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In a landmark 2022 ruling, the U.S. Supreme Court said states can鈥檛 exclude faith-based schools from voucher programs because they practice religion. That opinion, , turbocharged the across red states. 

Now Christian schools in Maine, where the case originated, want the courts to go even further. 

They object to a state law that requires them to accept all students, including those who don鈥檛 follow their religion, have disabilities or identify as LGBTQ. The U.S. Court of Appeals for the First Circuit heard the case in January.

鈥淭his moral panic over letting religious schools be religious 鈥� even if they鈥檙e receiving tuition subsidies 鈥� needs to end,鈥� said Adele Keim, senior counsel with the Becket Fund for Religious Liberty. The nonprofit law firm represents St. Dominic Academy in Auburn, Maine, which sued over the rule along with CrossPoint Church, which operates . 

The nondiscrimination law, schools say, prevents them from participating in 鈥渢own tuitioning鈥� 鈥� a program that picks up a student鈥檚 private school costs if there鈥檚 no public option in their community. 

The state argues that it鈥檚 only asking religious schools to comply with the same rules public and secular private schools follow.

鈥淭he schools are asking for special treatment,鈥� said Alexandra Zaretsky, litigation counsel for Americans United for Separation of Church and State. The nonprofit advocacy group submitted a brief to the court in support of Maine鈥檚 position. 鈥淚t should be the state鈥檚 prerogative to say 鈥業f you’re getting funding from the state, then you have to follow our generally applicable laws.鈥� 鈥�

Most states with voucher programs already allow private and religious schools to deny admissions to whomever they want. Maine is an outlier 鈥� a blue state that would prefer to keep religious schools out of the tuitioning program. 

The debate reflects a heightened concern among advocates for public education that the nationwide push for private school choice will further isolate students.

鈥淩eligious schools getting the taxpayer-funded ability to pick their own kids is one real goal of this school voucher push 鈥� a feature, not a bug,鈥� said Joshua Cowen, an education professor at Michigan State University. Last year, he released a book that delves into the way culture war battles have fueled private school choice.

In March, in opposition to Texas鈥� new ESA law, which passed in April with help from President Donald Trump. The president of the state House, urging them to vote yes. Earlier in that , which lasted nearly 24 hours, Laura Colangelo, executive director of the Texas Private School Association, said private schools could deny admission to a child whose mother wasn鈥檛 married when she got pregnant.

says the state can鈥檛 force a school to modify policies tied to their religious beliefs. If the Maine case goes the religious schools鈥� way, such rules would be 鈥渓ess necessary,鈥� Cowen said.

鈥淚鈥檓 a Christian man. I sing in a church choir. I can still say what these schools want to do is wrong,鈥� he said. 鈥淭hese guys just want a blank check to do what they want, even if it鈥檚 leaving some kids and families out.鈥�

A 鈥榮ource of balkanization鈥�

The issue was also at the forefront of Oklahoma鈥檚 legal fight to open a religious charter school, a debate that both supporters and opponents of the idea expect to eventually wind up back in court.

In April, the U.S. Supreme Court tied 4-4 on the question of whether charter schools are private and can explicitly teach religion. The deadlock allowed the Oklahoma Supreme Court鈥檚 decision against St. Isidore of Seville Catholic Virtual School to stand. Though promising not to turn any students away, school leaders said they would only call students by their birth names and pronouns and would refer students with disabilities to their local district if accommodating their needs disrupted class.

Some experts see the prospect of sectarian charter schools as a threat to American values. 

鈥淧ublic education, including public charter schools, is one of the few things that holds our society together,鈥� said Richard Kahlenberg, who directs the American Identity Project at the Progressive Policy Institute, a think tank. 鈥淚t’s the common experience for 90% of American schoolchildren.鈥� 

鈥淚f you suddenly have 鈥� Christian students going to their schools, Jewish students going to theirs, Muslim students going to theirs, that means fewer Christian students come to know Jewish and Muslim students as classmates and friends,鈥� Kahlenberg said in a panel discussion prior to the Supreme Court鈥檚 ruling in the Oklahoma case. 鈥淥ur public schools are already highly segregated by race and class, and this would just layer on religion as a new source of balkanization.鈥� 

鈥業nfinite number of options鈥�

In Utah, the state鈥檚 teachers union sued last year over a new ESA program because they say it 鈥渄iverts鈥� education funds to schools that discriminate in admissions. In April, a state district court judge ruled the program unconstitutional.

