Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, March 12, 2021

Amicus Brief Supporting Cert Challenging Religious Exclusion from Tuition Benefits

Our Religious Liberty Appellate Clinic at St. Thomas, joined by Prof. Doug Laycock and the Christian Legal Society, has filed an amicus brief supporting cert in Carson v. Makin, a case challenging Maine's exclusion of students at K-12 religious schools from tuition benefits allowed to students if they attend secular private schools. The program allows students in rural areas without a public school to receive tuition benefits to attend a secular private school but not a "sectarian" one. The First Circuit had upheld that exclusion on the ground that while the Supreme Court has forbidden exclusion of schools based simply on their religious affiliation ("status"), this exclusion was based on the fact that tuition funds would be used for religious teaching--a distinction reserved by the Court in its previous cases, Trinity Lutheran and Espinoza.

Here are a couple of bits from our summary of argument: 

[T]he status-use distinction collapses in the context of religiously grounded K-12 education. Religious schools teach the same secular subjects as other schools; in providing benefits assisting the teaching of these subjects, the state cannot discriminate on the basis that some schools also teach religion. To teach religion is what it means to be a religious school.... Some religious schools teach an essentially secular curriculum plus a religion course or chapel services. Other schools integrate religion into their secular subjects. These schools—and families who use them—do so because their religious identity permeates education. Whether called “belief or status” or “use,” “[i]t is free exercise either way” (Trinity Lutheran, 137 S. Ct. at 2026 (Gorsuch, J., concurring in part)), and the state presumptively cannot discriminate against it.....
              II. Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.

Although cert is always an uphill  climb, this case has a decent chance, I think, because the First Circuit's decision is such a blatant evasion of the Court's ruling in Espinoza.

St. Thomas 3L student Carolyn McDonnell participated in drafting the brief.

(See also Jon's post on the case and the ND clinic's amicus brief.)


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