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  • Robert Lusk

Supreme Court Strikes Down Another State Program that Discriminates against Sectarian Schools


On June 21, 2022, for the fourth time in eight years, the Supreme Court ruled that a state program that discriminated against sectarian schools violated the Free Exercise Clause of the First Amendment. Carson v Makin, 596 US ___ (2022). In Carson, the State of Maine provided tuition assistance for the secondary education of rural students in school districts that either lacked their own high schools or declined to contract with neighboring school districts for that purpose. Interestingly, until 1981, Maine did not distinguish between sectarian and other private schools. However, that year Maine excluded sectarian schools from its tuition assistance program based on Establishment Clause concerns.


The Supreme Court’s precedents in this area leaves Maine’s approach hard to understand, at least from a purely legal perspective. In Zelman v Simmons-Harris, 536 US 639 (2014), the Court upheld an Ohio tuition assistance program that parents could use for any private school, including sectarian schools. In Trinity Lutheran v Comer, 582 US ___ (2017), the Court struck down a Missouri grant program that discriminated against sectarian schools. And, most recently, in Espinoza v Montana Dep’t of Revenue, 591 US ___ (2020), the Court struck down a Montana constitutional provision that permitted the state to fund private schools so long as they were not sectarian. In Carson, as in Zelman and Espinoza, public money only went to public schools based on parental choice.


This line of cases is not directly applicable in Michigan. Michigan’s constitution bars public funding of all private schools and, thus, does not impermissibly discriminate against sectarian schools. The current Let MI Kids Learn petition drive has been characterized as an attempt to circumvent this constitutional prohibition, though opinions vary whether it will succeed with the voters or in the courts.