Amicus Curiae Brief — David Carson, as Parent and Next Friend of O. C., et al., Petitioners v. A. Pender Makin

No. 20-1088

In the

Supreme Court of the United States

DAVID CARSON, as Parent

and Next Friend of O.C., et al.,

Petitioners,

v.

A. PENDER MAKIN, IN HER OFFICIAL CAPACITY

as Commissioner of the Maine Department of

Education,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF THE NATIONAL SCHOOL BOARDS

ASSOCIATION, THE SCHOOL

SUPERINTENDENTS ASSOCIATION, THE

NATIONAL ASSOCIATION OF ELEMENTARY

SCHOOL PRINCIPALS, THE NATIONAL

ASSOCIATION OF SECONDARY SCHOOL

PRINCIPALS, AND THE COUNCIL OF

ADMINISTRATORS OF SPECIAL

EDUCATION, AS AMICI CURIAE IN SUPPORT

OF RESPONDENT

FRANCISCO M. NEGRÓN, JR.*

Counsel of Record

CHIEF LEGAL OFFICER

SONJA H. TRAINOR

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street, FL 2

Alexandria, VA 22314

fnegron@nsba.org

(703) 838-6722

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................3

ARGUMENT ...............................................................9

I.

States And Local School Districts May Design

Their Public Education Programs To Be

Inclusive And Religiously Neutral. ......................9

A. Longstanding Precedent Gives States

Authority to Offer Public Education

That is Not Only Religiously Neutral,

But Also Inclusive, Equitable, and

Reflective of Constitutional Norms. ............11

B. The State May Design the Contours of

its Public Education System Without

Implicating Free Exercise Rights. ...............18

II. A Decision Requiring Maine To Change Its

Public Education Program As Sought By

Petitioners Would Undermine Support Of

Public Education Throughout The Nation ........22

CONCLUSION ..........................................................26

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Abington Twp. v. Schempp,

374 U.S. 203 (1963) ................................................. 15

Alden v. Maine, 527 U.S. 706 (1999) ...................... 13

Atascadero State Hospital v. Scanlon,

473 U.S. 234 (1985) ................................................. 13

Blau v. Fort Thomas Pub. Sch. Dist.,

401 F.3d 381 (6th Cir. 2005) ................................... 21

Board of Educ. of Kiryas Joel v. Grumet,

512 U.S. 687 (1994) ................................................. 15

Board of Education v. Pico,

457 U.S. 853 (1982) ................................................. 20

Brown v. Board of Ed. of Topeka,

347 U.S. 483 (1954) ............................................. 3, 14

Bush v. Holmes,

919 So.2d 392 (Fla. 2006)..........................................7

Cain v. Horne,

202 P.3d 1178 (Ariz. 2009) ........................................7

Department of Commerce v. State of New York,

139 S.Ct. 2551 (2019) ................................................3

iii

Department of Homeland Security v. Regents

of the Univ. of Calif., 140 S. Ct. 1891 (2020) ............3

Edwards v. Aguillard, 482 U.S. 578 (1987) ..... 15, 20

Endrew F. ex rel. Joseph F. v. Douglas Cnty.

Sch. Dist. RE-1, 137 S. Ct. 988 (2017)......................3

Epperson v. Arkansas, 393 U.S. 97 (1968) ......... 4, 16

Espinoza v. Montana Department of Revenue,

140 S.Ct. 2246 (2020) ................ 3, 8, 9, 10, 15, 19, 23

Fry v. Napoleon Community Schs.,

137 S. Ct. 743 (2017) .................................................3

Fulton v. Philadelphia, 141 S.Ct. 1868 (2021) ....... 14

Harris v. McRae, 448 U.S. 297 (1980) .................... 20

Lee v. Weisman, 505 U.S. 577 (1992)................ 15, 16

Locke v. Davey, 540 U.S. 712 (2004) ............. 9, 14, 23

Louisiana Federation of Teachers v. State,

118 So.3d 1033 (La. 2017) .........................................7

Mahanoy Area School District v. B.L.,

141 S.Ct. 2038 (2021) ..................................................3

Milliken v. Bradley,

418 U.S. 717 (1974) ...............................................4, 20

iv

M.L. v. Smith, 867 F.3d 487 (4th Cir. 2017) .......... 17

New York v. United States,

505 U.S. 144 (1992) ................................................. 13

Plyler v Doe, 457 US 202 (1982) ...............................4

Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000) ................................................. 16

Sch. Dist. of Abington Township,

Pennsylvania v. Schempp,

374 U.S. 203 (1963) ................................................. 16

Shelby County v. Holder,

570 U.S. 529 (2013) ................................................. 13

Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S.Ct. 2012 (2017) .............. 8, 9, 23

U.S. v. Lopez, 514 US 549 (1995) .............................4

Wallace v. Jaffree, 472 U.S. 38 (1985) .................... 16

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ............................................. 8, 10

Zorach v. Clauson, 343 U.S. 306 (1952) ................. 17

v

STATUTES AND REGULATIONS

Title VI of the Civil Rights Act of 1964

42 U.S.C. § 2000e ......................................................7

Title IX of the Education Amendments of 1974

20 U.S.C. § 1681-§ 1688 ............................................7

Me. Rev. Stat. Ann. tit. 5 §§ 4572(1)(A)

