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

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF AMICI CURIAE OF VIRGINIA,

CALIFORNIA, DELAWARE, MASSACHUSETTS,

MINNESOTA, NEW MEXICO, NEW YORK,

OREGON, WASHINGTON, AND THE

DISTRICT OF COLUMBIA IN SUPPORT OF

DEFENDANT-RESPONDENT

Mark R. Herring

Attorney General

Erin B. Ashwell

Chief Deputy

Attorney General

Office of the

Attorney General

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7704

Michelle S. Kallen

Acting Solicitor General

Counsel of Record

Laura H. Cahill

Assistant Attorney General

Rohiniyurie Tashima

John Marshall Fellow

solicitorgeneral@oag.state.va.us

Additional Counsel listed on signature page

TABLE OF CONTENTS

Page

Table of Contents.................................................................. i

Table of Authorities.............................................................. ii

Interest of Amici Curiae...................................................... 1

Summary of Argument......................................................... 1

Argument............................................................................... 2

I. States have a historic and substantial

tradition of deciding for themselves

whether or how to finance religious schools...... 3

A.

Americans at the Founding sought

to disentangle government from religion..... 3

B.

Since the Founding, State and local

governments have had flexibility to

decide how to fund schools, what

to teach their children, and how to

create a safe learning environment............... 9

II. Petitioners’ rigid test undermines States’

historic and substantial flexibility in

deciding whether to fund religious education.. 15

Conclusion........................................................................... 25

i

ii

TABLE OF AUTHORITIES

Cases:

Agostini v. Felton,

521 U.S. 203 (1997)....................................................... 11

Ambach v. Norwick,

441 U.S. 68 (1979)........................................................... 9

Bob Jones Univ. v. United States,

461 U.S. 574 (1983)....................................................... 23

Brown v. Board of Educ.,

347 U.S. 483 (1954)....................................................... 23

Chittenden Town Sch. Dist. v. Department of

Educ.,

738 A.2d 539 (Vt. 1999).................................................. 8

Clark v. Board of Sch. Dirs.,

24 Iowa 266 (1868)....................................................... 23

Cutter v. Wilkinson,

544 U.S. 709 (2005)....................................................... 18

Edwards v. Aguillard,

482 U.S. 578 (1987)........................................... 10, 13, 16

Epperson v. Arkansas,

393 U.S. 97 (1968)............................................... 9, 10, 13

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020).................................................. 18

Everson v. Board of Educ.,

330 U.S. 1 (1947).................................................. passim

Findley v. City of Conneaut,

62 N.E.2d 318 (Ohio 1945)............................................ 8

iii

TABLE OF AUTHORITIES – Continued

Page

Flast v. Cohen,

392 U.S. 83 (1968)..................................................... 6, 11

Freedom From Religion Found. v. Morris

Cnty. Bd. of Chosen Freeholders,

181 A.3d 992 (N.J. 2018).............................................. 19

Illinois Bible Colls. Ass’n v. Anderson,

870 F.3d 631 (7th Cir. 2017)......................................... 18

Knowlton v. Baumhover,

166 N.W. 202 (Iowa 1918).............................................. 8

Locke v. Davey,

540 U.S. 712 (2004).............................................. passim

Michigan v. Long,

463 U.S. 1032 (1983)..................................................... 18

Milliken v. Bradley,

418 U.S. 717 (1974)........................................... 10, 11, 12

Minnesota v. National Tea Co.,

309 U.S. 551 (1940)....................................................... 18

Norwood v. Harrison,

413 U.S. 455 (1973)....................................................... 23

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008)........................................... 18

Plyler v. Doe,

457 U.S. 202 (1982)......................................................... 9

Regan v. Taxation With Representation of

Wash.,

461 U.S. 540 (1983)....................................................... 17

iv

TABLE OF AUTHORITIES – Continued

Page

Reynolds v. United States,

98 U.S. 145 (1878)....................................................... 4, 8

San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1 (1973)........................................................... 10

School Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963)....................................................... 13

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017).................................................. 18

United States v. Lopez,

514 U.S. 549 (1995)......................................................... 9

Walz v. Tax Comm’n,

397 U.S. 664 (1970)...........................................1, 2, 3, 24

Zelman v. Simmons-Harris,

536 U.S. 639 (2002)....................................................... 11

Constitutional Provisions:

Me. Const. art. VIII, Pt. 1, § 1............................................ 15

U.S. Const. amend. I............................................................. 2

Statutes:

24 Pa. Cons. Stat. § 13-1327(b)......................................... 19

42 U.S.C. 1981...................................................................... 22

42 U.S.C. 2000c-8................................................................ 22

Ala. Code § 16-1-11.2(b)..................................................... 20

Ala. Code § 16-22A-16........................................................ 21

v

TABLE OF AUTHORITIES – Continued

Page

Alaska Stat. Ann. § 14.30.010(b)(1).................................. 19

An Act Concerning Religion (Md. Sept. 21, 1649)............ 5

Ariz. Rev. Stat. Ann. § 15-802(A)....................................... 19

Cal. Educ. Code § 48222.................................................... 19

Conn. Gen. Stat. § 10-18(a)(1).......................................... 20

Conn. Gen. Stat. § 10-184................................................... 20

Fla. Stat. § 1002.42(2)(h)................................................... 21

Ga. Code Ann. § 20-2-690(b)............................................. 19

H.D. 588, 2021 Leg. at 104 (Md. 2021).............................. 17

Ind. Code Ann. § 20-30-1-1................................................. 20

La. Stat. Ann. § 17:11.......................................................... 20

Mass. Gen. Laws ch. 76, § 1............................................... 19

Me. Stat. tit. 20-A, § 2(1).................................................... 15

Me. Stat. tit. 5, § 4553(2-A)................................................ 22

Me. Stat. tit. 5, § 4601......................................................... 22

N.C. Gen. Stat. Ann. §§ 115C-562.1–562.8 (2020)........... 17

N.Y. Educ. Law § 3204(2) (McKinney 2018).................... 19

Tex. Educ. Code Ann. § 25.086(a)(1)............................... 20

Va. Code Ann. § 23.1-628 (2016)....................................... 16

Va. Code Ann. § 57-1 (1786)............................................ 6, 7

vi

TABLE OF AUTHORITIES – Continued

Page

Other Authorities:

50-State Comparison High School

Graduation Requirements, Educ. Comm’n

of the States (Feb. 2019)............................................. 12

50-State Comparison, Scholarship Tax

Credits, Educ. Comm’n of the States

(March 2021)................................................................. 16

50-State Comparison, Vouchers, Educ.

