LISTEN: Supreme Court hears arguments in case over use of public funds for religious schools

WASHINGTON (AP) – The Supreme Court appeared ready on Wednesday to rule that religious schools cannot be excluded from a Maine program that offers tuition assistance for private education, a move that could facilitate the access of religious organizations to taxpayers’ money.

Listen to the arguments in the player above

After nearly two hours of argument, the court’s six conservative justices seemed largely unconvinced by Maine’s position that the state is willing to pay for the rough equivalent of a public education, but not for religious inculcation.

The court’s three liberal justices said they were more aligned with the state’s arguments.

The case is the latest test of religious freedoms for a Supreme Court that has promoted complaints of discrimination based on faith, including in other state programs that have sought to keep public money from religious organizations.

Judge Brett Kavanaugh used an example of neighbors, one choosing a secular private school and the other opting for a religious school for their children. The first family receives state aid, but the second does not.

“It’s just discrimination on the basis of religion at the neighborhood level,” Kavanaugh said.

But Judge Elena Kagan said Maine appeared to design its agenda to avoid raising “issues of religious patronage, religious divide, etc.”

In largely rural Maine, the state allows families who live in towns that do not have public schools to receive public tuition fees to send their children to the public or private school of their choice. The program excludes religious schools.

Students who live in a district with public schools or in a district that contracts with another public system are not eligible for the tuition program.

Parents challenging the program argue that the exclusion from religious schools violates their religious rights under the Constitution. Teacher unions and school boards say states can impose limits on public funds for private education without infringing religious freedoms.

Most of the judges attended religious schools and several sent or sent their children there. No one spoke of the experiences in court on Wednesday.

To qualify for the Maine program, schools don’t even have to be in the state, or the United States for that matter, said Michael Bindas, an attorney with the public interest law firm. libertarian Institute for Justice who advocated on behalf of parents. .

But Christopher Taub, the chief deputy attorney general of Maine, told judges the critical issue is not the location of the school, but whether it “instills in people a particular religion.”

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Taub drew the ire of Judge Samuel Alito, who noted that parents could send their children to elite private schools and that the state was taking part of the note.

“Is that the rough equivalent of a public education?” Alito asked derisively.

Kagan said the court allowed states to make different decisions at or near the intersection of church and state.

“And what we’ve talked about a lot in our First Amendment religion cases is this idea of ​​play in the joints, that not everyone has to follow the same pattern and that there is a certain amount of funding that is neither prohibited by the First Amendment nor commanded by the First Amendment, ”she said.

In the Maine case, parents filed a lawsuit in federal court so they could use state aid to send their children to Christian schools in Bangor and Waterville. The schools in question, Bangor Christian School and Temple Academy, are uncertain whether they would accept public funds, according to court documents.

The Bangor school has said it will not hire teachers or admit transgender students. The two schools said they are not hiring gay or lesbian teachers, according to court records.

Last year, the High Court ruled 5-4 that states must give religious schools the same access to public funding that other private schools receive, preserving a Montana scholarship program that had largely benefited students of religious institutions. .

In this case, the court said states were under no obligation to allow the use of public funds in private education. But they cannot exclude religious schools from these programs, once established.

But even after that ruling, the 1st U.S. Court of Appeals upheld Maine’s program, ruling that the state was not violating any person’s constitutional rights by refusing to allow taxpayer dollars to be used for l religious education. The three-judge panel included retired judge David Souter, who occasionally hears cases before the appeals court.

Critical race theory made a brief appearance in Wednesday’s arguments. After Kagan asked if a “white supremacist school” would be included in the program and Taub assured him that it would not, Alito responded.

“Would you say the same about a school that teaches critical race theory? ” He asked.

Taub replied, “I mean, this one is closer because, frankly, I don’t know – I don’t really know exactly what it means to teach critical race theory.”

Critical Race Theory is one way of looking at American history through the prism of racism. The concept has become a rallying cry for Republicans who say the theory is being used to rewrite American history. But there is little evidence that critical race theory is taught in K-12 schools nationwide.

A decision in Carson v. Makin, 20-1088, is expected by the end of June.

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