and 4553(10)(G) ....................................................... 22

Me. Rev. Stat. Ann. tit. 5, §§ 4601-4602 (2021) .... 18

Me. Rev. Stat. Ann. tit. 20 §§ 2(1) and (2) .............. 21

Me. Rev. Stat. Ann. tit. 20 §§ 2(1) and (2) ............. 22

Maine P.L. 2021, ch. 366, sec. 19........................... 22

U.S. CONSTITUTION

US Const Am X ....................................................... 13

STATE CONSTITUTIONS

Ala. Const. art. XIV, § 256 ........................................4

Ala. Const. art. XIV, § 263 .................................. 6, 23

Alaska Const. art. VII, § 1 ........................................4

Ariz. Const. art. XI, § 1 .............................................4

Ark. Const. art. XIV, § 1 ...........................................4

Ark. Const. art. XIV, § 2 ..................................... 6, 23

Cal. Const. art. IX, §§ 1, 5 .........................................4

Cal. Const. art. IX, § 8 ........................................ 6, 23

Colo. Const. art. IX, § 2 .............................................4

vi

Colo. Const. art. IX, § 7 ....................................... 6, 23

Colo. Const. art. IX, § 8 ........................................... 18

Conn. Const. art. VIII, § 1 ........................................4

Del. Const. art. X, § 1 ................................................4

Del. Const. art. X, § 3 .......................................... 6, 23

Fla. Const. art. IX, § 1 ...............................................4

Ga. Const. art. VIII, § 1, ¶ I ......................................4

Ga. Const. art. VIII, § 5 ...................................... 6, 23

Haw. Const. art. X, § 1 .................................... 4, 6, 23

Idaho Const. art. IX, § 1 ............................................4

Ill. Const. art. X, § 1 ..................................................4

Ind. Const. art. VIII, § 1............................................4

Iowa Const. art. IX, 2nd, §§ 1, 3 ...............................4

Kan. Const. art. VI, §§ 1, 6 .......................................4

Ky. Const. § 183 ........................................................4

Ky. Const. § 189 .................................................. 6, 23

La. Const. art. VIII, §§ 1, 11 & 13 ............................4

Maine Const. art. VIII, Pt. 1, § 1 ..............................4

Md. Const. art. VIII, §§ 1, 3 ......................................4

Mass. Const. Pt. 2, Ch. 5, § 2 ....................................4

Mass. Const. Amend. art. XVIII ......................... 6, 23

Mich. Const. art. I, § 4 ........................................ 6, 23

Mich. Const. art. VIII, §§ 1 .......................................4

Mich. Const. art. VIII, § 2 ......................... 4, 6, 17, 23

Minn. Const. art. XIII, § 1 ........................................4

Minn. Const. art. XIII, § 2 .................................. 6, 23

Miss. Const. art. 8, §§ 201, 206 & 206A ...................4

Miss. Const. art. 8, § 208 .................................... 6, 23

Mo. Const. art. IX, §§ 1(a), 3(a) & 3(b) .....................4

Mo. Const. art. IX, § 8 ........................................ 6, 23

vii

Mont. Const. art. V § 11(5) ................................. 6, 23

Mont. Const. art. X, § 1 .............................................4

Mont. Const. art. X, § 6 ....................................... 6, 23

Neb. Const. art. VII, § 1 ............................................4

Neb. Const. art. VII, § 11 .................................... 6, 23

Nev. Const. art. XI, §§ 1, 2 & 6 .................................4

N.C. Const. art. II, §§ 6, 7 .................................... 6,23

N.C. Const. art. IX, §§ 1, 2 ........................................4

N.D. Const. art. VIII, §§ 1–4 .....................................4

N.D. Const. art. VIII, §§ 1–4, Sec. 1 .........................5

N.H. Const. Pt. 2, art. 83 ................................ 5, 6, 23

N.J. Const. art. VIII, § 4, ¶¶ 1, 2 ..............................5

N.M. Const. art. XII, §§ 1, 4 ......................................5

N.M. Const. art. XII, § 3 ..................................... 6, 23

N.Y. Const. art. XI, § 1 ..............................................5

Ohio Const. art. VI, § 2 .............................................5

Ohio Const. art. VI, § 2, Sec. 2..................................5

Okla. Const. art. XIII, §§ 1, 1a .................................5

Or. Const. art. VIII, §§ 3, 4 & 8 ................................5

Pa. Const. art. III, § 14 .............................................5

R.I. Const. art. XII, § 1 ..............................................5

R.I. Const. art. XII, § 2 .................................... 5, 6, 23

R.I. Const. art. XII, § 4 ........................................ 6, 23

S.C. Const. art. XI, § 3 ..............................................5

S.C. Const. art. XI, § 4 ........................................ 6, 23

Tenn. Const. art. XI, § 12..........................................5

Texas Const. art. VII, §§ 1, 3 ....................................5

Texas Const. art. VII, § 5 ................................ 5, 6, 23

Utah Const. art. 10, §§ 1, 2 & 5 ................................5

Vt. Ch. II, § 68 ...........................................................5

viii

Va. Const. art. VIII, § 1, 2.........................................5

Va. Const. art. VIII, § 10..................................... 6, 23

Wash. Const. art. IX, § 1, 2 .......................................5

W.Va. Const. art. 12, §§ 1, 5 & 12 ............................5

Wis. Const. art. X, § 3 ...............................................5

Wyo. Const. art. 7, §§ 1 .............................................5

Wyo. Const. art. 7, § 8 ..................................... 5, 6, 23

Wyo. Const. art. 7, § 9 ...............................................5

OTHER AUTHORITIES

Advisory Commission on Intergovernmental

Relations, State Constitutions in the Federal

System: Selected Issues and Opportunities for

State Initiatives, (July 1989), available at

https://library.unt.edu/gpo/acir/Reports/policy/a113.pdf ............................................................... 13, 14

American Federation for Children Growth Fund,

2020 School Choice Guidebook an Annual Publication

(2020)

https://www.federationforchildren.org/wp-content

uploads/2020/11/Guidebook-20Nov13singles.pdf#

pdf#page=6 .............................................................. 23

Chicago Public Schools, CPS Stats and Facts,

https://cps.edu/About_CPS/At-a-glance/Pages/Stats_

and_facts.aspx ......................................................... 12

ix

Derek Black, Schoolhouse Burning: Public Education

and the Assault on American Democracy,

Public Affairs (2020) ............................................... 14

Derek Black, Preferencing Educational Choice,

103 Cornell Law Review 1353 (2018) ..................... 24

Florida Department of Education,

http://www.fldoe.org/core/fileparse.php/7507/urlt/

1718Profiles.pdf....................................................... 12

Illinois State Board of Education,

https://www.isbe.net/Documents/reorg_history

.pdf ........................................................................... 12

Kern Alexander & M. David Alexander,

American Public School Law (Wadsworth

Cengage Learning, 9th ed. 2019)............................ 11

Maryland Department of Education,

http://www.marylandpublicschools.org/about/Pages

/directory.aspx ........................................................ 12

Regional Office of Education #28, Ohio

Community High School District #505,

http://www.bhsroe.org/public-schools/ohio505/ ...... 12

Steven K. Green, The Insignificance of the

Blaine Amendment,

2008 B.Y.U. L. REV. 295 (2008) ............................. 11

1

INTEREST OF A MICI CURIAE 1

Amici curiae are organizations that represent

public educational leaders:

The National School Boards Association

(“NSBA”) is a federation of state associations and the

U.S. territory of the Virgin Islands. Through its

member state associations that represent locally

elected school board officials serving approximately

51 million public school students regardless of their

disability, ethnicity, socio-economic status or

citizenship, NSBA advocates for equity and excellence

in public education through school board leadership.

