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Reducing the Separation of Religious Schools and Public Money

Education Policy Brief #56 | By: Steve Piazza | October 4, 2022

Header photo taken from: MATTHEW SOBOCINSKI, USAT

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Supreme Court rules Maine cannot discriminate against religious schools in tuition program.

Photo taken from: CNS / Tyler Orsburn

Policy Summary

In line with a recent string of United States Supreme Court (USSC) decisions lauded by many as protecting religious freedoms, the USSC overturned a lower court decision that prevented state money from being used for religious school tuition. The June 21, 2022 6-3 decision in Carson v. Makin was arrived at by an ideologically divided court.

The issue centered on Maine’s policy that provided funds for rural county students to attend private, nonsectarian schools if the distance to public schools proved too prohibitive. Parents had sued claiming religious discrimination after they attempted to apply the funds to a religious institution but were denied.

Writing for the majority, Chief Justice John Roberts states, “ As we held in Espinoza [Espinoza V. Montana Department of Revenue (2020)], a ‘State Need not subsidize private education. But once the state decides to do so, it cannot disqualify some private schools solely because they are religious.’”

Justice Stephen Breyer asserts in the dissent that it’s more about what is being taught, and how. “Here, again Maine denies tuition money to schools not because of their religious affiliation, but because they will use state funds to promote religious views.

Policy Analysis

By the time a case reaches the USSC, it may have taken on a larger context than when it began. What starts as a parental complaint over school tuition can find itself at the center of a longstanding, contentious national debate.

For many, it becomes a fight against religious discrimination. For others it’s about defending public schools from sectarian advocates.  Still others see it as the larger question hitting right at the core of first amendment rights, if not the moral fabric of the country itself.

Just for context, of the more than 30,000 private schools in the U.S. in 2019-2020, almost two thirds were considered religious, according to a survey by the National Center for Educational Statistics. This is compared to 97,500 public schools.

And though the number of private schools has decreased, the number of religious schools have increased. This may be due to a number of dynamics, not the least of which is that currently 28 states and D.C. offer school voucher and/or tax credit programs.

Nonetheless, it is clear here that this USSC majority does not consider funding religious schools as a violation of the church and state clause, any more than it did when ruled in favor of religious expression by an Idaho football coach in the case of Kennedy v. Bremerton School District [2022].

But it’s not simply a philosophical exercise. 


Among the public overall, there is even less support for public spending on non-religious private schools.

Chart taken from: YouGov America

(click or tap to enlargen)

This of course leads us further to yet another level of context: whether members of the USSC are activist justices or not. It’s not hard to accept that the conservative appointed justices on this court are amenable to conservative and theocratic agendas. 

After all, the plaintiffs’ case in Carson was argued by attorneys from the Institute for Justice, a conservative organization that has close ties to the Koch family and Betsy DeVos.

The case itself may even have been chosen since, according to EdChoice, a conservative pro choice organization, Maine ranks fifth nationally in money given to private schools as percentage of its total education revenues; moreover, while having just 5% of the Illinois population it spends 10 times more than Illinois using that calculation.


In dissent, Justice Stephen Breyer argued that the Constitution gives the states some leeway to choose how scrupulous they want to be in keeping taxpayer dollars away from religious use.

To point, cases like this do not solve religious discrimination. In fact, they can even perpetuate it.The dividing line between church and state is a cornerstone of US democracy. Over the years the line has been both defended and crossed in the decisions of the Supreme Court.

At present, the line is being crossed by conservative special interests on the court that have gamed the system in their favor, a trend that is yet another example of how vulnerable our democracy truly is. 

It’s not quite the charge of the USSC to directly make rules, but more so test their constitutionality. However, court interpretations of the constitutionality of certain laws can lead to changes in regulations at the state and local level that fly in the face of constitutional wisdom, as is currently the case in the court decisions cited above. Such court decisions should compel the other branches of government into action to preserve the integrity of church state division.

It should be noted that the child of the original plaintiffs graduated high school before the decision and was never able to benefit from it.

Engagement Resources​

Click or tap on resource URL to visit links where available 

The text for the ruling in Carson v. Makin can be found here: https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf

Here is a link to an organization advocating for public funding of schools: https://pfps.org/home/

Americans United has long been supporting the separation of church and state in order to protect all religions as they interact with public life: https://www.au.org/#

For more reading, try The Journal of Church and State: https://academic.oup.com/jcs

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