Comm’n of the States (March 2021).......................... 16

Alabama Course of Study English Language

Arts, Alabama State Dep’t of Educ. (2021)............... 12

America: Land I Love in Christian

Perspective (Abeka, 3d ed. 2016)............................... 21

Bekah McNeel, Some Christian schools are

finally grappling with their racist past

and segregated present, The Undefeated

(Aug. 26, 2020).............................................................. 24

Cleveland City Sch. Dist. Performance Audit

2-1 (Mar. 1996).............................................................. 11

Diversity, Race & Religion, stop‌bullying.gov............... 14

Edmund S. Morgan, Roger Williams: The

Church and the State (1967)......................................... 5

Education Improvement Scholarships Tax

Credits Program, Virginia Dep’t of Educ................. 16

Effects of Bullying, stopbullying.gov.............................. 14

Gender Diversity, Virginia Dep’t of Educ....................... 14

vii

TABLE OF AUTHORITIES – Continued

Page

Gender-Inclusive Schools, Washington Off. of

Superintendent of Pub. Instruction........................... 14

Georgia Standards of Excellence (GSE),

Georgia Dep’t of Educ................................................. 12

Gerald Leinwand, Public Education (1992)...................... 9

H.R. McIlwaine, ed., Journals of the House of

Burgesses of Virginia 1619–1658/59 (1915)................. 4

James H. Hutson, Religion and the Founding

of the American Republic (1998)......................... 4, 5, 6

James Madison, Memorial and Remonstrance

(June 1785).................................................................... 11

K12 Programs: Participating Nonpublic

Schools, North Carolina State Educ.

Assistance Auth............................................................ 17

Kenneth L. Townsend, Education and the

Constitution: Three Threats to Public

Schools and the Theories that Inspire

Them, 85 Miss. L.J. 327 (2016)..................................... 9

Kristina D. McKenzie, The desegregation of

New Orleans public and Roman Catholic

schools in New Orleans, LSU Master’s

Theses (2009)................................................................ 24

Leslie Postal et al., Private schools’ curriculum

downplays slavery, says humans and

dinosaurs lived together, Orlando Sentinel

(June 1, 2018)................................................................ 21

Letter from James Madison to Edward

Livingston (July 10, 1822)............................................. 7

viii

TABLE OF AUTHORITIES – Continued

Page

Letter from James Madison to William

Bradford (Apr. 1, 1774).................................................. 7

Letter from Thomas Jefferson to Danbury

Baptists (Jan. 1, 1802).................................................... 7

LGBTQI+ Youth, stopbullying.gov................................... 14

Low Income Students Scholarship, Kan. Dep’t

of Revenue.................................................................... 16

MASSGrant & MASSGrant Plus, Office of

Student Fin. Assistance............................................... 16

MI Student Aid, Off. of Postsecondary Fin. Plan.......... 16

Providing a Safe, Nondiscriminatory

School Environment for Transgender

and Gender-Nonconforming Students,

California Sch. Bds. Ass’n (Feb. 2014)...................... 14

Religion and the Founding of the American

Republic, Library of Congress...................................... 4

Resources, Maryland BOOST Scholarship Coal............. 17

Richard C. Schragger, The Role of the Local in

the Doctrine and Discourse of Religious

Liberty, 117 Harv. L. Rev. 1810 (2004)................ 10, 12

Science Standards of Learning–Adopted

2018, Virginia Dep’t of Educ...................................... 13

Standards of Learning (SOL) & Testing,

Virginia Dep’t of Educ................................................. 12

The New York State Tuition Assistance

Program (TAP), N.Y. Higher Educ. Servs. Corp...... 16

ix

TABLE OF AUTHORITIES – Continued

Page

Thomas Jefferson and the Virginia Statute

for Religious Freedom, Va. Museum of

Hist. & Culture................................................................ 6

Virginia Accredited School Locator, Private

Education...................................................................... 17

Virginia Statute for Religious Freedom, The

Jefferson Monticello...................................................... 6

INTEREST OF AMICI CURIAE

Amici curiae are the Commonwealths of Virginia

and Massachusetts, the States of California, Delaware,

Minnesota, New Mexico, New York, Oregon, and

Washington, and the District of Columbia.

Like Maine, Amici States respect the right of our

residents to freely exercise their faith. At the same

time, Amici States have a strong government interest

in providing education to their residents, financing that

education, and maintaining flexibility in their approaches

to when and how to subsidize religious schools that

use such funds for sectarian purposes. Amici States

highlight two unique State interests when it comes to

funding religious schools. First, public education is a

historic and substantial State function. Second, Amici

States have a strong interest in maintaining the “play in

the joints” between the Establishment and Free Exercise

Clauses that govern their respective funding choices for

religious schools that use the funds for religious purposes.

Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970). Like

Maine, Amici States have a strong interest in retaining

control over the substance of state-funded education

and especially retaining the authority to decide whether

taxpayer dollars should support programs that advance

religious beliefs, which may include beliefs inimical to

the States’ policies.

SUMMARY OF ARGUMENT

After witnessing religious persecution during the

colonial era, Americans at the Founding reached the firm

conviction that government should not be intertwined

with religion. They understood that the entanglement

of government in religion would undermine the free

practice of religion. The Establishment and Free Exercise

Clauses were born of this understanding.

1

2

Since the Founding, the States (as sovereigns) have

retained authority to operate public schools and define

an approach to education that best fits local conditions

and traditions. A rigid one-size-fits-all approach that

eliminates the distinction this Court has drawn between

discrimination based on religious status, on the one hand,

and declining to fund educational programs based on the

programs’ religious use of funding, on the other, would

prevent State and local governments from implementing

programs precisely tailored for their individual needs.

States must retain the flexibility to decide whether

and how to fund religious schools within the “play in the

joints” of the Religion Clauses. See Locke v. Davey, 540

U.S. 712, 718 (2004) (quoting Walz v. Tax Comm’n, 397

U.S. 664, 669 (1970)). Recognizing that no one solution

applies for all States, the Framers intentionally left

“space” for the individual States to decide for themselves

whether and how to provide aid to religious institutions.

Any decision by this Court should retain this flexibility,

which allows the States to tailor their different funding

approaches for private schools, whether religious or

secular, to their State-specific needs.

Adopting Petitioners’ one-size-fits-all approach will

not only hinder States’ ability to respond to the unique

concerns of their residents but will also impermissibly

invade State sovereignty when it comes to education.

Amici States urge this Court to preserve the States’

freedom to decline funding to programs based on their

use of this funding to advance religion.

ARGUMENT

The Establishment Clause prohibits laws “respecting

an establishment of religion,” and the Free Exercise

Clause forbids laws “prohibiting the free exercise

thereof.” U.S. Const. amend. I. This Court has long

3

recognized that “[t]he course of constitutional neutrality”

when navigating the Religion Clauses “cannot be an

absolutely straight line; rigidity could well defeat the

basic purpose of these provisions, which is to insure that

no religion be sponsored or favored, none commanded,

and none inhibited.” Walz v. Tax Comm’n, 397 U.S.

664, 669 (1970). Maine’s policy fits comfortably within

the “play in the joints” between the Free Exercise and

Establishment Clauses of the First Amendment. Id.

I.

States have a historic and substantial tradition

of deciding for themselves whether or how to

finance religious schools

Since ratification of the Bill of Rights, the First

Amendment’s Religion Clauses have worked together to

ensure that government does not favor any one religion,

and that Americans remain free to practice the religion of

their choice or to refrain from practicing a religion at all.

