Carson v. Makin

The  State of Maine relies on local school administrative units (SAUs) to  ensure that every school-age child in the state has access to a free  education. Not every SAU operates its own public secondary school. To  meet the state requirements, an SAU without its own public secondary  school may either (1) contract with a secondary school to provide school  privileges or (2) pay the tuition of a secondary school at which a  particular student is accepted. In either circumstance, the secondary  school must be either a public school or an “approved” private school.

To be an “approved” school, a private school must meet the state’s  compulsory attendance requirements (which can be demonstrated by  accreditation by a New England association of schools and colleges or by  approval by the Maine Department of Education), and it must be  “nonsectarian in accordance with the First Amendment.”

The Carsons, Gillises, and Nelsons live in SAUs that do not operate a  public secondary school of their own but instead provide tuition  assistance to parents who send their children to an “approved” private  school. The three families opted to send their children to private  schools that are accredited but do not meet the nonsectarian requirement  because they are religiously affiliated. Because the schools are not  “approved,” they do not qualify for tuition assistance. The families  filed a lawsuit in federal court arguing that the “nonsectarian”  requirement violates the Constitution on its face and as applied. On  cross-motions for summary judgment, the district court granted judgment  to the State and denied judgment to the plaintiffs. The U.S. Court of  Appeals for the First Circuit affirmed, noting that it had twice before  rejected similar challenges, and even though the U.S. Supreme Court had  decided two relevant cases in the interim, those cases do not produce a  different outcome here.

The case was decided on June 21, 2022. The Court held that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause. Chief Justice Roberts delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined, and in which Justice Sotomayor joined as to all but Part 1–B. Justice Sotomayor filed a dissenting opinion.

Credit: Oyez, LII Supreme Court Resources, Justia Supreme Court Center, available at: https://www.oyez.org/cases/2021/20-1088