Through legal and legislative advocacy and public

awareness programs, NSBA strives to promote public

education, ensure equal educational access for all

children, and further its members’ interests in

effective school board governance.

AASA,

the

School

Superintendents

Association, founded in 1865, is the professional

organization for more than 13,000 educational

leaders in the United States. AASA’s mission is to

advocate for equitable access for all students to the

highest quality public education, and develops and

supports school system leaders. AASA members

range from chief executive officers, superintendents

and senior level school administrators to cabinet

members, professors and aspiring school system

leaders. As school system leaders, AASA members

1

No counsel for a party authored this brief in whole or in

part. No person or entity, other than amici, their members, or

their counsel, made a monetary contribution intended to fund

the preparation or submission of this brief. All parties have

consented to the filing of this brief.

2

help shape policy, oversee its implementation and

represent school districts to the public at large.

The National Association of Elementary

School Principals (“NAESP”) is the leading

advocate for elementary and middle-level principals

in the United States and worldwide. NAESP

advocates for sufficient and equitable funding for

public education, which is necessary to support an

educated, skilled workforce that can compete in a

global economy.

The National Association of Secondary

School Principals (“NASSP”) is the leading

organization of and voice for middle level principals,

high school principals, and other school leaders across

the United States. NASSP members believe that

public funding for private schools drains money away

from public schools; has not conclusively been proven

to result in increased student achievement; reduces

accountability in the education system; and

ultimately harms public schools, which the vast

majority of students attend.

The Council of Administrators of Special

Education (“CASE”), a division of the Council for

Exceptional Children, is an international nonprofit

professional organization providing leadership,

advocacy, and professional development to 5,000

administrators who work on behalf of students with

disabilities and their families in public and private

school systems and institutions of higher education.

CASE holds the longstanding position that public

funds should be used only for public education and

that public schools should be open and equal for all

children, regardless of status.

3

Amici share a commitment to supporting and

preserving free, equitable, well-funded public schools

in every state in the nation. For that reason, amici

are deeply concerned that a decision in favor of

Petitioners would weaken states’ and local school

districts’ authority to define the contours of public

education within their borders. They write to share

their perspective as representatives of school boards,

superintendents, principals, and special education

administrators, and to convey to this Court the

significant repercussions that may flow from a

decision in favor of petitioners.

All five organizations have frequently participated

as amici in other cases of this Court. See, e.g.,

Mahanoy Area School District v. B.L., 141 S.Ct. 2038

(2021), Espinoza v. Montana Department of Revenue,

140 S.Ct. 2246 (2020); Department of Homeland

Security v. Regents of the Univ. of Calif., 140 S. Ct.

1891 (2020); Department of Commerce v. State of New

York, 139 S.Ct. 2551 (2019); Fry v. Napoleon

Community Schs., 137 S. Ct. 743 (2017); and Endrew

F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1,

137 S. Ct. 988 (2017).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Public education is unlike any other function of

state and local government, and “perhaps the most

important ….” Brown v. Board of Ed. of Topeka, 347

U.S. 483, 493 (1954). Its importance arises from the

way in which public education is interwoven with the

operation of our system of representative

government.

That system, as theorized at the

nation’s founding, depends on the participation of an

informed and educated populace.

4

This Court has affirmed “the importance of

education in maintaining our basic institutions, and

the lasting impact of its deprivation on the life of the

child,” asserted that “education provides the basic

tools by which individuals might lead economically

productive lives to the benefit of us all,” and

recognized education’s “fundamental role in

maintaining the fabric of our society.” Plyler v Doe,

457 US 202, 221 (1982).

At the same time, it is well-established that public

education is a state and local responsibility. U.S. v.

Lopez, 514 US 549, 580-581 (1995) (“... it is well

established that education is a traditional concern of

the States.”) (citing Milliken v. Bradley, 418 U.S. 717,

741-742 (1974) and Epperson v. Arkansas, 393 U.S.

97 (1968)). States delegate responsibility for

operating public schools to local school boards, which

are accountable to their communities.

Every state in the nation has established public

education as a primary public priority.2 All require

2 All states provide for public education in their state

constitutions. Ala. Const. art. XIV, § 256; Alaska Const. art. VII,

§ 1; Ariz. Const. art. XI, § 1; Ark. Const. art. XIV, § 1; Cal. Const.

art. IX, §§ 1, 5; Colo. Const. art. IX, § 2; Conn. Const. art. VIII, §

1; Del. Const. art. X, § 1; Fla. Const. art. IX, § 1; Ga. Const. art.

VIII, § 1, ¶ I; Haw. Const. art. X, § 1; Idaho Const. art. IX, § 1;

Ill. Const. art. X, § 1; Ind. Const. art. VIII, § 1; Iowa Const. art.

IX, 2nd, §§ 1, 3; Kan. Const. art. VI, §§ 1, 6; Ky. Const. § 183; La.

Const. art. VIII, §§ 1, 11 & 13; Maine Const. art. VIII, Pt. 1, § 1;

Md. Const. art. VIII, §§ 1, 3; Mass. Const. Pt. 2, Ch. 5, § 2; Mich.

Const. art. 8, §§ 1, 2; Minn. Const. art. XIII, § 1; Miss. Const. art.