A. Americans at the Founding sought

disentangle government from religion

to

The words in the Religion Clauses of the First

Amendment “reflected in the minds of early Americans

a vivid mental picture of conditions and practices which

they fervently wished to stamp out in order to preserve

liberty for themselves and for their posterity.” Everson

v. Board of Educ., 330 U.S. 1, 8 (1947).

1. In the common telling of American history, the

colonies were established, at least in part, to allow

the colonists to practice their religion without fear of

persecution. At the same time, however, many early

colonists chose to impose their own religion on others.

Everson, 330 U.S. at 10 & n.8 (explaining that “[a]lmost

every colony exacted some kind of tax for church

support,” which “dissenters were compelled to pay,”

4

regardless of their religious beliefs). Indeed, “some

of the colonies and States [attempted] to legislate not

only in respect to the establishment of religion, but

in respect to its doctrines and precepts as well,” and

“[p]unishments were prescribed for a failure to attend

upon public worship, and sometimes for entertaining

heretical opinions.” Reynolds v. United States, 98 U.S.

145, 162–63 (1878). As this Court has recognized, in the

early days of our country, “Catholics found themselves

hounded and proscribed because of their faith; Quakers

who followed their conscience went to jail; Baptists were

peculiarly obnoxious to certain dominant Protestant

sects; men and women of varied faiths who happened to

be in a minority in a particular locality were persecuted

because they steadfastly persisted in worshipping God

only as their own consciences dictated.” Everson, 330

U.S. at 10.

For instance, the Virginia House of Burgesses in 1619

established the Church of England as Virginia’s religion.

H.R. McIlwaine, ed., Journals of the House of Burgesses

of Virginia 1619–1658/59 at 13 (1915) (“All ministers

shall duely [sic] read divine service, and exercise their

ministerial function according to the Ecclesiastical[]

Lawes [sic] and orders of the church of Englande

[sic].”).1 In the ensuing years, Anglicans “welcomed the

efforts of the civil authority to expel Puritan preachers in

the name of religious uniformity.” Hutson, supra note 1,

at 18. Virginia even went so far as to enact a law in 1659

that provided for the death penalty for Quakers. Religion

and the Founding of the American Republic, Library

of Congress, https://www.loc.gov/‌exhibits/religion‌/rel0‌1‌2.‌html.

James H. Hutson, Religion and the Founding of the American

Republic 18 (1998).

1

5

In New England, once the Puritans gained power,

they “relentlessly suppressed dissent,” including

by expelling Quakers from Massachusetts, hanging

Quakers who returned, and banishing Presbyterians

and Baptists. Hutson, supra note 1, at 7–8; Religion

and the Founding of the American Republic, Library

of Congress, https://www.loc.gov/‌exhibits/religion/‌rel0‌1‌2.‌

html.

Meanwhile, Maryland Protestants in the

1640s, “assisted by coreligionists from Virginia, seized

control and deported . . . Catholic leaders to England in

chains.” Hutson, supra note 1, at 15. When Maryland

Catholics gained power in 1649, they passed a Toleration

Act that still “established the death penalty for antiTrinitarian Christians.” Id.; An Act Concerning Religion

(Md. Sept. 21, 1649), available at https://avalon.‌

law.

yale.edu/‌18‌th‌_‌‌century/maryland‌_toleration.‌asp.‌   Once

Protestants regained power in 1654, they repealed the

Toleration Act and eventually “outlawed the Roman

Catholic religion.” Hutson, supra note 1, at 15. This

period when “Catholics in Maryland were dissenters in

their own country” lasted until the American Revolution.

Id.

In sharp contrast to their neighbors, Rhode Island and

Pennsylvania offered religious freedom to their residents.

After being forced out of Massachusetts, Roger Williams

founded Rhode Island. Edmund S. Morgan, Roger

Williams: The Church and the State 3 (1967). His belief

that government should not interfere with residents’

religious beliefs was so strong that he “protected

even those whom Williams regarded as dangerously

misguided.” Hutson, supra note 1, at 8. Pennsylvania’s

similar success with religious freedom made it “a point of

reference a century later for Americans opposing plans

for government-supported religion” with Virginians in

the House of Delegates citing it as proof that States did

not need established religions to still have governments

6

that “stand[] firm” and residents of “bright[] Morals and

[] upright Characters.” Id. at 11.

Rhode Island and Pennsylvania were exceptions to

the “evils, fears, and political problems” that ultimately

led to the Establishment and Free Exercise Clauses. See

Everson, 330 U.S. at 8. “[O]ne of the specific evils feared

by those who drafted the Establishment Clause and

fought for its adoption was that the taxing and spending

power would be used to favor one religion over another

or to support religion in general.” Flast v. Cohen, 392

U.S. 83, 103 (1968). James Madison and his supporters

worried that “religious liberty ultimately would be

the victim if government could employ its taxing and

spending powers to aid one religion over another or to

aid religion in general.” Id. at 103–04. When the “Virginia

legislative body was about to renew Virginia’s tax levy for

the support of the established church,” Thomas Jefferson

and Madison “led the fight against this tax.” Everson,

330 U.S. at 11–12. Their fight reflected how Virginians,

like people “elsewhere, reached the conviction that

individual religious liberty could be achieved best under

a government which was stripped of all power to tax, to

support, or otherwise to assist any or all religions, or to

interfere with the beliefs of any religious individual or

group.” Id. at 11.

2. This conviction led to Jefferson writing and

Madison spearheading the Virginia Statute for Religious

Freedom, which provided in part that “no man shall

be compelled to frequent or support any religious

worship . . . nor shall otherwise suffer on account of

his religious opinions or belief.” Va. Code Ann. § 57-1

(1786).2 Jefferson explained in the statute’s preamble

See also Thomas Jefferson and the Virginia Statute for

Religious Freedom, Va. Museum of Hist. & Culture, https://‌virginia‌hist

ory.‌org/‌learn‌/thomas-jefferson-and-vir‌gi‌nia-‌sta‌tu‌t‌e‌‌-reli‌gious-freedom;

Virginia Statute for Religious Freedom, The Jefferson Monticello,

2

7

that public funding of religious activities, including

religious education, violates the freedom of conscience

of taxpayers because “to compel a man to furnish

contributions of money for the propagation of opinions

which he disbelieves, is sinful and tyrannical.” Everson,

330 U.S. at 13 (quoting Va. Code Ann. § 57-1). He further

elaborated that “even [] forcing [someone] to support

this or that teacher of his own religious persuasion[] is

depriving him of the comfortable liberty of giving his

contributions to the particular pastor, whose morals he

would make his pattern.” Id. (quoting Va. Code Ann.

§ 57-1).

