Supreme Court signals further erosion of separation of church and state in schools

The U.S. Supreme Court's conservative supermajority seemed poised Wednesday to hand school-choice advocates a major victory, and potentially a large expansion of state programs required to fund religious education.

The handwriting on the wall came during a nearly two-hour argument involving a challenge brought by two Maine families to the state's unusual way of providing public education.

Maine is a state so rural that a majority of its school districts do not have a high school. The way the state has dealt with that problem is to contract with existing high schools to accept students from districts with no high school and, in addition, to pay the same amount to nonsectarian private schools to pick up the slack. What the state will not do is pay the same tuition for students attending religious schools.

School-choice advocates have long sought ways to promote equal treatment for religious schools with taxpayer funds, and they had a willing audience in the court's six conservatives, five of whom attended religious schools. All signaled that they too view Maine's refusal to fund religious schools as unconstitutional.

The court's liberals noted that in the past, the court has held that states may, if they wish, have voucher programs that allow parents to send their kids to religious schools, but that in this case, school-choice advocates are asking the court to contend that the state must treat religious schools the same way it treats nonsectarian private schools.

Justice Stephen Breyer suggested that the beliefs taught in a religious school seem to conflict with the state's human rights law: "No gay students, no gay teachers, the man is superior to the woman, and a few other things like that."

Justice Sonia Sotomayor said that the existing Maine program treats everyone equally. The state provides a free public secular education for everyone, and if a family wants something different, namely a religious education, the family — not the taxpayers — has to pay for it.

But that's definitely not the way the court's conservatives saw things.

Justice Clarence Thomas asked Maine Deputy Attorney General Christopher Taub for his definition of a public education. His answer: an education that doesn't prefer one religion over another and doesn't teach "through the lens of religion."

Chief Justice John Roberts also weighed in: "Let's suppose you have two schools. School A is run by a religion ... and that religion has a doctrine that they should provide 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 would the second? "No."

So, shot back Roberts, "You're discriminating against religions based on their belief."

Justice Neil Gorsuch pursued the point, asking, "How does that not discriminate against minority religious viewpoints ... and favor religions that are more watered down?"

Taub replied that under Maine's program, no school that instills religious beliefs is eligible for tuition payments from the state.

The hypotheticals continued. Would the state pay tuition for a school that taught white supremacy? No, said Taub, the school has to provide an education roughly equal to that in public schools.

What about a school that teaches "critical race theory?" asked Justice Samuel Alito. Taub replied that he wouldn't know how to define that. But he failed to note that starting in 2022, the state will require all private schools that get tuition payments from the state to use the same curriculum as the state.

Justice Elena Kagan, coming to the rescue, asked what has been the hardest case the state has "actually had."

Taub replied that there had not been any, because the religious schools that had asked about eligibility had all identified themselves as religious and as teaching through the lens of religion.

Justice Brett Kavanaugh repeatedly suggested that both religious and non-religious schools should be treated the same way. "Discriminating against all religions versus secular is itself a kind of discrimination that the court has said is odious to the Constitution," he observed.

What about a school that is anti-religion, he asked. Would that school be eligible for state tuition payments? Taub replied that he'd never heard of such a school in Maine, but that it would not be eligible because Maine's goal is to advance religious neutrality, rather than be pro-religion or anti-religion.

Justice Amy Coney Barrett followed up, asking how the government would even find out whether a school was teaching that all religions are "bigoted and biased."

Taub replied that over 99.8% of children in Maine go to either a public school or one of the so-called "big 11" nonsectarian private schools. The state's Department of Education is "very familiar with the curriculum" at those nonsectarian schools, he said, because they are 95% publicly funded through the tuition program.

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