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Supreme Court rules Maine tuition assistance program must cover religious schools


The Supreme Court is out with a ruling this morning on taxpayer money and religious schools. It ruled 6 to 3 that if a state uses taxpayer money to pay for students attending nonreligious private schools, it must also use taxpayer funds to pay for attendance at religious schools. For all practical purposes, the decision invalidates provisions in 37 state constitutions that ban the direct or indirect use of taxpayer money in religious schools. Joining us now is NPR's legal affairs correspondent Nina Totenberg. Hi, Nina.


FADEL: So what is the background of this case?

TOTENBERG: This is a case from Maine, which is the most rural state in the country, and it has - about half the school districts in the state - they're called unitary districts - don't have enough money to have public high schools. So they either send the kids to a nearby high school and contract with that public high school, or they pay the tuition at a private nonsectarian school. This case was brought by people who wanted the state to fund their children's tuition at a religious school. And the lower court said, no, you can't do that. And the Supreme Court said, oh, yes, you can, basically.


TOTENBERG: Writing for the court's conservative majority, Chief Justice John Roberts said that Maine's decision to exclude religious schools from its tuition assistance program promotes, quote, "stricter separation of church and state than the federal constitution requires." Maine's program is not what it claims, he says. It is not neutral because it, quote, "discriminates against religion."

FADEL: Now, this was 6 to 3 along ideological lines. What did the dissenters say?

TOTENBERG: Well, Justice Breyer wrote the principal dissent, and then Justice Sotomayor added because she said she couldn't sort of believe her eyes in the last few years. This court continues to dismantle the wall of separation between church and state that the framers sought to build, she said. The consequences of the court's rapid transformation of the religion clauses must not be understated.

FADEL: So real concern about the separation...


FADEL: ...Of church and state there. What does the court's decision actually do?

TOTENBERG: Well, theoretically, it greatly expands state aid to religious schools or has the potential to do that. For decades, the court deferred to state constitutions, and those constitutions in the majority of states said you can't have aid to religious schools, and the court's own doctrine suggested that. But in recent years, conservative court majorities have upheld state voucher programs for religious schools and other programs that use tax benefits and other mechanisms to facilitate attendance at religious schools. In the Maine case, the court majority has gone much further, declaring that when a state provides benefits to a nonreligious private school, it has to provide the same benefits to a religious school.

FADEL: So what does that do in Maine, then, and elsewhere?

TOTENBERG: Well, I imagine it's going to be quite a mess in Maine. It won't happen right away 'cause the Legislature isn't even in session until September. The only - this decision actually affects Maine and Vermont, the only two states that have programs like this. But in Maine, the state could - has various options. It could pay only public school tuition, only contract with public schools. It's possible that the large private school academies - there are 11 of them, and most of them have been around for generations and generations - they could, I suppose, become charter schools.

FADEL: NPR's Nina Totenberg. Thank you so much.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.