Madison shared Jefferson’s beliefs and similarly

explained that governmental support for religion was

“[r]eligious bondage [that] shackles and debilitates the

mind and unfits it for every noble enterprize [sic].” Letter

from James Madison to William Bradford (Apr. 1, 1774),

available at https://‌‌founders.archives.gov/‌docu‌ments/‌‌Ma

dison/‌0‌1‌‌‌-‌01-02-0031. He firmly believed that “Religion &

Govt. will both exist in greater purity, the less they are

mixed together.” Letter from James Madison to Edward

Livingston (July 10, 1822), available at https://founders.‌a

rchives.‌gov‌/‌documents/‌Madison/‌0‌4‌‌-‌02-02-0471.

Jefferson and Madison’s work ultimately led to

the Establishment and Free Exercise Clauses of the

First Amendment, which “had the same objective and

were intended to provide the same protection against

governmental intrusion on religious liberty as the Virginia

statute.” Everson, 330 U.S. at 13. Indeed, Jefferson

lauded the First Amendment as “building a wall of

separation between Church & State,” Letter from Thomas

Jefferson to Danbury Baptists (Jan. 1, 1802), available at

https://‌www.‌loc.gov/‌loc/lcib/9806/‌dan‌pre.‌‌html, language

https://www.‌monticello.org‌/site/‌res‌ea‌rch‌-‌and-collect‌ions/vir‌gi‌n‌‌ i‌astatute-re‌ligious-freedom.

8

that this Court “accepted almost as an authoritative

declaration of the scope and effect of the amendment,”

Reynolds, 98 U.S. at 164.

In keeping with this wall of separation, numerous

States enacted constitutional clauses that broadly barred

the use of tax dollars to support religion. See Locke v.

Davey, 540 U.S. 712, 719 (2004) (noting that Washington’s

State constitution prohibited “even indirectly funding

religious instruction that will prepare students for

the ministry”). State courts have long interpreted

these types of constitutional clauses as barring public

subsidies that fund religious education. Knowlton v.

Baumhover, 166 N.W. 202, 207 (Iowa 1918) (holding

that Iowa’s constitutional provision that “forbids the

establishment by law of any religion or interference

with the free exercise thereof and all taxation for

ecclesiastical support” barred the use of public funds to

aid religious instruction); Findley v. City of Conneaut,

62 N.E.2d 318, 323 (Ohio 1945) (concluding that Ohio’s

constitutional provision that declared that “[n]o person

shall be compelled to attend, erect, or support any place

of worship, or maintain any form of worship, against his

consent” prohibited municipalities from “expend[ing]

funds raised by taxation for the support or maintenance

of a sectarian school” (internal emphasis omitted));

Chittenden Town Sch. Dist. v. Department of Educ.,

738 A.2d 539, 541–42, 563–64 (Vt. 1999) (concluding that

Vermont’s constitution prohibits “compelled taxpayer

support of religious worship” and thus prevents public

funding of religious schools absent “adequate safeguards

against the use of such funds for religious worship”). The

States that took the opposite approach and “persisted

for about half a century in imposing restraints upon the

free exercise of religion and in discriminating against

particular religious groups” ultimately built this wall

of separation between religion and government once

9

this Court determined that the Fourteenth Amendment

“ma[de] the prohibitions of the First applicable to state

action abridging religious freedom.” Everson, 330 U.S.

at 14–15.

B. Since the Founding, State and local governments

have had flexibility to decide how to fund

schools, what to teach their children, and how

to create a safe learning environment

1. This Court has “recognized the public schools

as a most vital civic institution for the preservation of

a democratic system of government, and as the primary

vehicle for transmitting the values on which our society

rests.” Plyler v. Doe, 457 U.S. 202, 221 (1982) (internal

quotation marks and citations omitted); see also Ambach

v. Norwick, 441 U.S. 68, 76 (1979) (“Public education, like

the police function, fulfills a most fundamental obligation

of government to its constituency. The importance

of public schools in the preparation of individuals for

participation as citizens, and in the preservation of

the values on which our society rests, long has been

recognized by our decisions[.]” (internal quotation marks

and citation omitted)). Public education, in turn, is an

area “where States historically have been sovereign.”

United States v. Lopez, 514 U.S. 549, 564 (1995); see also

Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (“By and

large, public education in our Nation is committed to the

control of state and local authorities.”).

Education in the United States has been from the

very beginning a “largely decentralized matter in which

individual states and local governments have raised the

taxes and provided the teachers and administrators who

run schools.” Kenneth L. Townsend, Education and the

Constitution: Three Threats to Public Schools and the

Theories that Inspire Them, 85 Miss. L.J. 327, 332 (2016);

see also Gerald Leinwand, Public Education 20 (1992)

10

(“The common school [public school] movement was

not national.”). Indeed, “[n]o single tradition in public

education is more deeply rooted than local control over

the operation of schools,” and “local autonomy has

long been thought essential both to the maintenance of

community concern and support for public schools and

to [the] quality of the educational process.” Milliken v.

Bradley, 418 U.S. 717, 741–42 (1974); see also Richard

C. Schragger, The Role of the Local in the Doctrine and

Discourse of Religious Liberty, 117 Harv. L. Rev. 1810,

1846 (2004) (“Local accommodations will better calibrate

the balance between religious and secular interests.”).

Because of this deeply rooted tradition, “States and

local school boards are generally afforded considerable

discretion in operating public schools.” Edwards v.

Aguillard, 482 U.S. 578, 583 (1987); see also Epperson,

393 U.S. at 104 (“By and large, public education in our

Nation is committed to the control of state and local

authorities.”).

School funding falls within State-spending and

taxation restrictions—areas where each State faces

unique, local obstacles and conditions. See San Antonio

Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40, 42 (1973)

(referring to taxation as “an area in which [this Court]

has traditionally deferred to state legislatures” and noting

that “experience counsels against premature interference

with the informed judgments made at the state and local

levels” with respect to “the most persistent and difficult

questions of educational policy”). Maine faces the unique

obstacle of not operating public secondary schools in

more than half of its local school administrative units.

Pet. App. 5. To remedy this local issue, Maine allows

local school administrative units to contract with public

or approved private schools for school privileges or to

pay tuition costs at a public or approved private school.

Pet. App. 5.

11

Other States and localities have similarly decided to

enact programs to address their own specific challenges.

For instance, Ohio recognized that its public schools in

Cleveland “were in the midst of a crisis that is perhaps

unprecedented in the history of American education”

and responded by providing financial assistance to

families in Cleveland. Zelman v. Simmons-Harris,

536 U.S. 639, 644–45 (2002) (quoting Cleveland City

Sch. Dist. Performance Audit 2-1 (Mar. 1996)) (internal

quotation marks omitted). When disadvantaged children

in parochial schools in New York City needed remedial

education, the City took a different route. Agostini v.

Felton, 521 U.S. 203, 208 (1997). To remedy this problem

while complying with the Establishment Clause, the

City sent public employees to these schools to provide

supplemental, remedial instruction on a neutral basis

under a program that this Court upheld. Id. at 234–35.