8, §§ 201, 206 & 206A; Mo. Const. art. IX, §§ 1(a), 3(a) & 3(b);

Mont. Const. art. X, § 1; Neb. Const. art. VII, § 1; Nev. Const.

art. XI, §§ 1, 2 & 6; N.C. Const. art. IX, §§ 1, 2; N.D. Const. art.

5

that public schools be open equally to all children of

appropriate age and residency. Many require that

public schools be free from sectarian control or

sectarian instruction. 3 And many require that public

VIII, §§ 1–4; N.H. Const. Pt. 2, art. 83; N.J. Const. art. VIII, § 4,

¶¶ 1, 2; N.M. Const. art. XII, §§ 1, 4; N.Y. Const. art. XI, § 1; Ohio

Const. art. VI, § 2; Okla. Const. art. XIII, §§ 1, 1a; Or. Const. art.

VIII, §§ 3, 4 & 8; Pa. Const. art. III, § 14; R.I. Const. art. XII, §§

1, 2; S.C. Const. art. XI, § 3; Tenn. Const. art. XI, § 12; Texas

Const. art. VII, §§ 1, 3 & 5; Utah Const. art. 10, §§ 1, 2 & 5; Vt.

Ch. II, § 68; Va. Const. art. VIII, § 1, 2; Wash. Const. art. IX, § 1,

2; W.Va. Const. art. 12, §§ 1, 5 & 12; Wis. Const. art. X, § 3; Wyo.

Const. art. 7, §§ 1, 8 & 9.

3 E.g., N.D. Const. art. VIII, §§ 1–4, Sec. 1:

A high degree of intelligence, patriotism, integrity and morality

on the part of every voter in a government by the people being

necessary in order to insure the continuance of that government

and the prosperity and happiness of the people, the legislative

assembly shall make provision for the establishment and

maintenance of a system of public schools which shall be open to

all children of the state of North Dakota and free from sectarian

control. This legislative requirement shall be irrevocable without

the consent of the United States and the people of North Dakota.

Ohio Const. art. VI, § 2, Sec. 2:

The general assembly shall make such provisions, by taxation,

or otherwise, as, with the income arising from the school trust

fund, will secure a thorough and efficient system of common

schools throughout the State; but, no religious or other sect, or

sects, shall ever have any exclusive right to, or control of, any

part of the school funds of this state.

Wis. Const. art. X, § 3:

The legislature shall provide by law for the establishment of

district schools, which shall be as nearly uniform as practicable;

and such schools shall be free and without charge for tuition to

all children between the ages of 4 and 20 years; and no sectarian

6

funds be dedicated to public schools, not redirected to

private and/or sectarian schools. 4

Though states provide this crucial public

benefit in a variety of settings – from densely

populated cities to the sparsely populated Maine

countryside – all retain authority to provide it

equitably, without discrimination, and without

favoritism with regard to race, sex, disability,

religion, or other protected categories. State supreme

courts have recognized states’ authority to protect

instruction shall be allowed therein; but the legislature by law

may, for the purpose of religious instruction outside the district

schools, authorize the release of students during regular school

hours.

Wyo. Const. art. 7, §8:

Provision shall be made by general law for the equitable

allocation of such income among all school districts in the state.

But no appropriation shall be made from said fund to any district

for the year in which a school has not been maintained for at

least three (3) months; nor shall any portion of any public school

fund ever be used to support or assist any private school, or any

school, academy, seminary, college or other institution of

learning controlled by any church or sectarian organization or

religious denomination whatsoever.

4 Twenty-three states have placed limits on public funding

to private and/or religious schools. Ala. Constitution art. XIV, §

263; Ark. Const. art. 14, § 2; Cal. Const. art. 9, § 8; Colo. Const.

art. IX, § 7; Del. Const. art. X, § 3; Ga. Const. art. 8, § 5, Par.

VII; Haw. Const. art. X, § 1; Ky. Const. § 189; Mass. Const.

Amend. art. XVIII; Mich. Const. art. I. § 4 and art. VIII, § 2;

Minn. Const. art. XIII, § 2; Miss. Const. art. 8, § 208; Mo. Const.

art. IX, § 8; Mont. Const. art. V, §11(5) & art. X, §6; Neb. Const.

art. VII, § 11; N.C. Const. art. II, § § 6,7; N.H. Const. Part II, art.

83; N.M. Const. art. XII, § 3; R.I. Const. art. XII §§ 2, 4; S.C.

Const. art. XI, § 4; Tex. Const. art. VII, § 5; Va. Const. art. VIII,

§10; Wyo. Const. art. 7, § 8.

7

public funds for use for the secular, equally accessible

public education required by state constitutions. 5 The

federal government, too, encourages open, accessible

public schools by attaching anti-discrimination

standards to federal dollars. Prohibitions against

race discrimination have been attached to federal

dollars for education since 1964 6

and sex

discrimination standards to education funds since

1974. 7

This case presents a question of vital

importance to amici: whether the free public

education available to all residents by their local

school boards must include the option of a pervasively

religious education or whether innovative methods of

providing a secular public education that are

necessitated by local district circumstances may

lawfully exclude the sectarian alternative.

5 Louisiana Federation of Teachers v. State, 118 So.3d 1033,

1071 (La. 2017)(holding that vouchers unconstitutionally

diverted funds to nonpublic entities in violation of state

constitution, which required those funds to be allocated

equitably to “parish and city school systems.”); Cain v. Horne,

202 P.3d 1178, 1174 (Ariz. 2009) (holding language and purpose

of the state’s Aid Clause do not permit the appropriations certain

voucher programs provided; to rule otherwise would allow

appropriations that would amount to “aid of ... private or

sectarian school[s]); Bush v. Holmes, 919 So.2d 392, 407 (Fla.

2006)(invalidating program found to violate state constitution by

devoting state resources to the education of children within the

state through means other than a system of free public schools).

6 Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

7 Title IX of the Education Amendments of 1974, 20 U.S.C.

§ 1681-§ 1688.

8

Maine, like many states, has developed a

system of public education that strives to remain

neutral toward religion, by not favoring one religion –

or non-religion – over another. But Maine’s program,

unlike the tax credit scholarship and voucher

programs considered by this Court in Espinoza v.

