n Thursday, the U.S. Supreme Court struck down Maine’s ban on using state money to pay for scholarships at religious schools. The decision, written by Chief Justice John Roberts, rules that if states institute publicly funded scholarship programs, they cannot exclude religious schools from the list of available options that parents have simply because they are religious.
The ruling could have a huge impact on a current lawsuit over North Carolina’s Opportunity Scholarship program and on the thousands of families that use the program to educate their children each year.
The Maine case, Carson v. Makin, came from two families who sued the state saying that barring them from using their state-funded voucher for schools that provide religious instruction violates the First Amendment’s free exercise clause. In some of Maine’s rural areas, there are not high schools available to families, and the state allows them to either travel to another school, or use state funds to pay for a secular private school. This decision finds that religious schools should be an option for these families as well.
Roberts wrote that the Maine program “operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
“Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools,” he wrote.
Justice Stephen Breyer wrote the dissenting opinion, with Justices Elena Kagan and Sonia Sotomayor signing on. Breyer said the decision violated the establishment clause of the U.S. Constitution and could eventually lead to states being required to fund private religious education.
In her own writing, Sotomayor agreed, saying the decision changes the court’s position “from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”
Roberts and the majority of the court disagreed with that concern, writing that Maine could instead provide more schools and transportation to them, but if the state does offer a voucher program it cannot exclude schools based on religion without violating the parent’s right to exercise their religious freedoms.
Meantime in North Carolina, the N.C. Association of Educators (NCAE) teachers’ union, is leading a lawsuit over the Opportunity Scholarship Program saying that allowing OSP funds to go to private religious schools was discriminatory.
The N.C. Court of Appeals heard arguments earlier this month about whether the NCAE’s lawsuit should proceed before a single Wake County judge or a state-level three-judge panel. If the court decides that plaintiffs are challenging the overall existence of the OSP program, it would go to the three-judge-panel. The N.C. Supreme Court has already upheld the constitutionality of the OSP program in a 2015 ruling. During the hearing, the judges seemed to think that courts may not have the the authority to rewrite the OSP program rules on religious schools without the legislature’s action.
Now, with Wednesday’s SCOTUS ruling backing up the constitutionality of parents using their allocated public funds for private religious schools, the NCAE’s argument in the lawsuit may be answered.
Thursday’s decision is similar to a 2020 U.S. Supreme Court decision in which the high court found that Montana families had the right to use public funds for a religious school. The majority opinion, also written by Roberts, found that if a state institutes a publicly funded system for families to use private schools, the state could not exclude some schools for families purely based on the fact that their chosen school provides religious education.
More than 20,000 students use Opportunity Scholarships now to attend more than 500 private schools across North Carolina. State lawmakers recently increased both the size of the scholarship and the upper bounds of income eligibility. As of mid-May, the program had received more than 14,700 new applications for 2022-23, according to Parents for Educational Freedom in North Carolina. The program had 16,751 new applications for the 2021-22 school year, with more than 15,000 families renewing scholarships that year.