Carson as next friend of O.C. v. Makin (2022)

142 S.Ct. 1987

Supreme Court of the United States.

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

v.

1. Pender MAKIN

No. 20-1088

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Argued December 8, 2021

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Decided June 21, 2022

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

*1993 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,” [citation omitted] and that the required schools be operated by “the legislative and governing bodies of local school administrative units,” [citation omitted]. 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.” [citation omitted] Parents who wish to take advantage of this benefit first select the school they wish their child to attend….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. [citation omitted]

To be “approved” to receive these payments, a private school must meet certain basic requirements under Maine’s compulsory education law…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…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. [citation omitted]

*1994 The program imposes no geographic limitation: Parents may direct tuition payments to schools inside or outside the State, or even in foreign countries. [citation omitted] In schools that qualify for the program because they are accredited, teachers need not be certified by the State,…and Maine’s curricular requirements do not apply…Single-sex schools are eligible. [citation omitted]

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.” [citation omitted] 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. [citation omitted] 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.” [citation omitted] “The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.” …“[A]ffiliation or association with a church or religious institution is one potential indicator of a sectarian school,” but “it is not dispositive.”

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 *1995 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 [inter alia] the Free Exercise Clause and the Establishment Clause of the First Amendmen…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 provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination,” Art. X, § 6(1), violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing. The First Circuit recognized that, in light of Espinoza, its prior precedent upholding Maine’s “nonsectarian” requirement was no longer controlling. 979 F.3d at 32–36. But it nevertheless affirmed the District Court’s grant of judgment to the commissioner. Id., at 49.

***

II

A

The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” [citations omitted] In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. [citations omitted] A State may not withhold unemployment benefits, for instance, on the ground that an individual lost his job for refusing to abandon the dictates of his faith. [citations omitted]

We have recently applied these principles in the context of two state efforts to withhold otherwise available public benefits from religious organizations. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ––––, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017), we considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity. The Trinity Lutheran Church Child Learning Center applied for a grant to resurface its gravel playground, but the Department denied funding on the ground that the Center was operated by the Church.

We deemed it “unremarkable in light of our prior decisions” to conclude that the Free Exercise Clause did not permit Missouri to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” Id., at –––– – ––––, 137 S.Ct., at 2021. While it was true that Trinity Lutheran remained “free to continue operating as a church,” it could enjoy that freedom only “at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center [was] otherwise fully qualified.” Id., at ––––, 137 S.Ct., at 2022...Such discrimination, we said, was “odious to our Constitution” and could not stand. 582 U. S., at ––––, 137 S.Ct., at 2025.

Two Terms ago, in Espinoza, we reached the same conclusion as to a Montana program that provided tax credits to donors who sponsored scholarships for private school tuition. The Montana Supreme *1997 Court held that the program, to the extent it included religious schools, violated a provision of the Montana Constitution that barred government aid to any school controlled in whole or in part by a church, sect, or denomination. As a result of that holding, the State terminated the scholarship program, preventing the petitioners from accessing scholarship funds they otherwise would have used to fund their children’s educations at religious schools.

We again held that the Free Exercise Clause forbade the State’s action. The application of the Montana Constitution’s no-aid provision, we explained, required strict scrutiny because it “bar[red] religious schools from public benefits solely because of the religious character of the schools.” Espinoza, 591 U. S., at ––––, 140 S.Ct., at 2255. “A State need not subsidize private education,” we concluded, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Id., at ––––, 140 S.Ct., at 2261.

B

The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” 582 U. S., at ––––, 137 S.Ct., at 2021. By “condition[ing] the availability of benefits” in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran—“effectively penalizes the free exercise” of religion. Ibid. (quoting McDaniel, 435 U.S. at 626, 98 S.Ct. 1322 (plurality opinion)).

Our recent decision in Espinoza applied these basic principles in the context of religious education that we consider today. There, as here, we considered a state benefit program under which public funds flowed to support tuition payments at private schools. And there, as here, that program specifically carved out private religious schools from those eligible to receive such funds. While the wording of the Montana and Maine provisions is different, their effect is the same: to “disqualify some private schools” from funding “solely because they are religious.” 591 U. S., at ––––, 140 S.Ct., at 2261. A law that operates in that manner, we held in Espinoza, must be subjected to “the strictest scrutiny.” Id., at –––– – ––––, 140 S.Ct., at 2257.