Montana Dep’t of Revenue, 140 S.Ct. 2246 (2020), and

Zelman v. Simmons-Harris, 536 U.S. 639 (2002), is

not a general public subsidy for private education.

Rather, Maine designed its program to address the

narrow circumstances in which the state cannot

otherwise discharge its state constitutional duty to

provide free public education because the school

district does not have the resources to maintain

schools at certain grade levels.

The specific

educational opportunity that the state is seeking to

replace and procure for these students is as similar as

possible to the open, free education the state would

otherwise provide in public school.

This Court has never held that a state must

fund a pervasively religious program of instruction as

part of its own education offerings. In Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137

S.Ct. 2012 (2017), and Espinoza, this Court held that

religious entities “otherwise eligible” for public

benefits had the right to participate on the same

terms as others. States need not create voucher or

choice programs at all, but once they do, they cannot

exclude participants based solely on religion. That

principle does not preclude states from shaping

programs in ways that ensure public dollars only

support publicly sanctioned goals. In neither case did

the Court hold that states must use public funds to

spread a religious message. Nor did the Court reject

states’ important interests in anti-discrimination and

9

religious neutrality in curriculum or hold that an

individual’s right to free exercise of religion outweighs

those interests. States still cannot endorse or promote

religion in their public education programs and must

follow state and federal requirements for open, nondiscriminatory access.

Requiring the compulsory funding of sectarian

education would remove a state’s ability to craft

solutions to geographic or other important barriers to

the delivery of public instruction. A one-size-fits-all

mandate of this sort is contrary to long-established

principles of federalism, and risks states opting to bar

private education concerns from needed state

programs.

Whether the Court clarifies or retires the

religious status-versus-use distinction articulated in

Locke v. Davey, 540 U.S. 712 (2004) and upheld in

Trinity Lutheran and Espinoza, it can still decide that

a state may define the contours of its public education

system by requiring that it remain neutral with

respect to religion, and open to all. Amici urge the

Court to consider how a broader ruling will adversely

impact public education.

ARGUMENT

I. States and Local School Districts May Design

Their Public Education Programs To Be

Inclusive And Religiously Neutral.

Maine has a unique method for ensuring that its

local school administrative units (“SAUs”) are able to

furnish a free public education to all of its residents.

Because some SAUs for historical and/or geographic

reasons do not operate schools at all grade levels,

Maine provides for two alternatives. First, the SAU

10

may contract with another SAU or with a nonsectarian private school to serve its residents. In lieu

of such an arrangement, Maine authorizes the SAU to

make tuition payments for its residents to attend

their choice of private schools but, consistent with the

fundamental attributes of a public education,

excludes sectarian schools from this program.

Here, Petitioners are parents eligible to

participate in Maine’s tuition program. They have

challenged the program’s exclusion of sectarian

schools because it renders them unable to use public

dollars to send their children to the private sectarian

schools they would prefer. They challenge, in other

words, how Maine’s system of public education is

structured and funded. This case therefore addresses

how Maine funds public education, not how it

supports private education through a subsidy

program like the tax credit scholarship program

considered in Espinoza or the school voucher program

challenged in Zelman.

As Respondent ably argues, students in states that

provide public education exclusively through public

schools do not have a constitutional right to a

sectarian education at public expense. Brief of

Respondent at 2. In Maine, students who live in SAUs

that provide public education in public schools do not

have a such a right, either. The Maine statute simply

makes that true for students served by SAUs that,

due to geographic and financial realities, do not

operate a secondary program.

If this Court requires Maine to fund religious

education as part of its public education options, it

will shift significantly from its precedent recognizing

11

the importance of open, inclusive, and religiouslyneutral public schools.

A. Longstanding Precedent Gives States

Authority To Offer Public Education

That Is Not Only Religiously Neutral, But

Also Inclusive, Equitable, And Reflective

Of Constitutional Norms.

States, not the federal government, are

responsible for financing, managing, and supporting

public education through locally chosen school boards

that govern their community schools. From our

nation’s founding, public education was omitted from

those functions delegated to the new central

government as part of the effort to preserve a federal

system of state sovereigns and to avoid a national

government. Public education therefore is governed

by 50+ state authorities. See Kern Alexander & M.

David Alexander, American Public School Law, p.2

(Wadsworth Cengage Learning, 9th ed. 2019). In the

mid-1880s, as states embraced common schools and

started state-wide systems, their success hinged on

raising new funds to grow those schools and

preventing the diversion of funds to a private system.

Prohibiting public aid to private schools—religious or

otherwise—was a natural step in starting, expanding,

and preserving public education. Steven K. Green,

The Insignificance of the Blaine Amendment, 2008

B.Y.U. L. REV. 295, 310-318 (2008).

States fulfill their public education mission in a

variety of ways. Some operate county-based school

districts of similar size, while others allow districts of

12

widely varying size.8 In some, like Pennsylvania,

most school board members are elected. The Center

For Public Justice, What Is The Role Of School

Boards?

(last

accessed

Oct.

25,

2021),

https://www.cpjustice.org/public/page/content/cie_faq

_school_boards. In others, like Michigan, some school

board members are elected, and some are appointed.

Id.

There are as many public school funding systems

as there are states, each a product of its own

geographic, political, and historical context. Absent a

federally-recognized “fundamental” right to public

education, federal courts are deferential to state

school funding schemes. This Court has recognized

that “the very complexity of the problems of financing

and managing a statewide public school system

suggests that ‘there will be more than one

constitutionally permissible method of solving them,’

and that, within the limits of rationality, ‘the

legislature's efforts to tackle the problems' should be

entitled to respect.” San Antonio Ind. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 42 (1973)(citation omitted).

8 Maryland, for example, operates 24 county-based school

districts.

Maryland

Department

of

Education,

http://www.marylandpublicschools.org/about/Pages/directory.as

px. Florida operates 67. Florida Department of Education,

http://www.fldoe.org/core/fileparse.php/7507/urlt/1718Profiles.p

df. Illinois operates over 850 school districts of varying sizes.

