Court of Appeals Thumbs its Nose at the Supreme Court in Critical Case Involving Discrimination Against Christian Schools


Laura Hernandez

December 3, 2020

3 min read

School Choice



In a startling decision in Carson v. Makin, the Court of Appeals for the First Circuit upheld the state of Maine’s discrimination against Christian schools. As we reported here, the ACLJ filed an amicus brief with the First Circuit.  What made the First Circuit’s decision so surprising was that the court essentially disregarded two controlling decisions from the United States Supreme Court – one that was issued just this past term. Those cases should have spelled the end of Maine’s discriminatory program, but the First Circuit instead advanced feeble reasons for thumbing its nose at the high Court.

By way of background, there are not enough public secondary schools in Maine, especially in rural areas. The state therefore has a program called the “town tuitioning system.”  The way it works is that state funds are used to pay tuition for students at the private school of their choice – that is unless the school is religious. A Maine statute provides that state tuition funds are not available for “sectarian schools.”

Sixteen years ago, the First Circuit Court of Appeals had upheld that same statute against a Free Exercise Clause challenge even though the Free Exercise Clause had been understood to prohibit discrimination on the basis of religious status in the distribution of public benefits. For example, a state cannot allow public school students free admission to public museums but charge Christian school students who want to visit the same museum.

Since the First Circuit’s earlier decision, the Supreme Court of the United States has further reaffirmed that non-discrimination principle in two separate cases. In the first case, Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), the Court held that a church daycare center could not be excluded from a state grant program providing playground surfacing materials.

Then just this past summer, in Espinoza v. Montana Department of Revenue, the Supreme Court reversed a Montana Supreme Court decision striking down a statewide tuition program that permitted families to choose religious schools. The Supreme Court rejected arguments strikingly similar to those advanced by the state of Maine in Carson. The Court explained that “excluding sectarian schools from receiving funding traced back to anti-Catholic sentiment in the 1800s and such exclusion should not occur once a state has decided it will subsidize private education.”  States “need not subsidize private education . . . but once [they] decide to do so, [they] cannot disqualify some private schools solely because they are religious.”

The First Circuit quite unconvincingly attempted to explain why Espinoza did not govern the case. The court reasoned that the state was not really subsidizing all private education, it was merely subsidizing secular private schools that provide education more or less equivalent to the education provided by the state’s public high schools. Since religious schools don’t provide secular education, the court concluded that the discriminatory program was justified.

As you might expect, the case is being appealed to the Supreme Court.  With your support, we will file another amicus brief urging the Supreme Court to hear the case.