鈥淲e firmly believe, and a judge agreed, that public money belongs in public schools,鈥� said Hailey Higgins, communications director for the Utah Education Association.

To choice supporters 鈥� and the Trump administration 鈥� the more private schools that cater to families鈥� individual preferences, the better. That鈥檚 the argument that the Institute for Justice, a libertarian law firm, along with parents currently in the program, made in to the Utah Supreme Court.

When she learned about the lawsuit, Amanda Koldewyn, an Ogden mother of four, said she felt 鈥渁nger, frustration and panic.鈥� Her 12-year-old son, who has autism, was getting sick from anxiety in public school and was 鈥渂ored out of his mind鈥� in class. The Utah Fits All scholarship allowed her to find a curriculum where he can move at his own pace and pay a private math tutor for her daughter. She hopes to use the program for her 5-year-old twins this fall as well.

鈥淚 can actually get the resources that aren’t just passable, but are fine tuned to what my children need,鈥� she said. 鈥淚 get really, really angry at those few teachers who think public school is the only way.鈥�

The debate over whether religious schools in choice programs can refuse to serve families who don鈥檛 share their values is also playing out with younger students in Colorado. The state鈥檚 universal preschool program requires participating schools to accept students from families regardless of parents鈥� housing status, income level, or religion, sexual orientation or gender identity. 

Two over the regulation, saying they couldn鈥檛 participate in the program because their faith prohibits them from accepting LGBTQ students or parents. That means the state doesn鈥檛 pick up the cost for students in those schools. The case is now before the U.S. Court of Appeals for the 10th Circuit. 

In other countries, it鈥檚 far more common for students to attend religious schools at the government鈥檚 expense. , fully funds Catholic school districts. In European countries like the Netherlands, attend government-funded religious schools.

Many countries place on those schools that choice advocates in the U.S. would resist, explains Sam Abrams, director of the International Partnership for the Study of Educational Privatization at the University of Colorado, Boulder. Religious schools often follow the same criteria for student admissions as public schools, teach to national standards and submit to monitoring visits.

鈥淚t鈥檚 all regulated, and you can鈥檛 screen kids out,鈥� he said, noting that in recent school choice cases, the conservative justices on the Supreme Court never referenced how these systems work in other countries. 鈥淭hey’re not going to talk about the European system. It forces them to acknowledge that what [the U.S.] is doing is very different.鈥�

Maine鈥檚 demands on religious schools depart from the way the tuitioning program used to operate. For decades, Catholic and other religious schools were 鈥渨illing and active participants in this program,鈥� Keim said. That ended in the 1980s 鈥� what she called the 鈥渟hag carpet-era view of the Establishment Clause鈥� 鈥� when the legislature passed a law excluding religious schools.

鈥淔or 25 years, Maine families have been knocking at the courthouse door and asking the federal courts to let them back in,鈥� Keim said. 

In 2021, as the Carson case made its way to the Supreme Court, lawmakers amended the to prohibit discrimination against students in all private schools receiving public funds, including religious schools. The real 鈥減oison pill,鈥� she said, is a provision that requires religious expression without discrimination. 

鈥淚f they鈥檙e going to allow a Catholic pro-life club,鈥� she said, 鈥渢hey鈥檙e going to have to allow a Catholic pro-choice club.鈥�

If the schools prevail in court, St. Dominic鈥檚 won鈥檛 be accepting any high school students. While the pre-K through eighth grade school will still operate, the this year due to low enrollment. 

鈥淚鈥檓 sure the picture would be different,鈥� Keim said, 鈥渋f they had been allowed to receive these subsidies over the long term.鈥�

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