1st Circuit Upholds Maine's Exclusion of Sectarian Schools From Tuition Reimbursement

In Carson v. Makin, (1st Cir., Oct. 29, 2020), the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Plaintiffs challenge this, particularly in light of the U.S. Supreme Court's Trinity Lutheran and Espinoza decisions. The court distinguished Supreme Court precedent as follows:

Accordingly, we proceed on the understanding that this restriction, unlike the one at issue in Espinoza, does not bar schools from receiving funding simply based on their religious identity -- a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.... Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program....

The difficulty Maine confronts is that many of its localities cannot feasibly provide the benefits of that free public education directly to their residents. Thus, Maine has had to adapt to that reality. In doing so, it has chosen to provide -- while still ensuring that any parent in Maine may send their child to a religious school at their own expense -- tuition assistance for those children who live in localities that operate no public secondary school of their own to attend a private school that will provide a substitute for what they cannot get from the government. 

In conditioning the availability of that assistance on the requirement that recipients use it for educational instruction that is as nonsectarian in content as the free public education that is not directly available to them, Maine transgresses neither the Free Exercise Clause nor the Establishment Clause, nor any of the other provisions of the federal Constitution that the plaintiffs invoke.

Courthouse News Service reports on the decision.

2nd Circuit Hears Oral Arguments In Vermont School Voucher Case

On Tuesday, the U.S. 2nd Circuit Court of Appeals heard oral arguments (audio of full arguments) in A.M. v. French. In the case,  a Vermont federal district court refused to order the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. (See prior posting.) ADF (which represents plaintiffs) has a case page with links to some of the pleadings and other material on the case.

South Carolina Supreme Court Invalidates Emergency School Aid Program

 In Adams v. McMaster, (SC Sup. Ct., Oct. 7, 2020), the South Carolina Supreme Court held that South Carolina Governor Henry McMaster's allocation of $32 million in federal emergency education funding to create one-time grants for students to attend private and religious K-12 schools violates the South Carolina Constitution.  The court emphasized that the federal funds awarded to South Carolina are received by the State Treasury and distributed through the Treasury directly to private schools.  The court concluded:

We hold the Governor's decision constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution.

Island Packet reports on the decision.

Vermont's Town Tuition Program Challenged

In Vermont, school districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved private high school. Suit was filed this week in a Vermont federal district court challenging the exclusion of private religious schools from participating in this program, alleging that the exclusion violates free exercise, free speech and equal protection rights.  The complaint (full text) in A.H. v. French, (D VT, filed 9/28/2020) alleges in part:

Denying a public benefit based on the religious status of a child's school penalizes families who choose to exercise their faith by sending their children to religious schools. The school district's denial also discriminates against religious private schools because although the school board categorically refuses to fund tuition to religious schools, it regularly provides such funds to secular private schools. This discrimination violates the Free Exercise Clause's neutrality principle.

ADF issued a press release announcing the filing of the lawsuit.

2nd Circuit Enjoins Pending Appeal Vermont's Exclusion of Catholic High School Students From Dual Enrollment Program

As previously reported, earlier this year a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. This week, in E.M. v. French, (2d Cir., Aug. 5, 2020), the U.S. 2nd Circuit Court of Appeals in a brief order granted an emergency injunction pending appeal, saying:

In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Appellants have a strong likelihood of success on the merits of their claims.

ADF issued a press release  announcing the 2nd Circuit's action.

Suit Challenges North Carolina Opportunity Scholarship Program

Suit was filed in a North Carolina state trial court this week challenging North Carolina's Opportunity Scholarship Program.  The complaint (full text) in Kelly v. State of North Carolina, (NC Super. Ct., filed 7/27/2020), alleges that as implemented the Program violates various provisions of the North Carolina state Constitution. The complaint says in part:

2. The Program sends millions of taxpayer dollars to private schools without imposing any meaningful educational requirements. As implemented, many of the Program’s funds are directed to schools that divide communities on religious lines, disparage many North Carolinians’ faiths and identities, and coerce families into living under religious dictates.

3. The Program as implemented funds discrimination on the basis of religion. Families’ ability to participate in the Program is limited by their religious beliefs and their willingness to cede control of their faith to a religious school.

4. The Program as implemented funds schools that discriminate against students and parents based on who they love or the gender they know themselves to be, and against those with religious beliefs that do not condemn homosexuality, bisexuality, or gender non-conformity.

NCAE issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Suit Challenges South Carolina Grants To Private School Students

As reported by The Island Packet, a South Carolina state court judge in Adams v. State of South Carolina, (SC Com.Pl., July 21, 2020) has issued a temporary restraining order (full text) prohibiting the distribution of  Safe Access to Flexible Education (SAFE) Grants until a July 29 hearing in the case.  The grants are in the form of one-time tuition vouchers for low-income families sending their children to  private schools (including religious schools). They are funded through the federal CARES Act.  In a complaint (full text) filed July 21, a taxpayer contends that the grants violate the ban in the South Carolina constitution on the expenditure of public funds for the direct benefit of any religious or other private educational institution. The complaint alleges that the grants will give private school students some 13 times as much as the amount received per public school student under the CARES Act.

