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Of late, the U.S. Supreme Court has muddled rather than clarified how much government-sponsored religious discrimination the Constitution permits. For example, students receiving federal Pell grants have always been allowed to choose religious colleges like Notre Dame or Yeshiva University. But what if the government suddenly kicked students who chose such schools out of the program simply because of the schools’ religious affiliation? Would the Court consider that a legitimate exercise of discretion or unlawful religious discrimination? That precise question has arisen in a case involving the nation’s second-oldest school-choice program. This is Maine’s “tuitioning” system, where students in towns too small to operate their own schools receive scholarships to attend the public or private school of their choice. For more than a century, Maine allowed tuitioning students to choose from a full range of religious and nonreligious options, including even out-of-state boarding schools. But it threw religious schools out of the program in 1980, citing concerns about the First Amendment’s establishment clause. The Maine Supreme Court approved that decision earlier this year in Anderson v. Town of Durham. We filed a petition for certiorari with the Supreme Court last week. In it we ask the Court to decide whether the sudden exclusion of religious schools from Maine’s tuitioning program was a forbidden act of discrimination or merely a permissible example of “room for play in the joints,” in the words of Locke v. Davey (2004), between the Constitution’s establishment and free-exercise clauses. That question has dramatic implications for the nation’s burgeoning school-choice movement, which holds that all parents, not just wealthy ones, should enjoy a full range of choice among public, private, religious, and nonreligious schools. OBSTACLES TO CHOICE Opponents of school-choice programs — including vouchers in Maine, Ohio, Milwaukee, and elsewhere and tax-credit-funded scholarships in Florida, Arizona, Pennsylvania, and other states — typically challenge the programs in court. They argue that federal and state limitations on aid to religion make such programs unconstitutional if they include the independent choice of religious schools. Choice opponents lost the federal argument when the Supreme Court held in Zelman v. Simmons-Harris (2002) that including religious options in a voucher program does not violate the First Amendment’s establishment clause so long as the program is one of “true private choice.” Since then, opponents have gone local, trying to convince state legislatures and courts that state constitutions or state law requires voting down or striking down school-choice programs with religious options. If successful, that strategy could pay large dividends for them in stopping school choice, particularly in urban areas, where the need for choice is most urgent but where most of the private schools that could help deliver it are religious. EXCLUDING ASHLEY Jill and Lionel Guay live in Minot, Maine — a “tuitioning” town. At first they sent their daughter Ashley to a nearby public school, but it was a bad fit. Then they enrolled her in St. Dominic’s Regional High School, a Catholic school with an excellent academic reputation, and Ashley flourished. But that choice cost her family the tuitioning payments they would have received in a public school or a nonreligious private school. The Guays and seven other families sued the state of Maine for discriminating against them by withholding scholarship payments to which they were fully entitled — but for their choice of religious schools. Maine’s discriminatory tuitioning policy had already been challenged in parallel state and federal lawsuits during the 1990s, and the state’s sole defense was that it had to exclude religious schools to avoid violating the federal establishment clause. That misunderstanding was based on a flawed 1980 state attorney general opinion that mistakenly lumped together the scholarship-based tuitioning program with one where some towns contracted directly with private schools for educational services. Both the Maine Supreme Court and the U.S. Court of Appeals for the 1st Circuit accepted the state’s establishment clause argument and approved the exclusion of religious schools on that basis. But the Maine Supreme Court made clear that if the state was wrong about the federal Constitution, then there would be no legitimate reason for excluding religious schools from the tuitioning program: “The State offers only one justification for the statute — an effort to comply with the Establishment Clause. . . . If the State’s justification is based on an erroneous understanding of the Establishment Clause, its justification will not withstand any level of scrutiny” (emphasis added). FICTITIOUS JUSTIFICATIONS In Zelman v. Simmons-Harris, the Supreme Court made clear that Maine was wrong about the establishment clause. But instead of returning to its century-long, pre-1980 tradition of religious neutrality, Maine legislators dreamed up a new set