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The United States Supreme Court on Tuesday handed school choice advocates a major victory.
By a 6-3 vote along ideological lines, the court opened the door further to those seeking taxpayer funding for religious schools.
In its clearest statement yet, the court said that if a state uses taxpayer money to pay for students attending non-religious private schools, it must also use taxpayer money to pay for school attendance. nuns. For all intents and purposes, the decision thus invalidates provisions in the constitutions of 37 states that prohibit the direct or indirect use of taxpayers’ money in religious schools.
The Maine School System
The court’s decision came in a case from Maine, a state so rural that more than half of its school districts have no public high school. The state is dealing with this problem by contracting with neighboring high schools in other districts and non-sectarian private schools to take over. The payment matches the average cost of public school tuition, just over $11,000.
Two families have challenged the funding system, saying the state should also pay for their children’s tuition at private religious schools where the curriculum is “Bible-based” with religion “integrated into all content areas “.
On Tuesday, the Supreme Court gave its approval. Writing for the majority of the court, Chief Justice John Roberts said when the state pays tuition for students in non-sectarian private schools, but not religious schools, ‘that’s discrimination against religion’ .
The chief justice made some suggestions on how to comply with the court’s decision, including creating a public boarding school for children who live far from public high schools or offering distance learning instead, or building more public high schools.
Consequences of notice
In an interview with NPR, Maine Attorney General Aaron Frey whitewashed those suggestions on Tuesday. “I don’t know how reasonable those suggestions were,” he said, noting that opening a boarding school “may frankly not be consistent with what’s actually achievable for your average working-class state. “.
The court’s three dissenters cited these issues as the very reason the Supreme Court has so far allowed what it called “a play in the joints” between the Constitution’s ban on the establishment of a religion by the State and its guarantee of the free exercise of religion.
Writing for dissenters, Justice Stephen Breyer noted that in previous rulings the court has said that states may set up state-paid tuition voucher programs that allowed parents to send their children to parochial schools. “The key word is may“, he said. “We have never before argued what the court is ruling today, which is that a state must use public funds” to do this.
Judge Sonia Sotomayor added, “Today the court takes us to a place where the separation of church and state becomes a constitutional violation.”
Only one other state, Vermont, has a program like Maine’s. But the court’s decision could open up more benefits to religious schools in many other states, including states whose constitutions prohibit state assistance to religious schools.
More importantly, the decision could prompt some private religious schools to seek public funding as charter schools. Until now, charter schools were considered public schools and religious schools were not eligible for charter status, according to Frank Ravitch, professor of law and religion at the University of Michigan. But now some members of the school choice movement are seeking to change that, going to court to challenge the exclusion of religious schools from charter status.
Notre Dame law professor Richard Garnett says charter schools “are a gray area…I’m really curious to see how charter school law develops and if we get to a point where a charter school is permitted to be as … religiously steeped as a parochial school is.”
What Maine Can Do
As for Maine, it faces a dilemma. The state legislature won’t be back to work until September, too late to adopt an alternative system to educate its students from more rural areas. The 4,800 students whose tuition is paid by the state in non-religious independent academies could be reassigned elsewhere in public schools. But that would leave the academies, many of which have a long history in their districts, without students. Some 80 to 95 percent of students at these academies are paid by the state, according to Maine officials. It is therefore possible that the academies will become charter schools, and therefore part of the public school system.
Alternatively, the state legislature could decide to pay tuition for students attending religious schools. But that would probably cause other legal problems. The religious schools at the center of Tuesday’s case pride themselves on imbuing students with religious views; they do not accept, for example, children of other religions, homosexual students, homosexual teachers or children of homosexual parents. It is not certain that their program conforms to the state program. All of this would put these schools at odds with state laws. And it’s not even clear if any of the schools really want to be included in the state tuition program, especially if, as is almost certain, entering into a contract with the state means that conditions are attached. The case before the Supreme Court was not brought by the schools, but by two groups of parents.
Still, Marci Hamilton, a law professor at the University of Pennsylvania, says she doesn’t see the Supreme Court stopping here because it has “a more theocratic view than a secular one.”
“I think the Supreme Court is definitely on a trajectory,” and “the inevitable conclusion is that what they’re saying is that it’s unconstitutional to deny religious schools the same funding as public schools.”