Supreme Court Clears Docket In Light of Two Recent Major Decisiions.

In orders released yesterday (Order List), the U.S. Supreme Court cleared its docent of a number of abortion cases in light of its decision earlier this week in June Medical Services v. Russo.  The court granted certiorari and summarily vacated the judgment below and remanded to the 7th Circuit two appeals in Box v. Planned Parenthood of Indiana and Kentucky (Docket No. 18-1019 and 19-816). The Court also denied certiorari in Yost v. Planned Parenthood, (Docket No. 19-677) and Hill v. Whole Woman's Health, (Docket No. 19-743).

In light of its school aid decision earlier this week in Espinoza v. Montana Department of Revenue, the Court granted certiorari, summarily vacated the judgment below and remanded to the 7th Circuit the appeal in St. Augustine School v. Stand.

Suit Challenges Tennessee School Voucher Law

Suit was filed yesterday in a Tennessee state trial court challenging the constitutionality under the state constitution of the Tennessee's school voucher law. The funding law applies only to two urban counties (Nashville an Memphis areas). The complaint (full text) in McEwen v. Lee, (TN Chancery Ct., filed 3/2/2020) alleges violations of the state constitution's home rule provision, its education and equal protection clauses, and state provisions on appropriation of public funds. The complaint alleges in part:

The Voucher Law diverts taxpayer dollars to private schools that are not required to adhere to the same academic, accountability, governance, and non-discrimination requirements as Tennessee’s public schools. Diverting limited public education funding to private schools that do not provide students the same standards of education and civil rights protections as public schools violates Tennessee’s Constitution and state law.

The ACLU of Tennessee issued a joint press release announcing the filing of the lawsuit.

VP Pence Promotes New School Choice Scholarship Proposal

Vice President Mike Pence yesterday delivered a 20-minute address on School Choice at Saint Francis DeSales School in Philadelphia, PA. (Full text of remarks.) He particularly focused on the proposal for Education Freedom Scholarships that President Trump promoted in his State of the Union address on Tuesday.

Free Exercise Challenge To Vermont's Dual Enrollment Program Moves Ahead

In A.M. v. French, (D VT, Dec. 29, 2019), a Vermont federal district court refused to dismiss plaintiffs' claim that Vermont's administration of its Dual Enrollment Program for high school students violates their right to free exercise of religion.  Vermont pays tuition for high school students to take a limited number of courses at colleges.  While public school, home schooled and private non-sectarian school students may participate in the program, students at religious high schools are not eligible. The court held in part:

Because Plaintiffs have plausibly alleged that the DEP Provision is not neutral and generally applicable, the burden shifts to Defendant to prove that the State's enforcement of the DEP Provision withstands strict scrutiny....

The State's intent appears to be ... the avoidance of using public fundes to subsidize religious worship. A state's "policy preference for skating as far as possible from religious establishment concerns" is not a state interest of the highest order because "achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause." Trinity Lutheran, 137 S. Ct. at 2024....

The court also rejected as adequate other justifications offered by the state for the exclusion of religious school students. (See prior related posting.)

School's Challenge To Disqualification From Voucher Program Moves Ahead

In Bethel Ministries, Inc. v. Salmon, (D MD, Nov. 14, 2019), a Maryland federal district court refused to dismiss a suit brought by a Christian school against state authorities claiming that the school was discriminated against on religious grounds when its eligibility to participate in the state's school voucher program (known as "BOOST") was removed. In order to participate, a school has to have a non-discrimination policy that include bans on discrimination on the basis of sexual orientation.  As explained by the court:

Bethel does not include sexual orientation or gender identity in its statement of nondiscrimination.... In the next paragraph, the handbook says, It should be noted, however, that Bethel Christian Academy supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view....

Irrespective of any language in the handbook, however, Bethel does not consider sexual orientation in the admissions process. The court reasoned:

If, as it alleges, Bethel has not discriminated on the basis of sexual orientation in admissions, then it has plausibly alleged that Defendants infringed upon several of its constitutional rights. Namely, Bethel has presented a plausible case that the Advisory Board’s determination of ineligibility was motivated by the school’s religious affiliation.

Supreme Court Grants Review In School Aid Case

The U.S. Supreme Court today granted certiorari in Espinoza v. Montana Department of Revenue,(Docket No. 18-1195, cert. granted 6/28/2019). (Order List).  In the case, the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. The question presented by the Petition for Certiorari is:

Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?

Here is the SCOTUSblog case page with links to all the petitions and briefs.

