What to Know About the Next Big Supreme Court School Choice Case

December 13, 2021

Libby Sobic and Anthony LoCoco

The U.S. Supreme Court recently held oral arguments in Carson v. Makin, a case that challenges Maine’s decision to prevent certain private religious schools from participating in its tuition benefit program for families without access to a local public high school. This case will likely provide guidance as to whether states can continue to ban religious schools from participating in publicly-funded programs on the basis of religious use of funding.

While we wait for the U.S. Supreme Court to make its determination, which could be awhile, here are three aspects of the case that Wisconsinites should know:

 

Wisconsin’s school choice programs are different than Maine’s tuition benefit program.

The Wisconsin Supreme Court held that the parent’s choice for the voucher, even if it is a religious private school, does not violate the Establishment Clause of the Wisconsin Constitution because the parent (not the government) is directing the dollars.

Maine’s program, on the other hand, allows parents to direct the funding to some private religious schools but chooses which schools can participate based on the use of religious curriculum. Therefore, Maine’s program is different than Wisconsin’s voucher programs because the state takes an additional step to try to determine whether state funding will be used to promote religious curriculum.

 

The U.S. Supreme Court’s holding could impact how both states and the federal government allocate funding to non-public schools.

If the Court determines that the state cannot limit how public funds are used, even if the funding is directed towards a religious entity for a potentially religious use, it would have a major impact on how state and federal funds are allocated.

Under federal law, federal dollars cannot be received directly by the religious school and the funds are limited in use out of abundance of caution to prevent any commingling of government funds with a religious entity. If that would change, private schools would be able to access federal funds more efficiently and ensure those funds are benefiting their students and staff to the maximum extent.

 

The Court could issue a narrow ruling that limits Maine’s ability to pick and choose what private schools can participate in its program, but not allow it to expand beyond that.

If the Court provides a narrower ruling, it would not negatively impact the Wisconsin choice programs.

Whatever the Court decides to rule, this decision will have an impact on many families in Maine and potentially, impact the 37 Blaine Amendments in state constitutions around the country.

These cases represent an important shift in the conversations around school choice and educational freedom. Many families choose to send their children to non-public schools, many of which are religious. Whether states can prevent certain religious schools from participating in school choice programs is an important question for the future of school choice. Our friends at the Institute for Justice have led this important conversation at the highest court through both Espinoza and Carson cases.

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