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Thursday, June 30, 2022
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It may not alleviate the Jewish community’s heavy tuition burden, but a watershed decision like this from the Supreme Court certainly has the potential to lighten the load.

On Tuesday, June 21, the nation’s highest court issued a decision on Carson v. Makin, indicating that states may not exclude families and schools from tuition-assistance programs because of a school’s religious status; if states provide funds to private schools, they cannot discriminate against private schools with a religious identity.

The court’s ruling declared unconstitutional the State of Maine’s longstanding policy that prohibited parents from using state tuition-assistance payments at religious high schools. The case, with the majority opinion authored by Chief Justice Roberts, addressed the fact that Maine provides tuition-assistance payments for all families with school-age children who live in locales that do not operate public high schools. Under the program, parents may choose the accredited or approved school their child attends and the state will pay the tuition, similar to a voucher system. But, since 1980, Maine has prohibited parents from choosing to enroll their children in “sectarian” high schools under the program. This policy, which is considered discriminatory against religious schools, has been challenged in court twice, in 1999 and 2004; the U.S. Court of Appeals upheld the policy.

The Supreme Court, however, on Tuesday reversed the lower courts’ rulings. Writing for the Court in the 6-3 decision, Chief Justice John R. Roberts asserted: “The state pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A state’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Tuesday’s decision builds on two prior Supreme Court decisions. In 2020, the court decided Espinoza v. Montana Department of Revenue, and in 2017, Trinity Lutheran v. Columbia, where in both cases the Supreme Court declared unconstitutional state aid programs that excluded the participation of religious institutions because of their status as religious entities. Espinoza, specifically, decided that states can’t refrain from providing funds for religious schools that they would provide to other nonpublic schools.

The OU Advocacy Center’s Executive Director Nathan Diament said that this watershed decision does not only apply to the education context. “The court decided that there is no constitutional reason to exclude religious schools or organizations under the principle of equal treatment. This is not how this area of constitutional law was understood 50 years ago, when separation of church and state meant the government had to go out of its way to avoid involvement in religious institutions,” he told The Jewish Link.

“This case at its core stands for the proposition that there are no religious obstacles to excluding schools or religious institutions from receiving government funds to private institutions. The government often provides funds to nonprofits to serve society’s purposes; it can’t say everyone has access to them except the religious,” said Diament.

“The potential for impact is very large, but it’s important to understand what this decision says and what it doesn’t say,” said Diament, noting that the Supreme Court is clearly not mandating that the government start paying all religious school tuition immediately. “The state need not subsidize private education; however, this is the third case in five years that indicates the doctrine that states must be neutral toward religion, not discriminate against it.”

As a practical matter, in New York and New Jersey, the idea is that if there is a government aid program to provide some kind of support to a nongovernmental entity for a secular purpose, “they can’t provide this to private organizations but not religious organizations,” said Diament.

Explaining further, he said that in the year 2000, the Supreme Court ruled that school vouchers are constitutional, but not all states decided to adopt them. “New Jersey still does not have a school voucher program, but not because it’s unconstitutional; because the state legislature does not want to enact it. This, on the other hand, is a watershed decision because funds cannot be restricted from religious entities when any nongovernmental entity receives any form of assistance.”

Diament told The Jewish Link that the work following this landmark decision will involve followup and research for the OU, specifically on the types of funds and programs that will now be open to the religious community. The first step will be to look at funds provided at the state level to private schools, and determine what existing programs can be utilized to support nonpublic schools. “Step two will be looking to create new programs at the federal level, like this past year when we created a program inside the infrastructure bill, funded through the Department of Energy, to make buildings more energy efficient.

“If someone had said synagogues, churches and parochial schools can’t get those grants because they are religious buildings… This decision says that’s wrong because these are policies that cannot exclude religious institutions. We will be looking to create other programs that our schools would have to be included in,” he said.

The Orthodox Union participated in the case by filing a friend of the court brief co-authored by attorneys Gordon Todd and Daniel Feith of Sidley & Austin, Professor Michael Avi Helfand of Pepperdine Law School, as well as Diament. Agudath Israel of America, along with several other Orthodox Jewish groups, also submitted an amicus brief in the case, authored by constitutional scholar Nathan Lewin. Coalition for Jewish Values also submitted a brief.

Rabbi Abba Cohen, Agudath Israel’s vice president for government affairs and Washington director, hailed the decision. “Agudath Israel has been fighting religious discrimination for decades, and we will continue to do so. We are thrilled that the Supreme Court has made clear that discrimination against religious instruction in state aid programs is a constitutional violation. Other states that have ‘no aid’ provisions in their state constitutions and law can effectively feel free to now enact programs that encourage or provide assistance to religious schools on an equal basis with other nonpublic schools.”

“This is a significant win for parents in Maine and across the country who will now have more freedom to choose private and religious schools for their children,” said Rabbi A.D. Motzen, Agudath Israel of America’s national director of state relations. “Today’s ruling endorses Agudah’s longtime position that states may not bar families from using state aid at the school of their choice simply because they choose a school that includes a religious curriculum.”

Rabbi Yaakov Menken, managing director of the Coalition for Jewish Values, made the following statement: “The Maine law was obviously prejudicial against religiously-motivated parents, forcing them to choose between shouldering secular education costs entirely on their own or denying their children the opportunity to attend a religious school. As we said in our brief to the Supreme Court, this was ‘an obvious burden and disincentive for religious observance,’ and we welcome the court’s recognition that this was a violation of the Free Exercise Clause of the Bill of Rights. Given the impact upon other forms of federal and state tuition assistance, parents and children nationwide will benefit from this important decision.”

The National Council of Young Israel issued the following statement: “The United States Supreme Court’s decision in Carson v. Makin is a tremendous victory for religious schools and a stark reminder that faith-based institutions cannot unjustly be singled out by the government or targeted in an inequitable fashion. The court made it abundantly clear that a religious institution cannot be discriminated against solely because of its status as a faith-based entity and that states cannot deny funding to religious institutions simply because they believe that it would go towards a religious use. When states attempt to distinguish between an institution’s religious identity and its religious practice, it is a slippery slope that runs afoul of the United States Constitution. We are grateful that the court struck down Maine’s unconstitutional program and put an end to the state’s imprudent decision to turn a blind eye to the free exercise of religion, which is at the very foundation of the democratic values upon which this nation is built. Children in religious schools are entitled to have the same opportunities to learn and thrive as students in other types of schools.”

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