District Court, Citing 1st Circuit Precedent, Upholds Maine's School Funding Plan

In Carson v. Makin, (D ME, June 26, 2019), the Maine federal district court rejected a 1st Amendment challenge to Maine's program for paying tuition to private high schools for students in districts which do not operate their own high schools. The program excludes sectarian schools from participating. The district court approved Maine's plan on the basis of prior 1st Circuit decisions, despite challengers' argument that the Supreme Court's decision in Trinity Lutheran Church v. Comer should change the result. The district court said in part:

My decision not to decide the ultimate question the parties and amici pose—whether Trinity Lutheran has changed the outcome in Eulitt—is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. In the First Circuit, the parties can argue their positions about how Trinity Lutheran affects Eulitt. I congratulate them on their written and oral arguments in this court. I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher). My prompt decision allows them to proceed to the next level expeditiously.

(See prior related posting.) Maine Public Radio reports on the decision.

Christian School Sues Over Exclusion From State Funding Programs

Suit was filed on Monday in a Maryland federal district court by a preschool- 8 Christian school that was excluded from Maryland's scholarship program for low-income students, as well as the state's textbook and technology and its aging schools programs.  The complaint (full text) in Bethel Ministries, Inc. v. Salmon, (D MD, filed 6/24/2019), alleges that the school does not discriminate in admissions on the basis of sexual orientation, but that it was nevertheless disqualified because of its policy on transgender students and on same-sex marriage.  According to the complaint:

50. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that marriage is the union of one man and one woman. 

51. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that biological sex as either male or female is an immutable gift from God, and therefore identify with, dress in accordance with, conduct themselves in keeping with, use the pronouns associated with, and use the facilities provided for, their biological sex....

53. Bethel’s conduct policy prohibits any communication of a sexual nature, such as identifying as the opposite sex, or expressing romantic attraction towards another student.

The school alleges that disqualifying it on this basis violates its 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Justice Department Files Statement of Interest In Challenge To Maine's Exclusion of Parochial Schools From State Program

The Justice Department announced on Monday that it has filed a Statement of Interest in a suit brought in a Maine federal district court by parents and students claiming unconstitutional discrimination against religious schools.  In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  The suit challenges the Maine law that bars paying tuition for students to attend sectarian schools under this program. (See prior posting.) The Justice Department said in part:

Today’s filing addresses issues set forth in the Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on Oct. 6, 2017, at the direction of President Trump’s  May 4, 2017, Executive Order Promoting Free Speech and Religious Liberty.

AP reports on DOJ's action. [Thanks to Tom Rutledge for the lead.]

Florida Enacts New School Voucher Program [Corrected]

On May 10, Florida's Governor Ron DeSantis signed Senate Bill 7070 (full text) (legislative history).  Among other things, the bill creates a Family Empowerment Scholarship Program which offers school vouchers to students from low-income families.  The awards may be used at sectarian as well as non-sectarian private schools.  Reporting on the new law, Blog from the Capital points out that the Florida Supreme Court ruled a similar law unconstitutional in 2006.

Suit Challenges Vermont's Exclusion of Parochial High Schools From College Enrollment Program

Suit was filed this week in a Vermont federal district court challenging on free exercise and equal protection grounds Vermont's exclusion of students attending private religious high schools from the state's Dual Enrollment Program.  The complaint (full text) in A.M. v. French, (D VT, filed 1/20/2019), focuses on the state's program that allows high school students at public and private secular schools, but not religious schools, to take college courses at public expense. ADF issued a press release announcing the filing of the lawsuit.

Arizona Voters Repeal Expansion of School Voucher Program

In Arizona on Tuesday, voters repealed Senate Bill 1431 which expanded the state's Empowerment Scholarship Accounts to make all public school students eligible to apply. The vote on the measure, known as Proposition 305, was 67% in favor of repeal, 33% opposed to repeal. The program allows students with disabilities (and certain other students) to opt out of public schools and instead receive state funds for use in private schools or for home schooling.

Suit Challenges Exclusion of Sectarian Schools From Maine's High School Tuition Program

In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  However state law bars paying tuition for students to attend sectarian schools.  On Monday a suit was filed challenging that exclusion.  The complaint (full text) in Carson v. Hasson, (D ME, filed 8/21/2018), alleges that this exclusion violates the 1st and 14th Amendments.  In a press release announcing the filing of the lawsuit, First Liberty described the claims:

By singling out religious schools, and religious schools only, for discrimination, Maine violates the religious freedom and equal protection guarantees of the U.S. Constitution. As the U.S. Supreme Court’s Chief Justice John Roberts wrote for a 7-2 majority in last year’s Trinity Lutheran Church v. Comer decision, excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.” Armed with this recent decision, IJ and FLI’s clients intend to vindicate the principle that government programs cannot discriminate against religion.