather than being pro-religion. or anti-religion.
Judge Amy Coney Barrett went on to ask how the government would find out even if one school taught that all religions are “fanatic and one-sided.”
Taub responded that over 99.8% of children in Maine attend either a public school or one of the so-called “big 11” private non-denominational schools. The state education ministry is “very familiar with the curriculum” of these non-denominational schools, he said, as they are 95 percent state funded through the tuition program.