These programs were precisely tailored to remedy

State- and locality-specific issues. Such “local control over

the educational process affords citizens an opportunity

to participate in decision-making, permits the structuring

of school programs to fit local needs, and encourages

experimentation, innovation, and a healthy competition

for educational excellence.” Milliken, 418 U.S. at 742

(quoting Rodriguez, 411 U.S. at 50) (internal quotation

marks omitted). While some States may adhere to James

Madison’s view that not even “three pence” of public

funding should support any religious establishment by

funding solely publicly provided education programs,

Flast v. Cohen, 392 U.S. 83, 103 (1968) (quoting James

Madison, Memorial and Remonstrance (June 1785)), other

States may choose to support education programs that

occur at all private schools, both secular and religious.

Cf. Locke v. Davey, 540 U.S. 712, 719 (2004) (“[T]here is

no doubt that the State could, consistent with the Federal

Constitution, permit Promise Scholars to pursue a degree

12

in devotional theology . . . .”). Allowing each State to

decide for itself how to address funding for religious

schools—operating within the constitutional space this

Court has recognized—permits their respective policies

to reflect their unique and even divergent perspectives.

See Richard C. Schragger, The Role of the Local in

the Doctrine and Discourse of Religious Liberty, 117

Harv. L. Rev. 1810, 1846 (2004) (“Local accommodations

will better calibrate the balance between religious and

secular interests.”).

Maine’s program reflects one approach tailored to its

unique needs. Because Maine’s 180,000 publicly educated

K–12 students are spread out across the predominantly

rural State, local public schools cannot meet the need for

an accessible public education. Through the program

at issue in this case, Maine relies on private schools to

deliver a public education.

2. States’ “control over the operation of schools”

extends not just to funding but also to the substance of

the education that these schools provide. See Milliken,

418 U.S. at 741–42. Each State individually sets the

minimum requirements that public education must fulfill.3

See, e.g., Standards of Learning (SOL) & Testing, Virginia

Dep’t of Educ., https://www.doe.‌virginia.‌gov‌/test‌ing‌/index.shtml

(“The Standards of Learning (SOL) for Virginia Public Schools

establish minimum expectations for what students should know

and be able to do at the end of each grade or course . . . .”);

Georgia Standards of Excellence (GSE), Georgia Dep’t of Educ.,

https://www.‌georgia‌standards.‌org/Georgia-Stan‌da‌rds‌‌/Pages/default.

aspx (setting standards by school subject); Alabama Course of

Study English Language Arts, Alabama State Dep’t of Educ.

(2021), https://www.alabamaachieves.org/wp-con‌t e‌n t‌/‌‌‌ uploa

ds/‌2021‌/0‌8‌/‌2021-Alabama-English-Lan‌gu‌a‌ge‌-Arts-Course-of-Study.

pdf (setting minimum content standards). By setting these minimum

requirements, States establish the baseline education that each child

attending public school receives. See 50-State Comparison High

School Graduation Requirements, Educ. Comm’n of the States (Feb.

3

13

When States set these baseline education requirements,

they establish standards for school curricula, which lay

out which subjects and topics students should learn as

part of a holistic education. See, e.g., Science Standards

of Learning–Adopted 2018, Virginia Dep’t of Educ.,

https://www.doe.‌virginia.‌gov/testing/‌sol/‌standards_‌docs/

science/2018/‌index.‌shtml (listing curriculum framework

per grade).

This Court has “acknowledged the State[s’] power to

prescribe the school curriculum,” but it has also made

clear that States must comply with the Constitution

when doing so. See Epperson, 393 U.S. at 105. “While

study of religions and of the Bible from a literary and

historic viewpoint, presented objectively as part of a

secular program of education, need not collide with

the First Amendment’s prohibition,” this Court has

made clear that “the State may not adopt programs or

practices in its public schools or colleges which ‘aid or

oppose’ any religion.” Id. at 106 (quoting School Dist. of

Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963)).

For instance, a State may not proscribe the teaching

of evolution because the “State’s undoubted right to

prescribe the curriculum for its public schools does not

carry with it the right to prohibit . . . the teaching of a

scientific theory or doctrine where that prohibition is

based upon reasons that violate the First Amendment.”

Id. at 107; id. at 106 (“[T]he First Amendment does not

permit the State[s] to require that teaching and learning

[] be tailored to the principles or prohibitions of any

religious sect or dogma.”). Likewise, a State cannot

require schools that choose to teach evolution to also

teach Creationism with the purpose of advancing a

particular religious belief. Edwards, 482 U.S. at 593

(holding that Louisiana’s Creationism Act violated the

2019), https://reports.ecs.‌org/comparisons/high-school-grad‌ua‌tion‌require‌ments‌-01 (compiling States’ graduation requirements).

14

First Amendment because its “primary purpose . . . is to

advance a particular religious belief” and “to restructure

the science curriculum to conform with a particular

religious viewpoint”).

3. In addition to their curricula-related interests,

States have a strong interest in providing a safe and

nurturing school environment in which students can

learn and mature. See, e.g., Providing a Safe, Non­

discriminatory School Environment for Transgender

and Gender-Nonconforming Students, California

Sch. Bds. Ass’n (Feb. 2014), https://www.‌

csba.org/~/

media/E68E16A652D34EADA2BFDCD9668B1C8F.ashx

(“A safe, nondiscriminatory school environment . . . is

essential to student achievement.”). Providing this

type of safe school environment requires that States

be able to promote inclusivity with respect to, inter

alia, race, religion, sexual orientation, and gender

identity. See Effects of Bullying, stopbullying.gov,

https://‌www.‌stopbullying.gov/‌bully‌ing/‌effects (“Bullying

is linked to many negative outcomes including impacts on

mental health, substance abuse, and suicide.”); Diversity,

Race & Religion, stop‌bullying.gov, https://www.‌stopbu

llying.‌gov/‌bu‌lly‌ing‌/‌‌groups (“Schools and communities

that respect diversity can help protect children against

bullying behavior.”); LGBTQI+ Youth, stopbullying.gov,

https://www.‌stop‌bullying.‌gov/‌bu‌ll‌y‌‌ing/lgbtq (“Lesbian,

gay, bisexual, transgender, queer, intersex, nonbinary

or otherwise gender non-conforming (LGBTQI+) youth

and those perceived as LGBTQI+ are at an increased risk

of being bullied.”). Recognizing the harms of bullying

and the importance of inclusivity, many States have

committed to providing safe and nondiscriminatory

environments for their students.4 These States should

See, e.g., Gender Diversity, Virginia Dep’t of Educ., https://

www.‌d oe.virginia.gov/support/gender-diversity/index.‌s‌h‌t‌m l‌

(“Every Virginia student, regardless of their gender identity, gender

4

15

not be compelled to distribute public funds to entities

that, on the basis of sincerely held religious beliefs,

cannot commit to providing such a nondiscriminatory

environment.

II. Petitioners’ rigid test undermines States’

historic and substantial flexibility in deciding

whether to fund religious education

To meet its mandate under its State constitution to

offer a public education to children in a State that is

too rural to offer traditional local public schools in all

areas, Maine relies on private schools to deliver a public

education.5 The program at issue in this case, therefore,

is not simply about a State’s decision to subsidize private

education. It is about how the State goes about offering

a public education.

