In 1925, the court, in unanimously striking down an Oregon law requiring children to attend public schools, declared that a child’s education is within “the liberty of the parents and guardians to direct.” Nineteen years ago, the court upheld a Cleveland program empowering parents to redeem publicly funded vouchers at religious as well as nonreligious private schools. The court held that the program had a valid secular purpose (education). And that any advancement of, or entanglement of government with, religion was merely “incidental” because the money reached the school by the private choices of parents, and this involved no imprimatur of government approval of religion.
Last year, in a case from Montana, the court held that if a state decides to subsidize private education, it cannot disqualify some private schools solely because of their status as religious. Now, the court is being asked (by a pair of parents, represented by the Institute for Justice) to decide whether Maine can disqualify a school that has a religious status because of the use the school would make of the tuition money. Maine says, in effect, that it can disqualify a religious school that takes its status too seriously.
In the many Maine school districts that neither operate a public secondary school nor contract with a school to educate district students, parents can use state funds to pay tuition at a public or private school, in-state or elsewhere. But only if the school is “nonsectarian.” Maine says the school must not promote “the faith or belief system with which it is associated” and must not present the material it teaches “through the lens of this faith.” That is, parents can pick only religious schools that are not very serious about religion.
Maine has no objection to its funds paying tuition at a New Hampshire school that says it teaches “universal . . . spiritual values” in classes and at mandatory weekly chapel meetings. So, Maine, which perhaps has a list of “spiritual values” that are “universal,” says a school can have a nominal religious status but cannot act on its particular religious tradition.
In the 2020 Montana case, the court acknowledged that some justices “have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status.” The court did not need to address this because Montana discriminated solely on a school’s status. If, however, the court agrees to hear the Maine parents’ case, the court can clarify whether a state can make a school’s participation in a tuition program conditional on the school submitting to government officials’ intrusive investigations of the school’s religiosity. The distinction between the religious status of a school and the use to which a religious school might put funds it receives as tuition often is a distinction without a difference: Status and usages are inseparable.
Decades ago, the court elaborated a three-part test of whether a statute pertaining to government contact with religion violates the proscription of “establishment” of religion. One of the three parts is: Does the statute require “excessive government entanglement with religion.” Surely Maine is plunged into deep entanglements when it undertakes to decide whether this or that religious school’s practices are below the state’s threshold of permissible religiosity.
Usually, questions about possibly excessive government entanglements with religion have involved governments somehow endorsing or otherwise promoting religion (e.g., crèches on public property, or prayers at public events). If on April 1 the court agrees to hear the Maine case, it can erase the unhelpful distinction between religious status and religious use, a distinction akin to the one it once made between books and maps.