William R. Maurer: Why the Supreme Court stamping out discrimination against religious schools is good for Washington students

By William R. Maurer

The U.S. Supreme Court held last week that state governments may not discriminate against religious parents and schools when providing private school tuition assistance to families. There have been some claims that the decision undermines “separation of church and state” or even that it is the first step towards a theocratic society. These conclusions are off-base. What the decision actually does is give schoolchildren across the country – including here in Washington – the hope that one day they may be able to choose the education that is right for them, even when that education comes from a school that offers religious instruction.

First, some important background. The case, Carson v. Makin, dealt with Maine’s tuition assistance program for high school students. Maine is a lightly populated, rural state. For decades, the state permitted towns that were too small to support a public high school to pay for students to attend another nearby school, including private schools. Until a flawed legal opinion by the state’s attorney general in 1980, parents were free to exercise their independent choice to select private schools that also offered religious instruction.

The legal issue in Carson was whether Maine’s post-1980 exclusion of religious options violated the First Amendment of the U.S. Constitution. The government cannot promote religion, but it also cannot exclude people from benefits because of religion. Yet that is precisely what Maine did, and this kind of governmental discrimination against religious belief and activity is precisely what the First Amendment was intended to prohibit. And it is why the U.S Supreme Court sided with parents and struck down Maine’s restriction in a 6-3 decision.

The decision is important for Washington families – especially those of limited means – because Washington is one of 37 states that has a “Blaine Amendment” in its state constitution. Arising in the late 1800s, these provisions prohibit public funding for “sectarian” schools or educational institutions.

At the time, Blaine Amendments were not intended to prohibit religion in public schools, which almost universally used the Bible – the Protestant King James Version – in instruction. Instead, they were enacted to prohibit public funding of Catholic schools, which were often attended by the children of immigrants and whom the Blaine Amendment proponents wished to convert. In other words, these provisions were designed to promote one form of religious education and suppress another. Washington’s Constitution has two provisions prohibiting public support of sectarian education.

These provisions were the main obstacle to providing educational alternatives to the public schools in Washington State, as many private schools are religious. The Court’s decision in Carson effectively eliminates these barriers. If, as Chief Justice Roberts concluded for the majority, “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” then Washington’s bar on programs that would provide tuition support for families seeking an education at a religious school does as well.

What remains now is for policy makers in this state – either the Washington Legislature or the people through the initiative and referendum power–to provide these opportunities for children. As the recent pandemic demonstrated, the 19th Century public school model can be inflexible and slow to respond to the needs of parents and children. In too many parts of the state, it has also been unsuccessful in providing a meaningful education.

Washington has been a pioneer in many things – there is no reason it cannot be a pioneer in bringing a range of educational options for children and their families. Washington children should have a diverse educational options and, thanks to the Court’s decision in Carson, they are no longer barred from taking advantage of some of these options because of limitations rooted in bigotry, xenophobia and a desire for conformity.

William Maurer is the managing attorney for the Institute for Justice Washington Office.