Petitioners contend that Maine did not approve the

schools they wish to attend because of the schools’

religious status. Petitioners also insist that Maine should

be denied the option of declining approval based on

the religious use to which the schools put State funds.

Petitioners ask this Court to abandon the use/status

expression, or sexual orientation, has a right to learn free from

discrimination and harassment.”); Gender-Inclusive Schools,

Washington Off. of Superintendent of Pub. Instruction, https://‌www.

k12.wa.us/policy-funding/‌e q‌u ity-and-civil-rights/‌i nformationfamilies-civil-rights-wash‌ing‌ton-sch‌oo‌l‌s/‌gender-inclusive-schools

(“Washington public schools have a responsibility to provide a

safe and nondiscriminatory environment for all students, including

transgender and gender-expansive students.”).

In accordance with its State constitutional mandate, Maine’s

legislature passed a statute that obliges it to “enact the laws that are

necessary to assure that all school administrative units make suitable

provisions for the support and maintenance of the public schools”

so that every school-age child in the State has “an opportunity to

receive the benefits of a free public education.” Me. Stat. tit. 20-A,

§ 2(1); see also Me. Const. art. VIII, Pt. 1, § 1.

5

16

distinction in favor of a rigid test that would apply strict

scrutiny regardless of whether a State funding decision is

premised on religious status or religious use. Pet’rs’ Br.

23–30; id. at 28 (asking this Court to overturn Locke to

the extent Locke did not apply strict scrutiny). Applying

Petitioners’ strict-scrutiny-no-matter-what approach,

including to use-based funding decisions, would not

only erode Maine’s ability to regulate public education in

the State but would also more generally undermine the

“considerable discretion” traditionally afforded to States

“in operating public schools.” Edwards v. Aguillard, 482

U.S. 578, 583–84 (1987).

States offer a wide array of educational funding

programs.6 And, within the “play in the joints” of the

See, e.g., Va. Code Ann. § 23.1-628 (2016) (tuition assistance

grant program); Education Improvement Scholarships Tax Credits

Program, Virginia Dep’t of Educ., https://www.doe.virginia.gov/

school_finance/scholarships_tax_credits/; 50-State Comparison,

Scholarship Tax Credits, Educ. Comm’n of the States (March

2021), https://reports.‌e cs.‌o rg‌/‌c omparisons/scholarship-taxcredits-01 (listing whether States have programs that provide

tax credits to businesses and individual taxpayers who donate

funds to nonprofit scholarship-granting organizations that manage

and distribute donated funds through private school tuition

scholarships); 50-State Comparison, Vouchers, Educ. Comm’n of

the States (March 2021), https://reports.ecs.org/‌comp‌a‌ri‌sons‌/‌‌vouc

hers-01 (listing whether States offer State-funded school voucher

programs that allow students to use public monies to attend

a private school); see also Low Income Students Scholarship,

Kan. Dep’t of Revenue, https://www.‌

ks‌

rev‌

enue.org/prtaxcreditsLowIncome‌

Students.‌

html (providing educational scholarship to

eligible students); MASSGrant & MASSGrant Plus, Office of

Student Fin. Assistance, https://‌www.mass.‌edu/osfa/‌pro‌grams‌/

massgrant‌.‌asp (outlining Massachusetts program that provides needbased financial assistance to undergraduate students); MI Student

Aid, Off. of Postsecondary Fin. Plan., https://www.‌mich‌igan.gov/‌mi‌

stu‌dentaid/0,4636,7-372--481‌21‌8‌-‌-,00.html (offering Tuition Incentive

Program to eligible Medicaid recipients); The New York State

Tuition Assistance Program (TAP), N.Y. Higher Educ. Servs. Corp.,

6

17

Religion Clauses, States make different choices on how

these programs apply to religious education.7 A State

“legislature’s decision not to subsidize the exercise of

a fundamental right,” such as a right arising from the

Free Exercise Clause, “does not infringe the right, and

thus” should not be “subject to strict scrutiny.” Regan

v. Taxation With Representation of Wash., 461 U.S. 540,

549 (1983).

Numerous State constitutions also “embody distinct

views” on funding for religious schools and “deal

differently with religious education” than with education

on other topics. Locke v. Davey, 540 U.S. 712, 721

(2004). A State’s sovereign interests are at their zenith

when the State protects and enshrines a principle in

its constitution, and State courts are accordingly the

https://www.hesc.ny.‌gov/pay-for-college/‌apply-for-financial-aid‌/nystap.html (explaining New York grant that helps eligible residents pay

tuition at approved schools).

See Virginia Accredited School Locator, Private Education,

https://vcpe.org/SCHOOL-LOCATOR (listing accredited schools,

including various religious schools); H.D. 588, 2021 Leg. at 104

(Md. 2021), https://mgaleg.‌mary‌land.‌gov/‌2021RS/bills/‌hb/hb0588f.

pdf (describing and providing appropriations for the “Broadening

Options and Opportunities for Students Today (BOOST) Program,”

which “provides scholarships for students who are eligible for the

free or reduced price lunch program to attend eligible nonpublic

schools”); Resources, Maryland BOOST Scholarship Coal., https://

www.maryland‌

boost.‌

org/resources (providing a list of BOOSTeligible schools, including religious schools); N.C. Gen. Stat. Ann.

§§ 115C-562.1–562.8 (2020), https://www.ncleg.gov/‌

Laws/‌

Gen

eralStatuteSections/‌Chapter‌1‌1‌5C (providing for the Opportunity

Scholarship Program that helps families who make below a

certain amount of income pay tuition at participating nonpublic

schools); K12 Programs: Participating Nonpublic Schools, North

Carolina State Educ. Assistance Auth., https://myportal.‌

ncseaa.

edu/‌

NC/‌

Non‌

public‌

Schools.aspx/ (providing a list of non-public

schools participating in the Opportunity Scholarship Program,

including some religious schools).

7

18

final arbiters of these provisions, subject to federal

constitutional requirements. Michigan v. Long, 463 U.S.

1032, 1041 (1983) (“It is fundamental that state courts

be left free and unfettered by [this Court] in interpreting

their state constitutions.” (quoting Minnesota v. National

Tea Co., 309 U.S. 551, 557 (1940))). As they navigate the

“space for legislative action [that is] neither compelled

by the Free Exercise Clause nor prohibited by the

Establishment Clause,” Cutter v. Wilkinson, 544 U.S. 709,

719 (2005), States should remain free to “achiev[e] greater

separation of church and State than is already ensured

under the Establishment Clause,” subject to the “limit[s]

[of] the Free Exercise Clause,” as contemplated by the

Founders. Espinoza v. Montana Dep’t of Revenue, 140 S.

Ct. 2246, 2260 (2020) (quoting Trinity Lutheran Church

of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017)).

