Maine students are back in the classroom. Amid the typical organizing of bookshelves and waxing of floors, some students will enjoy a new “freedom”—about 4,500 of them will be able to use public funds to enroll in private schools that promote religious curricula through the state’s town tuitioning program.
This is because, in late June, the U.S. Supreme Court handed down its decision in the case of Makin v. Carson, reversing decades of precedent. In a national context, the case primarily addressed the constitutionality of public funds going toward religious instruction in K–12 schools. On a foundational level, the Court’s conservative majority has been signifying a shift in a longstanding interpretation of the Establishment Clause of the First Amendment.
Recent rulings, such as Espinoza v. Montana Department of Revenue (2019) and Trinity Lutheran Church of Columbia v. Comer (2017) highlight the shift. Each of these cases mandates the inclusion of qualifying religious entities in the distribution of public funds toward grant projects, such as schooling and playground development. The two cases were imperative to the Court’s Makin v. Carson opinion, as both the majority and dissenting opinions cited them.
Makin v. Carson was originally filed as part of a dispute over a Maine regulation that ensures every student has access to a secondary education, no matter the student’s location. Maine, as the most rural state in the country, uses a number of approaches to ensure students have equitable access. Most rural Maine families attend regional or contracted public school districts. For just under 3 percent of students, however, the state additionally offers a school voucher through the Town Tuitioning Program. Since 1873, qualified students with no secondary option or regional contract have been able to attend public or private schools of their choosing, as long as they operate under state guidelines. Guidelines for taxpayer-funded tuition vouchers range from simple health and safety codes to school accreditation and participation in statewide assessment programs.
Generally speaking, education vouchers yield mixed results, faring especially poorly when they involve private schools. Program design, implementation strategy, and educational outcomes all impact the success of a program. As such, it can be difficult to measure the “success” of Maine’s voucher program relative to, for example, reliable access to high-quality public schools in well-resourced communities. However, it is fair to acknowledge that the Town Tuitioning Program is a reasonable policy solution to the education challenges of Maine’s rural population distribution.
Makin v. Carson altered the structure of Maine’s program. Whereas Maine policy previously permitted religiously affiliated schools to be considered for tuition assistance, the SCOTUS decision (citing the Establishment Clause) mandated voucher applicability for all accredited schools, regardless of religious affiliation.
The previous interpretive flexibility in the Establishment Clause of the First Amendment (or as Justice Breyer put it, “play in the joints”) allowed states to decide when and how to allow religion-related funding with independent authority and distinction. Makin v. Carson eliminates state flexibility, forcing taxpayers to promote particular religious entities that have an educational presence in rural communities.
Attempting to address the problem of unequal access to publicly funded education by forcing the door open to public funding of other forms of education that may be discriminatory, or promote discriminatory curricula, does not solve anything. It only further emphasizes the need for the separation of church and state to be enforced within education. Nonetheless, the Supreme Court made its decision. What now?
Maine policymakers have reacted swiftly to court rulings by offering a solution that enables the protection of marginalized populations that are regularly, notoriously discriminated against in some religious settings. The state legislature passed amendments to The Maine Human Rights Act that block voucher funding to schools that actively discriminate on the basis of sexual orientation and/or gender identity.
Sections 18 and 19 of the act, which address the right to to freedom from discrimination in education and unlawful educational discrimination, now include protections based on ancestry, color, religion, sexual orientation, and gender identity. This makes Maine only a handful of states to offer such protections. Fittingly, the amendment also cites what the act does not designate: the requirement of religious entities that do not receive public funding to comply with the new measures.
While Makin v. Carson and preceding cases open the door to more significant use of public funding of religious entities, Maine’s new amendment creates stronger civil rights protections in the classroom. The protections shift the argument from the freedom to worship to the freedom of expression.
The amendment is meaningful on several levels. First, in Maine, the amendment disqualifies the schools that were listed in the initial filing for Makin v. Carson, on the basis of their anti-LGBTQ+ policies. Second, with the Supreme Court’s conservative majority showing no signs of stopping the reversal of legal precedent, doubling down on anti-discriminatory legislation at the state level is critically necessary at this moment to lessen the impact of problematic court decisions. This legislation is a workaround, not a comprehensive response to the constitutional improprieties of Makin v. Carson. However, it does alleviate some of the most arduous consequences of the ruling.
The fourteen states that operate voucher programming in the United States should take note of Maine’s actions. School voucher programs are expanding at a fast rate, especially in states where the school choice debate is red hot. Although programs take shape in different capacities, the protection of all students should be a top priority for all states following the Makin v. Carson decision.
States should protect students, staff, and faculty, and create a guardrail against public funding being used to endorse potentially discriminatory religious views. To do this, states should:
- Disqualify schools from voucher programming that actively promote discriminatory policy and/or teachings, such as those that do not permit gay students and teachers and those that implement tactics conducive to conversion therapy.
- Create protections for LGBTQ+ students beyond vouchers, across all public education, such as: anti-bullying/harassment legislation; bans on conversion therapy, which can take place within academic settings; and prohibitions of discrimination based on sexual orientation and/or gender identity.
Maine students are back hitting the books. For many of those who are now enrolled in a religious school, Makin v. Carson was welcome news. But for those who did not welcome the Supreme Court’s ruling, Maine lawmakers’ workaround of Makin v. Carson proves to be a useful lesson in policy adaptation.