To satisfy strict scrutiny, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (quoting McDaniel, 435 U.S. at 628, 98 S.Ct. 1322 (plurality opinion)). “A law that targets religious conduct for distinctive treatment ... will survive strict scrutiny only in rare cases.” 508 U.S. at 546, 113 S.Ct. 2217.

This is not one of them. As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. See Zelman, 536 U.S. at 652–653, 122 S.Ct. 2460. Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires. See also post, at 2004 *1998 (BREYER, J., dissenting) (States may choose “not to fund certain religious activity ... even when the Establishment Clause does not itself prohibit the State from funding that activity”); post, at 2012 (SOTOMAYOR, J., dissenting) (same point).

But as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution ... ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” Espinoza, 591 U. S., at ––––, 140 S.Ct., at 2260 (quoting Trinity Lutheran, 582 U. S., at ––––, 137 S.Ct., at 2024); see also Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (“[T]he state interest ... in achieving greater separation of church and State than is already ensured under the Establishment Clause ... is limited by the Free Exercise Clause.”). Justice BREYER stresses the importance of “government neutrality” when it comes to religious matters, post, at 2009 but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.^*

III

The First Circuit attempted to distinguish our precedent by recharacterizing the nature of Maine’s tuition assistance program in two ways, both of which Maine echoes before this Court. First, the panel defined the benefit at issue as the “rough equivalent of [a Maine] public school education,” an education that cannot include sectarian instruction. 979 F.3d at 44; see also Brief for Respondent 22. Second, the panel defined the nature of the exclusion as one based not on a school’s religious “status,” as in Trinity Lutheran and Espinoza, but on religious “uses” of public funds. 979 F.3d at 38–40; see also Brief for Respondent 35. Neither of these formal distinctions suffices to distinguish this case from Trinity Lutheran or Espinoza, or to affect the application of the free exercise principles outlined above.

A

The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition assistance payments to be used at approved private schools, but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” 979 F.3d at 44. As Maine puts it, “[t]he public benefit Maine is offering is a free public education.” Brief for Respondent 1–2.

To start with, the statute does not say anything like that. It says that an SAU without a secondary school of its own “shall 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). The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the “private *1999 school” must somehow provide a “public” education.

This reading of the statute is confirmed by the program’s operation. The differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important. To start with the most obvious, private schools are different by definition because they do not have to accept all students. Public schools generally do. Second, the free public education that Maine insists it is providing through the tuition assistance program is often not free. That “assistance” is available at private schools that charge several times the maximum benefit that Maine is willing to provide. See Stipulated Record, Exh. 2, in No. 1:18–cv–327 (Me., Mar. 12, 2019), ECF Doc. 24–2, p. 11; Brief for Respondent 32.

Moreover, the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools. For example, Maine public schools must abide by certain “parameters for essential instruction in English language arts; mathematics; science and technology; social studies; career and education development; visual and performing arts; health, physical education and wellness; and world languages.” § 6209. But NEASC-accredited private schools are exempt from these requirements, and instead subject only to general “standards and indicators” governing the implementation of their own chosen curriculum. Brief for Respondent 32; see NEASC, Standards—20/20 Process (rev. Aug. 2021), https://cis.neasc.org/standards2020 (requiring, for instance, that “[c]urriculum planning supports the school’s core beliefs and the needs of the students,” and that the “[w]ritten curriculum aligns horizontally and vertically”).

Private schools approved by the Department (rather than accredited by NEASC) are likewise exempt from many of the State’s curricular requirements, so long as fewer than 60% of their students receive tuition assistance from the State. For instance, such schools need not abide by Maine’s “comprehensive, statewide system of learning results,” including the “parameters for essential instruction” referenced above, and they need not administer the annual state assessments in English language arts, mathematics, and science. [citations omitted]

There are other distinctions, too. Participating schools need not hire state-certified teachers…And the schools can be single-sex. See ECF Doc. 24–2, at 11. In short, it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the Maine public schools.