of justifications to replace the now-debunked establishment clause rationale. Those justifications ranged from merely insincere to invidious. They included supposed concerns about excessive government “entanglement” with religion (something that had never occurred during the century of pre-1980 religious neutrality), concerns about the hiring policies of private religious schools (ditto), and maintaining “religious diversity” in public schools. Even less worthy justifications offered by some legislators included the cost savings in discriminating against religious options. The first question Anderson asks the Supreme Court is, When the government’s actual reason for treating people unequally is known, may it nevertheless seek to justify its conduct with more palatable — though entirely fictitious — justifications? That question highlights a significant fault line in the Supreme Court’s sadly misnamed “rational basis” test. According to the usual formulation of that test, the legislature’s true reasons for enacting a particular law are irrelevant “if there is any reasonably conceivable state of facts” — even purely hypothetical — “that could provide a rational basis for the classification,” in the words of FCC v. Beach Communications Inc. (1993). Yet the Supreme Court has also held in Weinberger v. Wiesenfeld (1975) that it “need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation.” In Anderson, there is no doubt why the Maine Legislature suddenly gave religious schools the bum’s rush in 1980: a mistaken belief that the federal establishment clause required it. Thus, if the Supreme Court meant what it said in Weinberger, requiring Maine to return to a policy of religious neutrality should be a slam-dunk. LOCKE‘S WAKE But Anderson presents a second, more fundamental question — that is, whether states may exclude religious options from an otherwise neutral scholarship program. Some believe the Supreme Court said yes in Locke, a case that upheld the exclusion of “devotional theology” majors from a state’s college-scholarship program. But those seeking greater educational opportunity read the case more narrowly. Anderson marks the first opportunity for the opposing camps to square off in the Supreme Court. Key to the Court’s consideration should be the fact that K-12 school-choice programs, such as Maine’s, are distinct from the college-scholarship program in Locke in at least two significant ways: (1) They have nothing to do with the religious training of clergy, and (2) under Maine’s law and the broad ban urged by school-choice opponents, the programs would completely exclude religion from their benefits. By contrast, the Supreme Court in Locke repeatedly emphasized not only the nation’s historical aversion to paying for theological training but also that the scholarship program went “a long way toward including religion in its benefits,” even allowing students to attend “pervasively sectarian” schools as long as they did not major in devotional theology. Thus, it appears that the program’s broad inclusion of religious options was important to the Court in upholding the program’s constitutionality. Unfortunately, two courts, in addition to the Maine Supreme Court, have accepted the broader reading of Locke urged by school-choice opponents. One was a Florida appellate court that struck down the state’s pioneering voucher program for children stuck in failing public schools. In light of what’s at stake for equal educational opportunity, this issue cries out for resolution from the high court. DISCRIMINATION Anderson presents the Court with an opportunity to reject the outrageous canard that withholding scholarship money from otherwise eligible students attending religious schools is not discrimination but merely a decision not to fund a distinct category of instruction. To appreciate the moral and intellectual bankruptcy of that rationalization, consider how it would appear in other contexts. For example, substitute “feminist” or “Afrocentric” for “religious” educational programs. If Washington denied state scholarships to only women’s-studies majors, or if Maine excluded only high schools with an Afro-centric curriculum from scholarship programs, would anyone seriously argue that there was nothing discriminatory? Would people seriously contend that they instead represented merely an unobjectionable decision not to fund certain categories of instruction? Implicit in the arguments of school-choice opponents is that there is something unique about religion and religious people that permits the government to discriminate against them in a way that would be appalling with other constitutionally protected categories like gender or race. Anderson presents the Court with an opportunity to reject that shameful premise. That would mark a huge step forward for religious neutrality and, by removing the favored legal claim of school-choice opponents, for equal educational opportunity.
Clark Neily is a senior attorney at the Institute for Justice, which represents the plaintiffs in Anderson v. Town of Durham .

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