Illinois

State

Board

of

Education,

https://www.isbe.net/Documents/reorg_history.pdf. The largest

Illinois district serves over 350,000 students, Chicago Public

Schools, CPS Stats and Facts, https://cps.edu/About_CPS/At-aglance/Pages/Stats_and_facts.aspx, and the smallest serves 33.

Regional Office of Education #28, Ohio Community High School

District #505, http://www. bhsroe.org/public-schools/ohio505/.

13

Indeed, states must retain this authority to control

funding of public schools, as the Constitution forms a

federal, not national, government which reserves to

the states and the people “[t]he powers not delegated

to the United States by the Constitution.” US Const

Am X. As such, “states retain broad autonomy […] in

structuring their governments and pursuing

legislative objectives.” Shelby County v. Holder, 570

U.S. 529, 530 (2013). “Being an instrument of limited

and enumerated powers, it follows irresistibly, that

what is not conferred [by the Constitution], is

withheld, and belongs to the state authorities.” New

York v. United States, 505 U.S. 144, 156 (1992). In

fact, “The Constitution never would have been

ratified if the States and their courts were to be

stripped of their sovereign authority except as

expressly provided by the Constitution itself.” Alden

v. Maine, 527 U.S. 706, 727 (1999), quoting

Atascadero State Hospital v. Scanlon, 473 U.S. 234,

238, n. 2 (1985).

States have wide latitude to draft their state

constitutions to suit the policy concerns of their own

populace. Indeed, they must make policy choices to

address the “wide range of matters assigned to them

by their citizens and left open to them by the very

incompleteness of the U.S. Constitution.” Advisory

Commission on Intergovernmental Relations, State

Constitutions in the Federal System: Selected Issues

and Opportunities for State Initiatives, (July 1989),

available

at

https://library.unt.edu/gpo/acir/Reports/policy/a113.pdf, at 8.

State

constitutions

reflect

varying

approached to government, are more

frequently amended than the U.S.

14

Constitution, often allow for citizen

participation in amendment, and tend to

amass a large number of detailed

provisions, including bills of rights that

differ slightly from the U.S. Constitution.

Id. at 1.

But all states have adopted an approach to public

education that insists it be “available to all on equal

terms.” Brown, 347 U.S. at 493. States require by

constitution and statute that public education be

provided without discrimination based on race, sex,

disability, religion and other categories enshrined in

federal law, as well as additional categories found in

state law. State and local governments have authority

to carry out this and other crucial functions with an

affirmative bias in favor of goals like equality,

fairness, democracy, and religious neutrality through

generally-applicable

rules.

See

Fulton

v.

Philadelphia, 141 S.Ct. 1868 (2021). Secular public

schools (historically referred to as “common”) schools,

rather than raising First Amendment problems, are

central to reinforcing the citizenship and norms that

lie at the heart of the nation’s democratic project. See

Derek Black, Schoolhouse Burning: Public Education

and the Assault on American Democracy, 113-133,

Public Affairs (2020).

In

upholding

Washington’s

constitutional

prohibition on providing scholarship funds to

students to pursue degrees that are “devotional in

nature or designed to induce religious faith,” Locke,

540 U.S. at 716, this Court recognized that the state

did not violate the U.S. Constitution by drawing “a

more stringent line” than that drawn by the Free

Exercise and Establishment Clauses, noting that

15

Washington has “historic and substantial state

interest” in the matter, especially regarding “religious

instruction.” Id. at 713, 725, 723.

Nor did the Espinoza decision purport to require

the state to allow religious entities to stand in the

shoes of the government and use those shoes to carry

out a religious mission. To the contrary, bedrock

Establishment Clause principles dictate that the

state cannot establish, coerce, directly fund, endorse,

or purposely advance religion. This Court has made it

clear that the Constitution commits the government

to a “position of neutrality” in respect to religion. Lee

v. Weisman, 505 U.S. 577 (1992) (invalidating prayer

because of coercive effect); Edwards v. Aguillard, 482

U.S. 578 (1987) (invalidating the mandate to teach

“creation science” in public schools); Abington Twp. v.

Schempp, 374 U.S. 203 (1963) (invalidating bible

reading and school prayer). See also, Espinoza v.

Montana Dep’t of Revenue, 140 S.Ct. 2246

(2020)(Breyer, J., dissenting)(“our history and federal

constitutional precedent reflect a deep concern that

state funding for religious teaching, by stirring fears

of preference or in other ways, might fuel religious

discord and division and thereby threaten religious

freedom itself.”) (Citations omitted).

For more than 50 years, this Court has held that

it violates the Establishment Clause to tailor a public

school’s curriculum or establish special schools to

satisfy the principles or prohibitions of any religion.

Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687,

702 (1994)(striking down New York statute creating

a special school district for a religious enclave of one

sect of Orthodox Jews, ruling that the establishment

of the school district was unconstitutionally driven by

16

religious considerations, and amounted to a forbidden

“fusion of governmental and religious functions;”

(citation omitted)); Epperson v. Arkansas, 393 U.S. 97

(1968).

This Court similarly has held that the government

may not involve itself in the composition or

encouragement of religious worship in public schools,

even if students who do not wish to participate are

excused from doing so, and even though the

government's composition and encouragement of

comparable secular ceremonies, such as recitation of

the Pledge of Allegiance, is constitutionally

unproblematic. See Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577

(1992); Wallace v. Jaffree, 472 U.S. 38 (1985); Sch.

Dist. of Abington Township, Pennsylvania v.

Schempp, 374 U.S. 203 (1963). These decisions reflect

a value intrinsic to state-church separation enshrined

in the Religion Clauses – that one religious sect

should not control government in the form of public

schools. Nearly 70 years ago, this Court determined

that a school district could allow students release

time to attend religious instruction during the school

day without violating the Establishment Clause,

noting that accommodating religious instruction is

very different from financing it.

Government may not finance religious

groups nor undertake religious instruction

nor blend secular and sectarian education

nor use secular institutions to force one or

some religion on any person. But we find no

constitutional requirement which makes it

necessary for government to be hostile to

religion and to throw its weight against

17

efforts to widen the effective scope of

religious influence. The government must

be neutral when it comes to competition

between sects. It may not thrust any sect

on any person.”

