Press Release


Defense of Freedom Institute Joins Fight for Education Freedom in Landmark Supreme Court Case

Brief in Carson v Makin led by noted lawyer David Boies, supported by two-time Republican Attorney General William Barr

Washington, D.C.—The Defense of Freedom Institute for Policy Studies (DFI) joined the fight for education and religious freedom today as the Supreme Court of the United States considers a landmark case out of Maine with far-reaching implications for students and families across the country.  In Carson v. Makin, the Court will consider whether a state violates the Federal Constitution when it prohibits students participating in an otherwise generally available school choice program from using their aid to attend religious schools.

Maine provides private school tuition for students in school districts without secondary schools. After decades of including “sectarian” schools in the program, the state now excludes those schools, thus forcing families who wish to send their children to a religious school to choose between their First Amendment right to the free exercise of religion and their right to an otherwise available public benefit.

Maine created this dilemma for families in the face of the Supreme Court’s ruling last year in Espinoza v. Montana that a state cannot discriminate based on religion in its K-12 scholarship program.  When two families from Maine decided to fight Maine’s law in court, a trial court upheld the exclusion, and the First Circuit court of appeals agreed, reasoning that Maine excludes schools based not on their religious “status” but on the religious “use” of the aid provided by the tuition assistance law and creating a “use/status dichotomy” that cannot stand.

“The Free Exercise Clause of the First Amendment prohibits the Government from imposing religious-based restrictions on the personal decisions of individual citizens,” said David Boies who filed the amicus brief with the Court on behalf of DFI.  “Here, the State attempts to use religious criteria to decree to which secondary school parents may send their children simply because the parents receive generally available tuition assistance. This law strikes at the heart of, and is clearly prohibited by, the Free Exercise Clause. The Government can’t tell people they can’t use government loans to attend Notre Dame, or use food stamps at a supermarket run by a mosque, or use their child tax credit to prepare for a bar mitzvah—and it can’t tell secondary school parents they can’t use their tuition assistance at a faith-basedschool.”

Former U.S. Attorney General William Barr added, “Maine’s law is the reflection of the relentless campaign of secularization intent on driving every vestige of traditional religion from the public square.  Maine has no objection with providing funds to students to attend private schools that aggressively instruct children about behaviors that reflect the progressive values and practices of contemporary America.  Yet, in alarming contrast, Maine’s law targets and excludes those schools that instruct students on the religious practices commanded by their faith, forcing families to choose between abandoning their religious convictions and foregoing needed public assistance to which they are otherwise entitled by law.  This is an unacceptable violation of the First Amendment and religious discrimination of the worst kind.”

In the amicus brief filed today, Boies makes four primary arguments against this “use/status” dichotomy.  First, the contrived distinction between religious use and status would sap all meaning from the right of free exercise of religion guaranteed by the First Amendment; it would stand in sharp contrast to the well-established principle that substituting use as a proxy for status does not rationalize a discriminatory regime.  Second, the use/status dichotomy would place courts in the troubling position of investigating how religious persons respond to the dictates of their faith and require courts to interpret scripture.  Third, the use/status dichotomy would enshrine denominational discrimination into law in violation of the Free Exercise Clause of the First Amendment.  Fourth, adoption of the use/status dichotomy would threaten institutions with religious institutional missions by excluding them from education programs, despite their long history of participation. The brief notes several examples of this history, including the use of the Pell Grant and Direct Loan programs by students attending institutions with religious missions.    

The Institute for Justice and the First Liberty Institute filed the challenge to Maine’s tuition assistance program “sectarian” school exclusion on behalf of the two families from Maine who decided to fight the law—the Nelsons and the Carsons.

“Maine’s law is a danger to both families of faith and any educational institution with a religious mission,” said DFI President Bob Eitel. “Adoption of Maine’s argument would no doubt accelerate efforts to exclude faith-based institutions and their students from participating in government programs in which they currently participate.  The Little Sisters of the Poor and Religious Sisters of Mercy and their affiliated healthcare institutions would tell you that is exactly what is happening in healthcare right now.”

Should the Supreme Court decide in favor of the families in this case, it would mark the latest in a string of Supreme Court victories expanding education freedom, starting with Zelman v Simmons-Harris, which held that Ohio’s Pilot Project Scholarship Program could continue to provide tuition aid to families whose children attend both religious and nonreligious schools, and continuing through last year, when the Supreme Court ruled in Espinoza v Montana that state K-12 scholarship programs may not discriminate against private religious schools.

“There is simply no place for discrimination in our nation’s schools,” said former U.S. Secretary of Education Betsy DeVos. “Sadly, religious discrimination has been tolerated for too long, not only through prohibitions on religious schools like the Maine law but also through other needless restrictions on students like bigoted Blaine Amendments.  I’m hopeful the Court will continue its strong track record of defending our First Amendment rights.  Students need the freedom to learn in the ways and places that work best for them and their families, without being forced to check their faith at the schoolhouse door.”

To view DFI’s amicus brief in full, click here

About DFI
The Defense of Freedom Institute for Policy Studies is a nonprofit, nonpartisan organization dedicated to defending and advancing freedom and opportunity for every American family, student, entrepreneur, and worker and to protecting civil and constitutional rights at schools and in the workplace. As part of its education and workforce preparation agenda, DFI promotes policies favoring school freedom and educational choice, including those that protect faith-based institutions against efforts to force changes in their policies and activities that conflict with their religious missions.