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Carson v. Makin: ACLJ Files Major Amicus Brief in Supreme Court School Choice Case


Walter M. Weber

September 13, 2021

4 min read

School Choice



We were delighted to learn on July 2, 2021, that the U.S. Supreme Court had agreed to review another school choice case, Carson v. Makin, involving Maine’s school choice program. And we just filed an amicus (friend-of-the-court) brief in the case to defend the religious liberty of parents, students, and Christian schools being discriminated against.

What’s the case about? Its central question is whether Maine can set up a school choice program that includes private schools, but then single out for exclusion any school that “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith” – in other words, exclude religious schools. The state currently forbids parents from choosing to use the funds available to them to send their kids to a Christian or other religious school.

As we explained previously:

In Maine, the majority of school districts do not have a public high school. Instead, the state extends tuition assistance to parents to send their children to the high school of their choice, whether local or distant, in-state or out, and even if the high school is in a foreign country. Very inclusive, right? Except the state won’t allow tuition assistance to attend “sectarian” schools. . . . [Y]ou can pick a school that has any perspective or philosophy you like – except a religious one.

Maine parents challenged the discriminatory exclusion in federal court, but the federal district court and the court of appeals both ruled against them. The parents then asked the Supreme Court to hear the case. We had filed a friend-of-the-court brief supporting the parents in the federal court of appeals. We filed again when the parents sought Supreme Court review at the “petition stage,” urging the high Court to take the case. And on the last day before the Court recessed for the summer, the Supreme Court announced that it had granted the parents’ petition for review. We’ve written about the case in previous articles (here, here, and here) and will surely be doing so again.

Our newest brief in the case makes two points. First, Maine’s selective disallowance of “sectarian,” or religious, schools from the parents’ menu of private and public options for their children is blatantly unconstitutional: “a government’s posting of a ‘no religious choices or entities allowed’ sign, whether literal or figurative, runs afoul of both the Equal Protection Clause and the religion and speech clauses of the First Amendment.”

Second, the Supreme Court should overrule the 2004 case of Locke v. Davey. That was an ACLJ case which the Supreme Court got wrong. We represented Joshua Davey, a talented young man who won a state scholarship – the Promise Scholarship – but then had the state yank the scholarship away when he declared that he would major in theology. The Supreme Court ruled against Davey, pointing to the historic tradition of governments not funding clergy training. But that rationale made no sense. The founding era clergy-funding bills were aimed at subsidizing ministers in particular. Davey was not asking for a special grant for ministers; he only wanted the same support that any other Promise Scholar would receive.

Moreover, the Promise Scholarship only applied to the first two years of college – when students do not even have to declare a major! So Joshua was penalized for candidly announcing his plans, when he did not even have to do so. (And in fact, Joshua subsequently changed his plans, did not become a minister, went to Harvard Law School, and is now a partner at a prestigious law firm.)

But the problem with Locke v. Davey is not just that the Court ruled the wrong way, as bad as that was. On top of that, lower courts have repeatedly invoked Locke v. Davey as an excuse to reject school choice claims – including in Carson v. Makin. We therefore conclude:

The Locke Court should have struck down the restrictions at issue as an irrational penalty on free speech (declaring a major) and religious exercise (declaring one’s intent to pursue a religious vocation) that fails even minimal scrutiny. . . . What is needed to restore coherence and integrity to the law is this Court’s recognition that Locke was a mistake, ill-conceived on both its facts and its reasoning, a decision that merits express renunciation. The sooner this Court takes that step, the better.

The Supreme Court is likely to hear the Carson case sometime in the fall or winter and issue a ruling in the first half of 2022.

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