Zorach v. Clauson, 343 U.S. 306, 314 (1952). At least

one circuit has determined that a school district

provided a student with equal access to an education,

on the same basis as it provided to all other students

with disabilities, even though it did not include

provide religious and cultural instruction in the

student’s program, as the district did not provide such

instruction to its students with or without disabilities.

The court determined that the district had no duty

under the federal special education statute to do so.

M.L. v. Smith, 867 F.3d 487 (4th Cir. 2017).

The historic commitment by states throughout the

nation to maintain public school systems neutral

toward religion is part of a broader effort to keep

schools open and welcoming to all. Many states have

enshrined in their constitutions the principle that

public education is to be provided to all eligible

students without regard to protected characteristics

including race, and sex, but also religion. Michigan

requires its legislature to “maintain and support a

system of free public elementary and secondary

schools as defined by law. Every school district shall

provide for the education of its pupils without

discrimination as to religion, creed, race, color or

national origin.” MI CONST Art. 8, § 2. Colorado

prohibits sectarian teachings in its public schools, and

any “religious test or qualification” to be required for

admission to “any public educational institution of the

state, either as a teacher or student; and no teacher

18

or student of any such institution shall ever be

required to attend or participate in any religious

service whatsoever.” Colo. Const. art. IX, § 8.

State anti-discrimination statutes across the

country protect student access to public education by

prohibiting discrimination based on characteristics

this Court has recognized under the U.S.

Constitution. Maine’s statute protects participants in

educational programs, including those in private

schools approved for the tuition program, from

“discrimination because of sex, sexual orientation or

gender identity, a physical or mental disability,

ancestry, national origin, race, color or religion….”

Me. Rev. Stat. Ann. tit. 5, §§ 4601-4602 (2021). It is

precisely

the

applicability

of

these

antidiscrimination provisions that prevent some private

schools from participating in public funds programs

with anti-discrimination strings attached, such as

Maine’s tuition program, and give rise to the standing

issue articulated by Respondents in this case. Brief of

Respondent at 51-54. Schools receiving public dollars

must agree not to discriminate to participate in the

public program.

B. The state may design the contours of its

public

education

system

without

implicating Free Exercise rights.

To sustain their free, open public school systems,

states must have authority to define their contours to

keep them neutral and nondiscriminatory. Maine’s

tuition program is no different. By including a tuition

program in its public school offerings, the state is not

giving up authority to ensure students who use the

program experience an education free from

19

discrimination and indoctrination. A government

requirement that those representing and carrying out

its core functions adhere to government’s nondiscrimination and neutrality goals is entirely

different from government subsidizing private

education as in Espinoza. In this case, government is

not denying access to a generally available benefit but

rather deciding how to structure itself.

This Court’s Espinoza decision does not prohibit

this concept. By holding that a state does not have to

support private schools at all, but if it does it must not

discriminate based on religious status, this Court

once again supported religious neutrality. That

neutral stance with respect to religious status should

have no effect on a state’s control of its public

education program, governed by local school boards.

Here, the benefits that Maine does provide remain

open to religious entities that are willing to deliver

the secular education the state seeks to procure.

The state, in maintaining a religiously neutral

public school program, is not denying petitioners the

benefit offered by Maine based on their religion in any

sense. To the contrary, the option of obtaining a

secular education by attending non-sectarian private

schools at public expense is made available to all

residents on equal terms. The state provides its

residents the unfettered freedom to choose, instead,

an education which is sectarian in all respects; but

that education properly is not available in the public

school program.

Applicants who seek a benefit distinct from the

one the state has offered have not been excluded

based on religious status simply because the program

does not facilitate the pursuit of their personal

20

religious preferences. They simply want something

other than what the state is offering. This Court has

held that a statute does not impinge on a

constitutional right merely because it does not

subsidize that right. Harris v. McRae, 448 U.S. 297,

317-18 (1980) (“[A]lthough the liberty protected by

the Due Process Clause affords protection against

unwanted government interference with freedom of

choice in the context of certain personal decisions, it

does not confer an entitlement to such funds as may

be necessary to realize all the advantages of that

freedom.” Id. at 317-318. . .”).

This Court has recognized, too, that local school

boards play an important role in public education by

determining curriculum and operating school

facilities. “No single tradition in public education is

more deeply rooted than local control over the

operation of schools; local autonomy has long been

thought essential both in the maintenance of

community concern and support for schools and the

quality of the educational process.” Milliken v.

Bradley, 418 U.S. 717, 741-742 (1974). See also Board

of Education v. Pico, 457 U.S. 853, 863 (1982)( “local

school boards have a substantial legitimate role to

play in the determination of school library content”);

Edwards v. Aguillard, 482 U.S. 578, 583 (1987)

(“States and local school boards are generally afforded

considerable discretion in operating public schools.”).

School boards must, and do, make decisions about

curriculum materials based on state guidelines, as

well as community input and values. Parents are

crucial partners and stakeholders, providing input to

board decisions. Once decisions are made about

curriculum materials, families may opt out of certain

21

portions for religious reasons, but it would be

unworkable if individual families dictated individual

curriculum for their children. Courts have

consistently concluded that parents’ rights “to direct

the education and upbringing of [their] children”

allow parents to choose whether to send their children

to public or private school. However, parents “do not

have a fundamental right generally to direct how a

public school teaches their child.” Blau v. Fort

Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th

Cir. 2005) (citations omitted).

Maine places local boards on the front line of

implementing the delivery of a “free public education”

to “every person” in their SAUs. Me. Rev. Stat. Ann.

tit. 20 §§ 2(1) and (2). To that end, and among

numerous other important tasks, the local boards

must “adopt policies that govern” the SAUs; must

“adopt the courses of study in alignment with the

system of learning results” established by the State;

must “adopt a policy governing the selection of

educational materials and may approve educational

materials”; and must “adopt a district-wide student

code of conduct consistent with the statewide

standards.” Id. at §§ 1001(1-A), (6), (10-A), and (15).

Petitioners’ theory, if accepted, would remove these

boards from their important local oversight function

of ensuring that the fundamental elements of a

public, open education are made available to all their

residents.