Petitioners’ approach would seriously undermine

States’ freedom to achieve “greater separation of church

and State” in their school funding decisions. Espinoza,

140 S. Ct. at 2260 (quoting Trinity Lutheran, 137 S. Ct.

at 2024). This Court in Locke made clear that States may,

if they wish, decline to fund educational programs that

use State funding for religious purposes, as opposed to

programs that simply have a religious status. 540 U.S.

at 725 (“The State’s interest in not funding the pursuit

of devotional degrees is substantial . . . .”). Since Locke,

courts and legislatures have relied on this use/status

framework. See, e.g., Illinois Bible Colls. Ass’n v.

Anderson, 870 F.3d 631, 639–40 (7th Cir. 2017) (concluding

that Illinois’s oversight of post-secondary education

complied with Locke because “[i]t is only if the Bible

Colleges seek to issue degrees that they must comply

with the standards of the Illinois statute; only when the

colleges venture into the secular sphere is regulatory

oversight required”); Parker v. Hurley, 514 F.3d 87, 103

n.16 (1st Cir. 2008) (noting that, although “this case is not

19

a funding case,” “[a]s here, the government in Locke made

no attempt to regulate the plaintiffs’ conduct”); Freedom

From Religion Found. v. Morris Cnty. Bd. of Chosen

Freeholders, 181 A.3d 992, 1010 (N.J. 2018) (“[T]he

Churches are not being denied grant funds because they

are religious institutions; they are being denied public

funds because of what they plan to do[.]”). But because

Petitioners overlook how each State approaches its

education system differently, Petitioners would have this

Court throw away this nuanced approach.

1. States take diverse approaches to overseeing

education, including education provided by religious

schools. Some States require that private schools

provide certain courses or otherwise offer an education

comparable to public school education.8 Other States

See, e.g., Alaska Stat. Ann. § 14.30.010(b)(1) (not requiring

students to attend a public school if they are “provided an academic

education comparable to that offered by the public schools in the

area”); Ariz. Rev. Stat. Ann. § 15-802(A) (“Every child . . . shall attend

a school and shall be provided instruction in at least the subjects of

reading, grammar, mathematics, social studies, and science.”); Cal.

Educ. Code § 48222 (exempting students from compulsory education

law if they attend a private school that teaches in English and “offer[s]

instruction in the several branches of study required to be taught in

the public schools of the state”); Ga. Code Ann. § 20-2-690(b)(1), (4)

(requiring that private schools whose “primary purpose” “is religious

in nature” “provide[] a basic academic educational program which

includes, but is not limited to, reading, language arts, mathematics,

social studies, and science”); Mass. Gen. Laws ch. 76, § 1 (“[S]chool

committees shall approve a private school when satisfied that the

instruction in all the studies required by law equals in thoroughness

and efficiency . . . that in the public schools in the same town; but

shall not withhold such approval on account of religious teaching

. . . .”); N.Y. Educ. Law § 3204(2) (McKinney 2018) (“Instruction

given to a minor elsewhere than at a public school shall be at least

substantially equivalent to the instruction given to minors of like age

and attainments at the public schools of the city or district where

the minor resides.”); 24 Pa. Cons. Stat. § 13-1327(b) (providing

that children at religious schools can meet the compulsory school

8

20

impose lighter curricula requirements on private schools

or place the burden of providing a baseline education

on children’s parents or guardians, instead of directly

on the private schools. See, e.g., Tex. Educ. Code Ann.

§ 25.086(a)(1) (exempting children from compulsory

school attendance requirements if they “attend[] a private

or parochial school that includes in its course a study of

good citizenship”); Conn. Gen. Stat. § 10-184 (providing

that parents and guardians must “cause [children] to be

instructed in reading, writing, spelling, English grammar,

geography, arithmetic and United States history and in

citizenship” and that parents and guardians can meet this

requirement by sending their children to public schools

or by “show[ing] that the child is elsewhere receiving

equivalent instruction in the studies taught in the public

schools”).

Meanwhile, other States determine which private

schools to regulate based on the schools’ accreditation

or approval status or whether they receive State benefits,

such as tax exemptions.9 Although States indisputably

attendance requirements if the schools teach certain courses but

also providing that “[n]othing contained in this act shall empower

the Commonwealth . . . to approve the course content, faculty, staff

or disciplinary requirements of any religious school referred to in

this section without the consent of said school”).

See, e.g., Conn. Gen. Stat. § 10-18(a)(1) (“All high, preparatory,

secondary and elementary schools, public or private, whose property

is exempt from taxation, shall provide a program of United States

history . . . .”); Ind. Code Ann. § 20-30-1-1 (providing that curriculum

laws apply to public schools and “State accredited nonpublic

schools”); La. Stat. Ann. § 17:11 (“The board shall adopt standards

and guidelines which shall be applied in determining whether a

nonpublic school applying for approval meets the requirements of

a sustained curriculum or specialized course of study of quality at

least equal to that prescribed for similar public schools.”). Other

States exempt private schools from licensure or regulation. Ala.

Code § 16-1-11.2(b) (“Nonpublic schools, including private, church,

parochial, and religious schools . . . are not subject to licensure or

9

21

have the authority to enforce their educational standards,

Petitioners insist that Maine does not have a “compelling

[]or historic and substantial” “interest in ensuring that

the public’s funds go to support only the rough equivalent

of a public education.” Pet’rs’ Br. 36. This argument

ignores States’ fundamental authority to enforce their

educational standards and the integral role States play in

setting and enforcing their own educational standards.10

See Pet’rs’ Br. 15.

2. Just as “training for religious professions and

training for secular professions are not fungible,” Locke

v. Davey, 540 U.S. 712, 721 (2004), so too with secular

and religious State-funded education. States have a

regulation by the state or any political subdivision of the state . . . .”);

Ala. Code § 16-22A-16 (“[N]othing in this chapter shall be construed

to establish state control over curriculum or the selection of

personnel in private or parochial/church schools, nor is this chapter

intended to establish additional regulatory authority over private

or parochial/church schools.”); Fla. Stat. § 1002.42(2)(h) (“It is the

intent of the Legislature not to regulate, control, approve, or accredit

private educational institutions . . . .”).

Some private schools, including some religious schools, do not

meet State educational standards or teach material that undermines

basic science and history curricula. See Leslie Postal et al., Private

schools’ curriculum downplays slavery, says humans and dinosaurs

lived together, Orlando Sentinel (June 1, 2018), https://www.orl

andosentinel.‌com/‌ne‌ws/‌‌ education/os-voucher-school-curriculum20180503-story.‌ht‌ml (explaining that, in a study of textbooks from

three publishers (Abeka, Bob Jones University Press, or Accelerated

Christian Education), the social studies curricula “downplay[ed] the

horrors of slavery and the mistreatment of Native Americans”—with

one book teaching “that ‘most black and white southerners had

long lived together in harmony’ and that ‘power-hungry individuals

stirred up the people’” as part of the civil rights movement—and the

science curriculum “denounce[d] evolution as untrue,” even “telling

students the Biblical Noah likely brought baby dinosaurs onto his

ark”); see also America: Land I Love in Christian Perspective 282–

83 (Abeka, 3d ed. 2016) (teaching that “Satan hatched” the concepts

of evolution and modern psychology).

