Supreme Court rules Maine's tuition assistance program must cover religious schools The 6-3 opinion, which was along ideological lines, invalidates provisions in 37 state constitutions that ban the direct or indirect use of taxpayer money in religious schools.

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Supreme Court rules Maine's tuition assistance program must cover religious schools

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MARY LOUISE KELLY, HOST:

Today the Supreme Court struck down a state ban on public funding for religious schools in Maine. The court's 6-3 decision is the latest in a series of decisions siding with religious interests, as NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: For much of the 20th century, the Supreme Court stood firmly behind the Founding Fathers' idea of a high wall of separation between church and state. But in recent years, the court has instead sought a greater accommodation between church and state, often viewing supposedly neutral laws as hostile to religion. That trend was never more evident than in today's decision involving the funding of public education in Maine.

Maine is the most rural state in the country, so rural, in fact, that more than half of the school districts don't have a high school. The state deals with that problem by contracting with existing public high schools to take the kids from the districts with no high schools and to pay the same tuition to non-sectarian private schools to take up the slack as well. But the state does not pay tuition for students attending religious schools. Two families challenged the funding system, contending that the state should also pay for their children's tuition at private religious schools, where the curriculum is, quote, "biblically based with religion integrated through all content areas."

Today the Supreme Court agreed with them. Writing for the majority, Chief Justice John Roberts said that when the state pays tuition for students at non-sectarian private schools but not religious private schools, that is discrimination against religion. The chief justice did offer some suggestions on how to comply with the decision, including setting up a state boarding school for children who live far from a high school or offering remote learning to them or building more high schools. Maine State Attorney General Aaron Frey blanched at those suggestions today.

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AARON FREY: I don't know to what extent those suggestions were reasonable suggestions or the idea that the state is going to, for example, open up boarding schools. You know, that frankly may not be consistent with what is actually practicable for, you know, your average working-class state.

TOTENBERG: The court's three dissenters cited these very problems as the reason that, until today, the Supreme Court had allowed what it called some play in the joints between the Constitution's ban on state establishment of religion and its guarantee to the free exercise of religion. Writing for the dissenters, Justice Stephen Breyer noted that in previous decisions, the court said that states may set up tuition voucher programs paid by the state that allowed parents to send their children to parochial schools. The keyword is may, he said. We have never previously held what the court holds today, namely that a state must use state funds to do that. University of Pennsylvania law professor Marci Hamilton sees the current court as having a more theocratic than secular viewpoint.

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MARCI HAMILTON: I think the Supreme Court is definitely on that trajectory. The inevitable, logical conclusion to what they're saying is that it's unconstitutional under the free exercise clause to deny religious schools the same funding that public schools get.

TOTENBERG: In addition to Chief Justice Roberts' suggestions, another possibility would be for some of the non-religious private schools in Maine to become public charter schools. Between 80 and 95% of the students in those schools are already from areas without a regular high school and have their tuition paid by the state. But that would require some changes in state law. It's not at all clear that Maine's religious schools want state funding and the strings that come attached to it. Were any of them to become charter schools, for instance, participation would likely require that they accept students of different faiths, that they not discriminate based on sexual orientation and that they teach the state-approved curriculum. But Notre Dame law professor Richard Garnett says charter schools could be a gray area.

RICHARD GARNETT: I am genuinely curious to see how the law of charter schools develops and whether we get to a point where a charter school is permitted to be as kind of religiously imbued as a parochial school is.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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