Religious Schools And The First Amendment… Is There A Difference Between “Status” And “Use”?

By DEACON MIKE MANNO

There is an interesting school choice case from Maine that is sitting at the door of the Supreme Court on appeal from the First Circuit Court of Appeals that could settle a legally thorny problem if the court decides to accept it.
The state of Maine has a law that allows local school districts to pay the tuition for students to attend either private or public secondary schools where the district does not have a public high school. Thus the local districts have the option of providing the school or simply paying the tuition for its students to attend another school of choice.
Those other schools of choice can be outside the state.
Unfortunately, that choice appears to be limited by courts making the distinction between religious status and religious use. In short that means participating schools can be religious in name, but if they do religious things they do not qualify.
Three families in Maine, all living in districts that chose to provide the tuition option for its students, were denied tuition for their schools of choice due to the “status vs. use” distinction. Their legal challenges were denied by state and federal courts; thus the appeal to the Supreme Court.
The families are being represented by the First Liberty Institute and the Institute for Justice, who, in a press release, stated: “Maine’s law blatantly discriminates against parents based on religion, providing some families with tuition support for the school of their choice but denying that same support to other families. The families who filed the lawsuit qualify for Maine’s tuitioning program in all other respects, but they are excluded from participating only because they chose religious schools for their children. Such discrimination is both unfair and unconstitutional.”
This all comes on the heels of two recent Supreme Court cases, which we’ve discussed here earlier. Last July in Espinoza v. Montana the court invalidated a state law that prohibited a tax credit fund to be used to pay tuition to religious schools. And Trinity Lutheran v. Comer, when the court struck down a Missouri law that prohibited religious schools from taking part in a grant program, which in that case was used to improve its playground.
In Espinoza, Chief Justice John Roberts wrote for the majority:
“The prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The 5-4 ruling was hailed by many as a near death knell for the so-called Little Blaine Amendments which prohibited any state financial assistance to parochial schools.
However, the First Circuit didn’t see Espinoza as clear-cut as the current plaintiffs did. It held that Maine’s sectarian exclusion was permissible since eligibility for the program was not determined by the religious status of the school but “on what the school teaches through its curriculum and related activities, and how the material is presented.”
Thus the tuition assistance was not available for a student to attend a school that “in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”
In their petition for Supreme Court review, the families argue against the appeals court ruling: “In so holding, the First Circuit exacerbated a longstanding split of authority on whether government may bar families participating in student-aid programs from choosing to use their benefits to attend schools that provide religious instruction.”
It continued: “Whether there is a constitutionally significant difference between discrimination based on ‘religious status’ and discrimination based on ‘religious use’ is a profoundly important question, especially in the context of student-aid programs — programs that operate on the private choice of individuals. In such programs, any religious use of a benefit is reasonably attributable to the individual recipient, not to the government.
“By allowing such discrimination, the decision below resuscitates the long discarded ‘pervasively sectarian’ doctrine: the doctrine that although nominally religious schools can participate in public benefit programs, pervasively religious schools — those that actually do religious things — cannot.”
Petitioner’s certiorari petition, while noting that there is a split on the circuits over the issue, also tried to point out how the issue creates a distinction without a real difference and wrote, “Cardigan Mountain School — a private school in New Hampshire that purports to teach ‘universal . . . spiritual values,’ both ‘in and out of the classroom’ and at its ‘required . . . weekly Chapel meetings’ — was approved by Maine to participate in the program.”
Emphasizing the difficulty making the status vs. use distinction, the petitioners argued: “Although Espinoza differentiated between religious ‘status’ and religious ‘use’ in student-aid programs, the Court ‘acknowledge[d]’ that some of its members ‘have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. But the Court concluded that it did not need to resolve that question in Espinoza, given that the discrimination at issue in the case turned on religious status alone.
“Consequently, Espinoza only partially resolved the split of authority that had prompted the Court to grant certiorari in the first place….Such a state of affairs — in which a state cannot deny a benefit to a student because she wishes to attend a school that is religious, but can deny it because the school does religious things — is unstable and untenable.”
The argument went on: “Status and use, in short, are not binary concepts — they are often inseparable. Yet so long as states may continue to define religious exclusions as ‘use-based’ and thereby escape meaningful constitutional scrutiny, families who believe that a religious education is the best option for their child will continue to be shut out of student-aid programs.”
The argument sounds persuasive in isolation, but there is a contrary Supreme Court precedent, Locke v. Davey, a 2004 case in which the court upheld a publicly funded scholarship program in Washington which excludes those seeking a degree in devotional theology. How the constitutionality of that case might affect the Maine case is yet to be seen, but you can be sure that the supporters of the current application of the Maine law will be adept at arguing that its opinion is at least persuasively controlling, especially on the issue of status vs. use.
Obviously this is another important school choice case for those seeking parity for religious and secular schools, especially in today’s environment which finds those schools the only ones completely open. One thing is for sure, if the court does take the case it will resolve some of the issues that have caused controversy in the past.
But don’t be in too much of a hurry. As I’ve cautioned before, this case has only just been appealed to the Supreme Court, the court has not yet decided whether it will hear it or not. Parties on each side have time to weigh in on what the court should do. If the court does take the case, then the argument turns from the question of whether the court should hear the case to how the court should rule. The result: more briefs from the parties and amici.
Lea Patterson, an attorney with First Liberty, who worked both this case and the Espinoza case, appeared on my radio program last month and opined that it may be until summer that a decision on whether to take the case would be made. If accepted there is no guarantee that it will be argued immediately. Thus we’re probably waiting for a final decision until at least 2022. So again we wait.
There’s a lot of that built into what we do. I know, it’s frustrating, especially for people interested in school choice at a time when many of our public schools are failing.
But that’s the system.
(You can reach Mike at: DeaconMike@q.com, and listen to him every Thursday at 10 a.m. CT on Faith On Trial on IowaCatholicRadio.com.)