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Supreme Court Hears Another Major Case Involving Discrimination Against Religious Schools

Written by Noel Sterett on December 8, 2021 Category: Firm News

This morning, the Supreme Court heard oral argument in yet another case involving government discrimination against religious schools. The case, Carson v. Makin, involves the State of Maine’s tuition assistance program which makes funds available to help eligible families send their children to a school of their choice—unless the State deems the school to be too religious or “sectarian.” This exclusion particularly harms poor, religious families living in rural school districts in Maine that lack a public high school. These otherwise eligible families are compelled by law to enroll their children in school but cannot choose to use the tuition-assistance funds to enroll their children in a “sectarian” school.

Not surprisingly, several of the justices focused their attention on how the State determines which schools can be excluded as “sectarian.” According to the State, it tries to draw a distinction between a school’s religious status versus a school’s religious use. In other words, a school will not be excluded just because it is religiously affiliated or religious-in-name-only. Rather, a school will be excluded if the education it provides is too religious and actually serves to promote religious beliefs or a religious worldview. A few justices appeared deeply concerned that such a distinction was itself a form of impermissible discrimination between religious schools. A religious school that sought to promote popular values such as equity, equality, and generosity would likely not be excluded because those values are often taught in public schools as well. But a religious school that sought to promote unpopular beliefs such as the Catholic Church’s teachings on marriage and human sexuality would be excluded.

In 2002, the Supreme Court held in Zelman v.Simmons-Harris that the First Amendment does not require the government to exclude religious schools from school-choice programs. It is not an unconstitutional establishment of religion to allow parents to use funds to help their children attend a religious school. The Supreme Court recognized that the parent’s role in choosing the school removes any concern that the State is somehow establishing religion by providing the parents with tuition assistance.

Just last year, in Espinoza v. Montana Department of Revenue, the Supreme Court held that a state cannot exclude religious schools from an otherwise generally available benefit on account of the school’s religious character. Chief Justice Roberts wrote, “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.”

The Court’s decisions in Zelman and Espinoza likely spell doom for Maine’s case in Carson. The Supreme Court’s decision in Carson could further accelerate the growing school-choice movement and pave the way for increased enrollment in religious schools.

As we have noted here and here, increased enrollment at religious schools will likely lead to land use and zoning cases as religious schools look to expand or relocate to meet the increased demand. At Dalton & Tomich, we are already seeing an increase in the number of religious land use cases that we file on behalf of religious schools. Far too many religious school leaders are completely unaware of the substantial protections religious schools are afforded under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA). This is exactly why we have written a guide to help religious schools better understand and assert their rights.

Free School Land Use & Zoning Guide

Have you recently purchased a building or land and discovered you can’t use it because it isn’t zoned for religious assembly? Learn how to navigate the process and win the right to use your property.

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If you are looking to establish a new school, or if your religious school is seeking to expand its campus or add on to existing facilities, you need to be aware of how RLUIPA protects religious institutions against burdensome and discriminatory land use regulations.

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