Parents scored a victory in June 2020 when the U.S. Supreme Court ruled that school choice programs must be neutral in matters of religion.
The opinion meant that the government should neither favor nor oppose Maine farmers Troy and Angela Nelson, who prefer religious education for their children. Unfortunately, government-directed discrimination against the couple has continued in Palermo, a small town outside Augusta with no public secondary schools of its own.
Maine authorizes tuition assistance in such situations, allowing parents to send their children to public or private schools of their choice. The Nelsons found the best fit for their family at Temple Academy, a sectarian school in nearby Waterville, but the state excludes educational providers that teach from a religious perspective.
The insistence on nonsectarian instruction is relatively new. Maine launched its “town tuitioning” program in 1873, and for more than 100 years the state let parents select secular or religious options. The hands-off approach ended in 1980, when the state singled out religious schools and banned parents from choosing them.
Left with no alternative, the Nelsons settled for a secular private school. They also partnered with the First Liberty Institute and our firm, the Institute for Justice, and fought back in federal court with two other families facing similar discrimination.
Their legal argument is simple: Rather than stay out of religion, Maine took sides, violating the Free Exercise Clause of the First Amendment.
Something similar happened in the recent Supreme Court case, Espinoza v. Montana Department of Revenue, in which the Institute for Justice secured a landmark precedent on behalf of three Montana families. The ruling ended a government policy that barred parents from selecting schools merely because of their religious status.
Four months later, however, the 1st U.S. Circuit Court of Appeals went the opposite direction in the Nelsons’ case and upheld the exclusion of religious schools. To reach the decision, the appeals court made a bizarre distinction between religious “status” and “use.” The appellate court acknowledged that Maine cannot discriminate against religious schools, per Espinoza, but it upheld Maine’s ability to discriminate against schools that teach from a religious perspective.
The Nelsons see a distinction without a difference.
By definition, religious schools teach religious things. Otherwise, they would not be religious. Using the same twisted logic, the Nelsons could register their children in a soccer league that does not play soccer. After each practice, they could go to an ice cream shop that does not serve ice cream.
The 6th and 10th Circuits already have rejected the status-use distinction, and Supreme Court Justice Neil Gorsuch expressed skepticism of his own in Espinoza. Slightly more than one year later, on July 2, the high court agreed to settle the matter in the Nelsons’ case, Carson v. Makin.
Besides ending the status-use debate, the case will hinge on a second distinction: that parents – and not the government – choose schools in Maine’s tuition assistance program.
Although a constitutional conflict might arise if the government required children to receive a religious education, parents may make that choice as part of a generally available public aid program, which is their right.
New Hampshire, which has tuitioning towns similar to the ones in Maine, recently agreed. Following an Institute for Justice lawsuit and months of legislative debate, New Hampshire Gov. Chris Sununu signed a bill July 7 that ends the exclusion of religious schools from the state’s student aid program.
Now New Hampshire parents can decide for themselves what works best for them. So could the Nelsons, if Maine would stop playing word games and return power to the people.
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