Today, the Union of Orthodox Jewish Congregations of America (Orthodox Union), the nation’s largest Orthodox Jewish umbrella organization, applauded the U.S. Supreme Court’s ruling declaring unconstitutional the State of Maine’s policy that prohibits parents from using state tuition assistance payments at religious high schools.  The ruling is in the case of Carson v. Makin with the majority opinion (6-3) authored by Chief Justice Roberts.

Maine provides tuition assistance payments for all families with school-age children who live in locales that do not operate their own high schools.  Under the program, parents may choose the accredited (or otherwise approved) school their child attends and the state will pay the tuition. But, since 1980, Maine has prohibited parents from choosing to enroll their children in “sectarian” high schools under the program. This discriminatory policy has been challenged in court twice (1999 and 2004) and the U.S. Court of Appeals upheld the policy.  The new lawsuit was brought now in the wake of the U.S. Supreme Court’s recent rulings in Trinity Lutheran v. Columbia (2017) and Espinoza v. Montana (2020).  In both of those rulings, the Supreme Court declared unconstitutional state aid programs that excluded the participation of religious institutions because of their “status” as religious entities.

In striking down Maine’s exclusionary policy the Supreme Court simply and forcefully stated: “The state pays tuition for certain students at private schools – so long as the schools are not religious.  That is discrimination against religion.”

(The Orthodox Union participated in the case by filing a friend-of-the-court brief co-authored by attorneys Gordon Todd and Daniel Feith of the Sidley & Austin law firm, Professor Michael Avi Helfand of Pepperdine Law School and Nathan Diament, Executive Director of the Orthodox Union Advocacy Center.)

Orthodox Union Executive Director for Public Policy Nathan Diament stated:
“Today’s ruling by the Supreme Court is the culmination of decades of determined advocacy by the Orthodox Union and our partners who advocate for religious liberty and parental choice in education.  The essential promise of the First Amendment’s religion clause is to guarantee religious freedom in the United States by requiring government neutrality toward religion. A state discriminating against religion – as Maine did in its tuition assistance program – is just as unconstitutional as a state promoting one particular religion. In today’s ruling, the Supreme Court has advanced religious liberty for all Americans of all faiths. ”

Maury Litwack, Executive Director of the OU’s Teach Coalition stated:
“This watershed Supreme Court ruling opens the door for our advocacy efforts at the state and local levels in key places like New York, New Jersey, Florida, Pennsylvania and elsewhere.  OU Teach Coalition leaders will be proactively pressing for policymakers in all these states to ensure that any state and local education funding programs are fully available and accessible to nonpublic schools and their families as the Supreme Court has clearly mandated.” 

Orthodox Union President Mark (Moishe) Bane stated:
“All parents and families should have the right to make the best choice for their children’s education. By participating in this case, the Orthodox Union hopes to protect all families against institutional, anti-faith discrimination not just in Maine and not only in school funding programs, but in all states and programs that attempt to favor secularism to the exclusion of faith.”

Read the friend-of-the-court brief in which the Orthodox Union participated here