Assuming the private schools sought by

Petitioners decided to accept public funds, they would

be subject to state non-discrimination and

accountability requirements. They would not be able

to restrict, as they currently may, Brief of Respondent

22

at 11-13 and 14-16, attendance and employment at

the schools to those of the same religious faith and

stated beliefs on topics including sexual orientation.

Public entities and religious organizations that accept

state funds in Maine may not discriminate in

employment based on sexual orientation. Brief of

Respondent at 54, citing Me. Rev. Stat. Ann. tit. 5, §

4572(1)(A) and § 4553(10)(G). Similarly, religious

schools that accept public funds may not discriminate

against students based on sexual orientation and

gender identity. Id., citing P.L. 2021, ch. 366, sec. 19.

States retain authority to limit the type of

curriculum public dollars support within the setting

options available in its public school system. By

retaining the crucial authority to define the contours

of its own program of study, Maine defines the use of

its public dollars as well. If the Court finds that it can

no longer do this with respect to maintain religious

neutrality, the authority of public school systems

throughout the nation is at risk.

II. A Decision Requiring Maine To Change Its

Public Education Program As Sought By

Petitioners Would Undermine Support Of

Public Education Throughout The Nation.

If this Court requires Maine and its local SAUs to

fund pervasively religious instruction, which it has

never held is required by the Free Exercise Clause, it

would call into question similar provisions in other

jurisdictions and would remove a means by which

those jurisdictions support their public schools. Such

a ruling would render meaningless the religious

status-versus-use distinction applied by this Court in

23

Locke, Trinity Lutheran, and Espinoza, opening the

gate for widespread public funding of private schools.

The harm to public education could be significant.

Although this case is not about voucher, or other

subsidy programs as Espinoza was, it could have

significant effects on such programs. Twenty-three

states have placed some kind of limit on public

funding for private and/or religious schools. 9

The number and size of voucher programs has

grown in recent years. Today, more than half the

states operate some form of private school tuition

assistance, and legislatures regularly consider bills to

expand them. Twenty-six states, Puerto Rico and

Washington, D.C. have private school choice

programs; twelve states plus Puerto Rico &

Washington, D.C. have voucher programs; eighteen

states have tax credit scholarship programs; and six

have education savings account programs. 10

Expanded voucher and other “choice” programs,

far from expanding educational opportunity, have

9 Ala. Constitution art. XIV, § 263; Ark. Const. art. 14, § 2;

Cal. Const. art. 9, § 8; Colo. Const. art. IX, § 7; Del. Const. art.

X, § 3; Ga. Const. art. 8, § 5, Par. VII; Haw. Const. art. X, § 1;

Ky. Const. § 189; Mass. Const. art. XVIII; Mich. Const. art. I. §

4 and art. VIII, § 2; Minn. Const. art. XIII, § 2; Miss. Const. art.

8, § 208; Mo. Const. art. IX, § 8; Mont. Const. art. V, §11(5) &

art. X, §6; Neb. Const. art. VII, § 11; N.C. Const. art. II, § § 6,7;

N.H. Const. Part II, art. 83; N.M. Const. art. XII, § 3; R.I. Const.

art. XII §§ 2, 4; S.C. Const. art. XI, § 4; Tex. Const. art. VII, § 5;

Va. Const. art. VIII, §10; Wyo. Const. art. 7, § 8.

10 American Federation for Children Growth Fund, 2020

School Choice Guidebook an Annual Publication (2020)

https://www.federationforchildren.org/wp-content/uploads/

2020/11/Guidebook-20Nov13singles.pdf#page=6.

24

been shown to exacerbate inequality by making public

schools less uniform, and to lead to a decrease in state

support for public education. School districts with

substantial voucher programs have seen per-pupil

revenues in traditional public schools decline by 10%

to 20% in just a few years. Derek Black, Preferencing

Educational Choice, 103 Cornell Law Review 1353,

1427 (2018) (citations omitted). Social science and

states’ own calculations indicate these decreases are

sufficient to deprive students of adequate and equal

educational opportunity. Id. In this way, many are

creating a preference for private schooling via public

funding that is undermining public education. Id. at

1424. By creating “choice” programs in direct

competition with public education, and reducing

financial support for public educational opportunities,

states are creating a harmful cycle where

underfunded public schools cannot compete, creating

an artificial demand for “choice” programs that

subsidize private schools.

A ruling in this case requiring states to fund

religious education as part of their public education

offerings removes any “play in the joints” between

what the Establishment Clause allows and the Free

Exercise Clause requires and would shift decades of

precedent under which states have operated their

public school systems. States faced with the prospect

of being required to fund religious education through

their choice or voucher programs would likely expand

them dramatically or shut them completely. In this

case, the state of Maine funds equivalent public

education in the private sector, ensuring equal

opportunity and access through accountability

requirements,

thereby

improving

education

25

outcomes. If it is required, instead, to promote and

subsidize religious instruction, its public education

footprint likely will shrink.

Should this Court reject states’ ability to regulate

use of public funds for religious instruction in public

school programs, states would face a stark value

choice. A state would either need to eliminate

vouchers altogether or accept that public money will

finance religious education, in schools often closed off

to students whose identifies or beliefs to not match

that sect’s. Some states, faced with an open and

deregulated private school voucher system, will find

such a system is counter to the public’s interest in

education and will choose to eliminate it to maintain

tradition, constitutional norms, and equal access.

*****

A state has a significant, even compelling, interest

in ensuring its public school system remains equally

open to all. A ruling in this case that states must fund

religious education as part of its public education

program runs contrary to that interest. States and

local school districts must be able to continue to define

the contours of their public schools, as this Court has

long recognized, to fulfil their duty to provide open

public education, so vital in a free, democratic society.

26

CONCLUSION

The First Circuit’s decision should be affirmed.

Respectfully submitted,

FRANCISCO M. NEGRÓN, JR.

Counsel of Record

CHIEF LEGAL OFFICER

SONJA H. TRAINOR

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street, FL 2

Alexandria, VA 22314

(703) 838-6722

fnegron@nsba.org

Counsel for Amici Curiae