US Supreme Court Approves Tuition Vouchers for Religious Schools: Officially Approves Florida School Choice Laws | rumberger | Church
Earlier this summer, the United States Supreme Court ruled that Maine’s tuition assistance program violated the free exercise clause of the First Amendment. In order to uphold Maine’s Constitutional guarantee that every child receives a free public education, the program allowed parents residing in rural areas of Maine who do not operate a public high school to choose from a list of public schools and private approved for which they like state-funded tuition assistance. Parents could choose from a list that included single-sex schools, schools inside and outside Maine, and even schools in foreign countries. However, the approved list of schools had, since 1981, been limited to “non-sectarian” schools and excluded private religious schools, on the grounds that public funding of private religious schools would violate the Establishment Clause of the First Amendment. This restriction, the Court determined, was an impermissible prohibition on the basis of religion.
The result in Carson ex rel. OC v. Makin, No. 20-1088, 142 S. Ct. 1987 (June 21, 2022), should come as no surprise to anyone who has followed recent U.S. Supreme Court rulings on free exercise. As recently as 2020, the Court overturned a Montana Supreme Court decision that struck down a similar tuition assistance program in that state. While Montana’s high court found that because the program allowed public assistance to go to religious schools, therefore it should be struck down, the Supreme Court struck down, finding that the free exercise clause did not allow Montana to withhold the public benefits of religious schools exclusively on account of the religious character of the schools. See Espinoza v. Mountain. Department of the Rev., 140 S.Ct. 2246 (2020). And the Court just a few years before Espinoza canceled a program in Missouri that offered grants to nonprofit organizations that install playground surfaces made from recycled tires, because the program had an express policy of denying grants to applicants owned or controlled by an organization religious. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017).
Simply put, once the government provides a benefit, it usually cannot prevent applicants from receiving that benefit just because they are religious. See Espinoza, 140 S.Ct. to 2261; Lutheran Trinity, 137 S.Ct. to 2019 (“[D]denying a generally available benefit solely on the grounds of religious identity imposes a sanction on the free exercise of religion that can only be justified by a primary state interest. (internal quotes omitted)). Instead, programs that seek to exclude religious entities from government benefits must meet rigorous scrutiny. That is, they must promote an overriding interest of the state and be closely tailored to the pursuit of those interests. As noted above, the Court has been reluctant to find state programs that meet this heavy burden lately. In doing so, the Court has repeatedly confirmed that “a neutral benefit program in which public funds are disbursed to religious organizations through independent choices of private benefit recipients does not violate the Establishment Clause” . carson, 142 S.Ct. to 1997. Thus, a state cannot claim a compelling interest – and therefore cannot withstand scrutiny – in perpetuating a separation between church and state “more fiercely” than that required by the federal Constitution.
Whereas carsonwas widely expected, it nonetheless represents another marker of what critics say is the broadening of the free exercise clause to the detriment of the establishment clause. See id. at 2002 (Breyer, J., dissenting) (“The Court today pays almost no attention to the words in the [Establishment] Clause while paying almost exclusive attention to the words of the [Free Exercise Clause].”); see also identifier. to 2012 (Sotomayor, J., dissenting) (“This Court continues to dismantle the wall of separation between Church and State that the Framers fought to build.”). And while states that run tuition assistance programs must now make sure they comply with the court’s ruling, a state need not worry. Indeed, school choice laws in Florida already allow parents to use state tuition assistance at religious schools. For example, the Family Empowerment Scholarship Program allows parents who receive state-funded tuition vouchers to use them at private religious schools. See § 1002.394(2)(g), Florida Stat. Similarly, the Florida Tax Credit Scholarship Program also allows for the distribution of scholarships to families who wish to use them at private religious schools. See § 1002.395(2)(g), Florida Stat. The same is true for disabled students eligible for a scholarship, see § 1002.39(7), Fla. Stat., and for participants in the Florida Voluntary Pre-Kindergarten Program. See §§ 1002.51(7), 1002.53, Florida Stat.
Three times in the past five years, the United States Supreme Court has ruled that when states provide a benefit, they cannot prevent entities from receiving that benefit simply because they are religious. As the carson The Court noted that nothing, in its view, means that states must fund religious education: rather than excluding sectarian schools, Maine could have, for example, “expanded[ed] the reach of its public school system, increase[d] the availability of means of transport, providing[d] a combination of tutoring, distance learning and partial attendance, or even operating[d] its own boarding schools. 142 S.Ct. to 2000. “State[s] no need to subsidize private education. But once a state decides to do so, it cannot disqualify certain private schools just because they are religious. Espinoza, 140 S.Ct. at 2261. Other States may, in light of carson‘s holding company, need to reconsider their existing tuition assistance programs or decide how and if they wish to implement their own program. On the other hand, Florida can rest easy knowing that its programs have received official approval to continue operating as usual.