Carson v. Makin: Big Victory for School Choice in Supreme Court Case


Walter M. Weber

June 23

5 min read

School Choice



Families won an important victory for school choice in the Supreme Court case of Carson v. Makin. In the 6-3 ruling, the Court held that “to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits” violates the federal constitutional right to the free exercise of religion. Let’s take a closer look.

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 filed a lawsuit in federal court challenging the discriminatory exclusion of “sectarian” schools. But both the federal district court and the court of appeals ruled against them. We had filed an amicus – friend-of-the-court – brief supporting the parents in their appeal. When the parents sought review in the U.S. Supreme Court, we filed in their support once more.

We were thrilled when the Supreme Court agreed to review Carson v. Makin and followed up by filing another amicus brief at the “merits” stage of the case.

The question before the high Court was whether Maine could set up a school choice program that categorically included private schools except when the school “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, no religious schools. Our amicus brief in Carson v. Makin made two points. First, Maine’s selective disallowance of “sectarian” 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, an ACLJ case which the Supreme Court got wrong and which has been used repeatedly by lower courts to reject school choice claims.

The Supreme Court heard oral argument in Carson on Dec. 8, 2021. We wrote about the oral argument here. On June 21, the Court released its decision. The majority opinion was penned by Chief Justice John Roberts. His opinion straightforwardly applies prior Court decisions condemning, as contrary to the Free Exercise Clause of the First Amendment, the discriminatory exclusion of otherwise eligible recipients from a government program simply on the basis of their religious identity.

The Chief Justice wrote:

[W]e have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.

. . .

[T]here is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.

Maine had defended its program by arguing that the “benefit” was a secular education and therefore disqualifying religious schools was not discrimination. The Supreme Court recognized this as an attempt to define away the constitutional violation:

Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But “the definition of a particular program can always be manipulated to subsume the challenged condition,” and to allow States to “recast a condition on funding” in this manner would be to see “the First Amendment . . . reduced to a simple semantic exercise.”

As for the Locke v. Davey decision that we sharply criticized in our amicus brief, the Court explained that “Locke can be of no help to Maine here.” Indeed, the Court expressly limited Locke’s applicability going forward: “Locke cannot be read beyond its narrow focus on vocational religious degrees.”

In other words, the Court has tightly cabined the Locke ruling to its own peculiar facts, which – we hope – will finally put a stop to lower courts invoking Locke as justification for rejecting school choice in future cases.

What does the decision in Carson v. Makin mean as a practical matter? Whenever a government program, including education assistance, offers benefits to private entities (like families), it violates the Free Exercise Clause to disqualify otherwise eligible applicants just because they are religious. So if a school choice program lets you send your children to private schools, the program cannot exclude religious schools just because they are religious.

Our work in Carson v. Makin is part of the ACLJ’s strong commitment to school choice. We are pleased to see the Supreme Court once again firmly upholding the Free Exercise of Religion in the crucial educational context.