Supreme Court ruling on school choice could lift barriers in Maine, Michigan

As the political winds gather at parents’ backs, the nation’s highest court again weighs whether to fortify their right to choose a school. A legal victory there next year also could pave the way to knock down a few lingering barriers that limit parental choices in a few states.

The expansion of education opportunities in 2021 has been breathtaking. A record 18 states approved new or bigger choice programs, and frustrated parents recently fueled an upstart’s election victory in Virginia. Now another state has reached the spotlight, with a Supreme Court argument that could ensure millions of families avoid legal traps while choosing the best school for their child.

Maine is one of only two states with a town tuitioning program, which dates back nearly 150 years. Parents such as David and Amy Carson, who live in a rural district where the public school does not serve their child’s grade level, could have used a designated amount of state funding to pay their daughter’s tuition at a public or private school. (She has graduated and moved on to college since the case began.) For the past 40 years, the state has denied families the option of spending their state tuition dollars at a religiously based school.

Last summer the U.S. Supreme Court ruled that states offering families K-12 tuition aid “cannot disqualify some private schools solely because they are religious.” The decision was a victory for Kendra Espinoza, a single mother. Montana had denied her access to the benefits of a tax-credit scholarship program because she elected to enroll her daughters in a Christian school. 

The 2020 Espinoza ruling invalidated most states’ anti-aid provisions, which discriminated against schools because of their religious status. In other words, families cannot be stopped from using state scholarship funds at a school just because it’s affiliated with a church or creed. But officials in Maine split hairs to persist in their discrimination by forbidding parents from choosing a school that promotes religious teachings and using state dollars to pay their child’s tuition. In other words, the state denied an opportunity to the Carsons’ daughter because the family’s chosen school happened to take its faith commitment seriously.

“Religious schools teach religion,” Institute of Justice attorney Michael Bindas argued before the Supreme Court on the family’s behalf. “It is part of what they do. It is only because of religion that [certain schools] are excluded” from a family’s independent choice in the Maine program. 

A favorable ruling for the Carsons in 2022 appears likely, but it may not do much for families in Michigan, one of the few states not directly affected by the Espinoza ruling. Our state’s anti-aid amendment is of a newer vintage than others’, carefully worded to take a neutral tone toward religion, whether considering a school’s status or specifically how funds could be used. 

While the finer legalities differ, Michigan’s amendment hinders families in much the same way as Maine officials discriminated against the Carsons. Like many couples, George and Michelle Lupanoff of Grand Rapids, Mich., exercised school choice by moving into their desired district and assuming the responsibilities of a home mortgage. In recent years, though, their twin daughters experienced a disagreeable turn in the campus environment and in classroom texts and curriculum. They scrounged and saved money to send the girls to a private Christian education as they prepared to move into high school. 

A case brought by the Mackinac Center Legal Foundation on behalf of the Lupanoffs and four other families contends that Michigan’s 50-year-old amendment not only was birthed in anti-religious bigotry, but it unfairly limits their choices today. Recent federal tax reform opened the door for Michigan families to earn a state tax benefit by using their 529 college savings plan to pay for K-12 tuition. 

But the state’s restrictive anti-aid amendment stands squarely in the way. Under it, the Lupanoffs can use 529 funds to pay nearly $11,000 a year to enroll their children in the neighboring East Grand Rapids school district, if they chose. But there’s no way to get the same tax benefit from using the plan to pay for their daughters’ tuition at NorthPointe Christian. Not unless the Supreme Court weighs in to set things right.

As educational and religious freedom marches steadily onward, the heart of the Great Lakes remains its next frontier. A victory in the Carson case should only brighten the hopes of Michigan families.

Ben DeGrow is director of education policy for the Mackinac Center for Public Policy in Midland, Mich. Follow him on Twitter @bendegrow.