In a 6-3 decision, the Supreme Court of the United States ruled late Tuesday that the state of Maine has been acting unconstitutionally by offering tax-subsidized tuition assistance to parents sending their children to non-sectarian secondary schools while denying the same assistance to parents sending their children to religious schools.
The Roberts-written majority decision in the case “Carson et al v Makin” saw the Chief Justice side with Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, Sam Alito, and Brett Kavanaugh over Sonia Sotomayor, Stephen Breyer, and Elena Kagan, and wades into constitutional and historical waters rarely touched in U.S. jurisprudence.
At issue was the fact that the government of Maine has, since 1873, operated a tax-subsidized “near-voucher” system of tuition assistance for “qualifying” parents. Roberts’ majority decision offers an overview:
“Maine has enacted a program of tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition. Participating private schools must meet certain requirements to be eligible to receive tuition payments, including either accreditation from the New England Association of Schools and Colleges (NEASC) or approval from the Maine Department of Education. But they may otherwise differ from Maine public schools in various ways. Since 1981, however, Maine has limited tuition assistance payments to non-sectarian schools.”
The plaintiffs saw this as unfair, adds Roberts:
“Petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both BCS and Temple Academy are accredited by NEASC, the schools do not qualify as ‘nonsectarian’ and are thus ineligible to receive tuition payments under Maine’s tuition assistance program. Petitioners sued the commissioner of the Maine Department of Education, alleging that the ‘nonsectarian’ requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. The District Court rejected petitioners’ constitutional claims and granted judgment to the commissioner. The First Circuit affirmed.”
Roberts and the majority offered certiorari in reversal of the circuit court.
Of course, there’s more to this than the mere mechanics of the Maine issue being brought to the SCOTUS on appeal and the majority making a ruling one way or another. The keys pertain to the First Amendment -- and they go deeper, to the contemporary misreading of the “Equal Protection Clause” of the Fourteenth Amendment, and the fundamentally unworkable nature of government-funded pedagogy itself.
To give us important context, we move to 1877, when James G. Blaine, a Maine congressman from 1863 to 1883 (who actually rose to the level of Speaker, became a Secretary of State under Presidents Garfield and Arthur, and tried to run for President in 1884) proposed a constitutional amendment to block federal funds going to religious schools. Blaine was a Presbyterian and this was a period in U.S. history when many politicians and members of the budding education bureaucracies around the U.S. searched for ways to separate Irish Catholic immigrants from their church-based schools.
Blaine’s nation-wide constitutional amendment failed, but it was adopted by state after state.
As Gary Rayno writes for NHInDepth, last year, New Hampshire politicians debated a bill that would have led to dropping the Blaine-style amendment NH added to the state constitution in the 19th Century. The new bill was called CACR3, and sponsored by state Rep Glenn Cordelli (R):
“‘Blaine is a relic of anti-religious bigotry,’ he (Cordelli) said, and ‘has no place in our constitution.’
He said Blaine was a Maine Senator who hoped to ride the anti-Catholic sentiment that was at the heart of the amendment, to the presidency but he was not successful.”
Indeed, as I’ve noted for MRCTV, education scholar and historian Samuel Blumenfeld noted in his book “Is Public Education Necessary?” that one of the earliest eras when American politicians moved to cripple private education and get kids into government schools came as Irish immigrants flocked to these shores in the late 1800s. The goal was to split the kids from Catholicism and make them, as many Fabian Socialists soon began reciting, “good supporters of the state.”
The Blaine concept was adopted in 38 states – and that includes Maine, which, as Roberts notes in his decision, adopted its own version of Blaine’s amendment concept much, much later, in 1981.
And the plaintiffs involved in yesterday’s “Carson” decision objected, citing the First Amendment and the “Equal Protection” clause of the Fourteenth.
“This case concerns two families that live in SAUs that neither maintain their own secondary schools nor contract with any nearby secondary school.”
Given that context, and citing the Maine Constitution’s requirement that the legislature “require... the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools,” Roberts and the majority viewed the state’s prohibition of parents using their tax-funded subsidy on religious schooling as an infringement of the First Amendment protection of religious liberty.
But there's a problem with that.
The First Amendment only applies to the federal government, prohibiting it from infringing on freedom of speech, religion, and free assembly. For many decades in U.S. history, states actually ran numerous religious schools, and, as we can see, it was not even until 1981 that Maine ended the practice of offering tax cash to a system that might see the money spent to religious schools.
As I have noted for MRCTV, many collectivist jurists claim that the “Incorporation Doctrine” -- a legal practice adopted by many judges after the Civil War – saw the First Amendment “folded into” state constitutions, thus, as they argue, preventing them from making these sectarian vs non-sectarian distinctions and engaging in other activities bearing on speech and religion.
As much as freedom advocates like me might wish that were the case, it is false, and even if it were true, the First Amendment specifically cites only CONGRESS in its prohibition against the establishment of religion or speech codes. If states had “incorporated” the First Amendment into their constitutions, they would have incorporated a provision that, of course, specifies only the U.S. Congress.
Which is why the state of Maine continued to offer the funds to parents between 1873 and 1981.
As much as conservative Americans might like it, the First Amendment argument on which Roberts and the majority stand is unsound, both historically and constitutionally. And the argument that these parents are not being protected equally under the Fourteenth Amendment is absurd, prima facie.
A handout of tax cash is not “protection.” It’s treatment, and the manner in which even “conservative” Justices repeatedly misread this clause tells us a great deal about how vast numbers of Americans misunderstand the role the Founders believed government was supposed to play in our lives.
The provision of education is not protection. It is a handout - a handout that is, by its nature, politicized and draws people into the Tragedy of the Commons, where almost everyone is forced to pay, but not everyone can see the publicly-run “resource” directed towards the goals he or she desires.
This causes dissent, arguing, and a lot of damaged lives.
The only way to change this problem is to stop looking to the courts or even the U.S. Constitution for some magic answer. That continues the cycle of political fighting over not just the poorly-run government education system, but over “interpretive” courts, themselves.
The answer is to remove as many aspects of life as possible from the influence of government – period.
The Roberts-penned decision in “Carson” might appear to be a victory, but it repeats numerous grievous errors in jurisprudential history, misinterprets the history of US education, and overlooks the strict wording of the US Constitution, even as it perpetuates the problems created by government-ties to education