10

22

substantial interest in deciding for themselves whether

to fund education that “is an essentially religious

endeavor,” id., or that advances religious beliefs. This

interest is particularly substantial when those beliefs

may include views that conflict with States’ policies,

including their commitment to antidiscrimination.11 For

instance, some schools, including one of the schools

Petitioners seek to attend, teach that, in accordance with

their religious beliefs, women should be subordinate to

men. See J.A. 81, 86 (Bangor Christian School “believes

that . . . the husband is to be the leader of the home and

men are to be the leaders of the church” and thus the

school “teaches children that the husband is the leader

of the household”). Other schools enact disciplinary

policies that condemn non-adherence to the school’s

stated religious tenets based on the students’ sexual

orientation or gender identity or expression.12 Indeed,

Maine’s antidiscrimination law, the Human Rights Act (HRA),

for example, applies to “any private school or educational program

approved for tuition purposes,” Me. Stat. tit. 5, § 4553(2-A), and

proscribes discrimination in educational programs “because of

sex, sexual orientation or gender identity, a physical or mental

disability, ancestry, national origin, race, color or religion,” id.

§ 4601. Federal law also includes various provisions protecting

against discrimination. See, e.g., 42 U.S.C. 1981 (“All persons within

the jurisdiction of the United States shall have the same right in

every State and Territory . . . to the full and equal benefit of all laws

and proceedings for the security of persons and property . . . .”); 42

U.S.C. 2000c-8 (“Nothing in this subchapter shall affect adversely

the right of any person to sue for or obtain relief in any court

against discrimination in public education.”). Both the States and

Congress have an interest in ensuring that public funds are not

spent in a manner that contravenes antidiscrimination prohibitions.

And, even under Petitioners’ rigid approach, both State and federal

anti-discrimination laws would remain valid and fully enforceable

against any entity that violated them, including religious schools.

11

See, e.g., J.A. 84 (“An openly gay student who regularly

communicated that fact in the school environment . . . would receive

12

23

some schools refuse to admit candidates who express

their sexual orientation or gender identities, and other

schools discipline or expel students who do so.13

States must not be stripped of the freedom to decline

to provide taxpayer funding to entities that would use

these public funds to spread views inimical to States’ own

policies. See Norwood v. Harrison, 413 U.S. 455, 468–69

(1973) (“Like a sectarian school, a private school—even

one that discriminates—fulfills an important educational

function; however . . . the legitimate educational function

cannot be isolated from discriminatory practices—if

such in fact exist” and “discriminatory treatment exerts a

pervasive influence on the entire educational process”);

Bob Jones Univ. v. United States, 461 U.S. 574, 592

(1983) (“[T]here can no longer be any doubt that racial

discrimination in education violates deeply and widely

accepted views of elementary justice.”).14

counseling, but if the student was ‘entrenched in this is who I am,

I think that it is right and good’ the student would not be allowed

to continue attending [Bangor Christian School] because ‘it clearly

goes against [Bangor Christian School’s] Biblical beliefs’ – even if

the student was celibate and did not engage in homosexual acts”).

See, e.g., J.A. 95 (“Temple Academy will not admit a student

who is homosexual” or “admit a child who lives in a two-father

or a two-mother family”); J.A. 95 (“A child who identifies with a

gender that is different than what is listed on the child’s original

birth certificate would not be eligible for admission to Temple

Academy.”); J.A. 83 (“[P]resenting oneself as a gender other than the

one listed on his or her original birth certificate, whether done on

the school grounds or off school grounds, ‘may lead to immediate

suspension and probable expulsion,’” and if the student “refused

to stop presenting himself or herself as a gender other than that

on said birth certificate after conversations and counseling with

school staff, the student would not be allowed to continue attending

[Bangor Christian School] . . . .” (emphasis added)).

13

If the “play in the joints” of the Religion Clauses had been

eliminated decades earlier, States that opposed segregation before

this Court’s decision in Brown v. Board of Education, 347 U.S. 483

14

24

3. Maine, like any other State, has a fundamental

interest in determining how to best provide a quality

education to all school-age children in the State while

ensuring that its public funds are not used in ways

that are inimical to its own policies. Whether to allow

public funds to further religious instruction is a complex

decision that is intrinsically intertwined with State and

local conditions. This decision is best left to the States.

* * *

This Court has long recognized that a State’s choice

of whether and how to finance religious education is a

“historic and substantial state interest” that falls cleanly

within the “play in the joints” of the Religion Clauses. See

Locke, 540 U.S. at 718, 724 (quoting Walz v. Tax Comm’n,

397 U.S. 664, 669 (1970)). Maine should retain the

flexibility to define what constitutes a public education

in Maine, and Amici States ask this Court to refrain from

adopting a test that would diminish State flexibility in

navigating taxpayer funding of religious schools that

use such funding to advance sectarian purposes. “If any

(1954), would have encountered additional barriers in enforcing

their own constitutions or antidiscrimination laws, see, e.g., Clark

v. Board of Sch. Dirs., 24 Iowa 266, 274–76 (1868) (holding that

Iowa Constitution “fixe[d] the equality of right in all the youths”

and that schools could not be segregated), to the extent that they

would have been pressured to use public funds to send students to

religious schools that discriminated on the basis of race. See, e.g.,

Bekah McNeel, Some Christian schools are finally grappling with

their racist past and segregated present, The Undefeated (Aug. 26,

2020), https://theundefeated‌.com/feat‌ur‌es/‌some-christian-schoolsare-‌finally-grappling-with-their-ra‌c‌i‌s‌t-past-and-segregated-pre‌sent/

(noting that “[m]any” religious “schools were created to preserve

racial segregation”); Kristina D. McKenzie, The desegregation of

New Orleans public and Roman Catholic schools in New Orleans,

LSU Master’s Theses 43–45 (2009) (explaining how parochial

schools delayed desegregation).

25

room exists between the two Religion Clauses, it must be

here.” Id. at 725.

CONCLUSION

This Court should affirm the decision below.

Respectfully submitted.

Mark R. Herring

Attorney General

Erin B. Ashwell

Chief Deputy

Attorney General

Michelle S. Kallen

Acting Solicitor General

Counsel of Record

Laura H. Cahill

Assistant Attorney General

Rohiniyurie Tashima

John Marshall Fellow

Office of the Virginia

Attorney General

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7704

solicitorgeneral@oag.state.va.us

October 29, 2021

Counsel for Amici States

Rob Bonta

Attorney General

State of California

Kathleen Jennings

Attorney General

State of Delaware

Maura Healey

Attorney General

Commonwealth of

Massachusetts

Keith Ellison

Attorney General

State of Minnesota

Hector Balderas

Attorney General

State of New Mexico

Letitia James

Attorney General

State of New York

26

Ellen F. Rosenblum

Attorney General

State of Oregon

Karl A. Racine

Attorney General

District of Columbia

Robert W. Ferguson

Attorney General

State of Washington