But the key manner in which the two educational experiences are required to be “equivalent” is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But “the definition of a particular program can always be manipulated to subsume the challenged condition,” and to allow States to “recast a condition on funding” in this manner would be to see “the First Amendment ... reduced to a simple semantic exercise.” [citations omitted]Maine’s formulation does not answer the question in this case; it simply restates it.

Indeed, were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless. By Maine’s logic, Montana could have obtained the same result that we held violated the First Amendment simply by redefining its tax credit for sponsors of generally available scholarships as limited to “tuition payments for the rough equivalent of a Montana public education”—meaning a secular education. But our holding in Espinoza turned on the substance of free exercise protections, not on the presence or absence of magic words. That holding applies fully whether the prohibited discrimination is in an express provision like § 2951(2) or in a party’s reconceptualization of the public benefit.

Maine may provide a strictly secular education in its public schools. But BCS and Temple Academy—like numerous other recipients of Maine tuition assistance payments—are not public schools. In order to provide an education to children who live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.

The dissents are wrong to say that under our decision today Maine “must” fund religious education. Post, at 2006 (BREYER, J., dissenting). Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it. Post, at 2014 (SOTOMAYOR, J., dissenting). The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in Espinoza, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 591 U. S., at ––––, 140 S.Ct., at 2261.

B

The Court of Appeals also attempted to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were “solely status-based religious discrimination,” while the challenged provision here “imposes a use-based restriction.” 979 F.3d at 35, 37–38...

In Trinity Lutheran, the Missouri Constitution banned the use of public funds in aid of “any church, sect or denomination of religion.” [citation omitted]. We noted that the case involved “express discrimination based on religious identity,” which was sufficient unto the day in deciding it, and that our opinion did “not address religious uses of funding.” [citation omitted]

So too in Espinoza, the discrimination at issue was described by the Montana Supreme Court as a prohibition on aiding “schools controlled by churches,” and we *2001 analyzed the issue in terms of “religious status and not religious use.” [citation omitted] Foreshadowing Maine’s argument here, Montana argued that its case was different from Trinity Lutheran’s because it involved not playground resurfacing, but general funds that “could be used for religious ends by some recipients, particularly schools that believe faith should ‘permeate[ ]’ everything they do.” [citation omitted] We explained, however, that the strict scrutiny triggered by status-based discrimination could not be avoided by arguing that “one of its goals or effects [was] preventing religious organizations from putting aid to religious uses.” [citation omitted]  And we noted that nothing in our analysis was “meant to suggest that we agree[d] with [Montana] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” [citation omitted]

Maine’s argument, however—along with the decision below and Justice BREYER’s dissent—is premised on precisely such a distinction. [citations omitted]

That premise, however, misreads our precedents. In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why. “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” [citations omitted]

Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism. [citations omitted] Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the “nonsectarian” requirement. [citation omitted] That suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well. In short, the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.

Maine and the dissents [advance]the argument that the State may preclude parents from designating a religious school to receive *2002 tuition assistance payments. In that case, Washington had established a scholarship fund to assist academically gifted students with postsecondary education expenses. But the program excluded one particular use of the scholarship funds: the “essentially religious endeavor” of pursuing a degree designed to “train[ ] a minister to lead a congregation.” [citations omitted]. We upheld that restriction against a free exercise challenge, reasoning that the State had “merely chosen not to fund a distinct category of instruction.” [citation omitted]

Our opinions in Trinity Lutheran and Espinoza, however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended to be used “to prepare for the ministry.” Trinity Lutheran, 582 U. S., at ––––, 137 S.Ct., at 2023; see also Espinoza, 591 U. S., at ––––, 140 S.Ct., at 2257; Locke, 540 U.S. at 725, 124 S.Ct. 1307. Funds could be and were used for theology courses; only pursuing a “vocational religious” degree was excluded. Ibid.; see also Trinity Lutheran, 582 U. S., at –––– – ––––, 137 S.Ct., at 2022–2024 (explaining narrow reach of Locke); Espinoza, 591 U. S., at –––– – ––––, 140 S.Ct., at 2257–2258 (same).

Locke’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” 540 U.S. at 722, 725, 124 S.Ct. 1307. But as we explained at length in Espinoza, “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools comparable to the tradition against state-supported clergy invoked by Locke.” 591 U. S., at ––––, 140 S.Ct., at 2259. Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.

* * *

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[dissenting opinions omitted]