This week Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic filed an amicus brief on behalf of the National Council of Young Israel and the Notre Dame Education Law Project in support of a religious school’s freedom to educate in accordance with its faith. The brief urges the U.S. Court of Appeals for the First Circuit to uphold principles laid out by the Supreme Court in Carson v. Makin to protect the freedom of religious schools of all faiths to participate in Maine’s private school tuition-assistance program.

Maine’s town tuitioning program provides money for families in rural areas of the State to pay tuition at the public or private school of their choice. For years, families could choose to use that money to send their children to private religious schools. But in 1981, Maine blocked religious schools from participating in the program. In 2022, the Supreme Court struck down Maine’s discriminatory exclusion in Carson v. Makin, explaining that “a State need not subsidize private education, but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Following the Supreme Court’s decision in Carson, Maine rewrote its laws to impose new conditions that severely restrict religious schools’ ability to take part in the tuition-assistance program. Now, though religious schools can nominally partake in the program, in order to do so, they must forfeit the ability to make many central educational choices on the basis of their beliefs: They may not exercise religious preferences in admissions, may not hire on the basis of religion, and may not restrict what religious views are expressed in the classroom.

St. Dominic Academy, a Catholic school in Maine, filed suit in federal court arguing that these restrictions effectively prevent schools from offering a religious education if they wish to participate in the tuition-assistance program.

The Clinic’s brief argues in support of St. Dominic Academy. The brief explains that Maine’s latest law accomplishes the same result that was struck down in Carson: the exclusion of schools from the program simply because they offer a genuinely faith-based education. By preventing schools from integrating their religious mission into their educational design, Maine’s restrictions are irreconcilable with the core purpose of religious education, as demonstrated across a variety of faiths.

“The lesson of Carson is not complicated,” said John Meiser, Associate Clinical Professor and Director of the Lindsay and Matt Moroun Religious Liberty Clinic. “Maine cannot offer tuition assistance for children attending private schools of their choice, but then rescind that offer from any child who wishes to enroll in a school that is religious.”

The National Council of Young Israel and Notre Dame’s Education Law Project took an interest in the case, given its potential to undermine the critical holding of Carson and, in the process, stifle educational opportunity, religious liberty, and the ability of religious educators to serve their communities.

Nicole Garnett, John P. Murphy Foundation Professor of Law and Director of the Notre Dame Education Law Project, said, “The Free Exercise Clause protects the right of religious schools to participate in private-school choice programs, full stop. The First Circuit should make clear that Maine cannot accomplish indirectly what the Supreme Court told it to stop doing, which is to exclude religious schools from the tuition assistance program if they remain true to their religious mission and identity.”

Adam Cohen, Public Advocacy Chair of the National Council of Young Israel, added, “Maine’s statutory amendments disfavor religious private schools as compared to non-religious private schools, which unconstitutionally coerces citizens of Maine into ceasing to practice their religion or face a significant financial consequence. The National Council of Young Israel stands for the right of Americans to practice their religion free of government coercion, and we filed this brief to protect that right.”

Religious Liberty Clinic Students Simon Brake, Veronica Maska, Annie Ortega, and Sean Tehan assisted with the brief.

“This case should make clear to Maine that the Supreme Court's ruling in Carson means what it says. Our Constitution prohibits religious discrimination, no matter how clever the means,” said Tehan, a third-year law student.

“Maine’s failure to adhere to the Supreme Court’s guidance severely undermines the autonomy of religious educators to do what is essential across religions–to integrate faith and teaching,” added Ortega, a third-year law student.

Notre Dame’s Religious Liberty Clinic has long supported this effort to ensure that children who attend religious schools in Maine have an equal opportunity to participate in the State’s tuition-assistance program. Read more about our work in support of these rights in Carson v. Makin here.

About the Lindsay and Matt Moroun Religious Liberty Clinic

The Lindsay and Matt Moroun Religious Liberty Clinic is a teaching law practice that educates, forms and prepares Notre Dame law students to become the rising generation of religious liberty leaders by training students in the practice of the law as they defend religious freedom for all people.

Under the guidance of law school faculty and staff, students work on a broad variety of legal matters to promote religious freedom on behalf of individuals and organizations of all beliefs—both domestically and abroad. The clinic represents clients from all faith traditions to promote not only the freedom for people to hold religious beliefs but also their fundamental right to express those beliefs and to live according to them. Learn more about the work of the Clinic here.

Originally published by Notre Dame Law School at religiousliberty.nd.edu on October 18, 2024.