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Carson v. Makin (U.S.)

Carson v. Makin

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.

Several families sued, alleging that Maine’s exclusion of “sectarian” schools violated the First Amendment. The lower courts rejected their challenge. In the First Circuit’s view, the exclusion was permissible because Maine discriminated on the basis of religious use, not religious status. The families petitioned the U.S. Supreme Court for review.

Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic filed amicus briefs in support of the petitioners on behalf of organizations that operate, represent, and support elementary and secondary schools in a variety of faith traditions: Partnership for Inner-City Education, Council of Islamic Schools in North America, Union of Orthodox Jewish Congregations of America, and National Council of Young Israel. The briefs made clear that the First Circuit’s reasoning distinguishing between religious “status” and religious “use” was unworkable. The lived realities of many faith groups demonstrate that to be religious is to act on religious beliefs.

In June 2022, the Supreme Court struck down Maine’s discriminatory exclusion. The Court confirmed that the status-use distinction is artificial. Because providing a religiously integrated education “lie[s] at the very core of the mission of a private religious school,” any distinction between a school’s religious identity and how it teaches “lack[ed] [any] meaningful application.” Formulated either way, the exclusion is discrimination against religion that the Constitution prohibits.

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U.S. Supreme Court

Appellate Court (U.S. Court of Appeals for the First Circuit)

Trial Court (U.S. District Court for the District of Maine)

Media

Editorials and Essays

Events and Webinars

Professor Nicole Stelle Garnett spoke at the Manhattan Institute’s “Religious Schools and Choice After Carson v. Makin” (Dec. 2, 2021)

Professor Nicole Stelle Garnett spoke at the Federalist Society’s “December Docket in 90 Minutes or Less” (Nov. 22, 2021)

Professor Nicole Stelle Garnett spoke to ND Law’s Education Law Forum, “Supreme Court Preview: Carson v. Makin” (Nov. 8, 2021)