At issue in the case is whether the state, which pays for some students to attend nonsectarian private schools, should also pay tuition for students to attend religious schools.

Transcript

DEBBIE ELLIOTT, HOST:

Today, the U.S. Supreme Court hears arguments in a case that could greatly expand state aid to religious schools. On one side are proponents of the school choice movement, and on the other is the state of Maine, which is defending the way it provides what it calls a public education for children in a large rural state with a relatively small population.

Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: In recent years, the Supreme Court's conservative majority has whittled and sometimes hacked away at the Constitution's wall of separation between church and state. And that is nowhere more apparent than in cases dealing with religious schools. In a series of cases, the court has upheld state-funded voucher programs for religious schools in Ohio. And in 2020, in a case from Montana, the court at least partially rendered ineffective state constitutions that ban state aid to religious schools. Now comes a new wrinkle presented in a case from Maine, a rural state with 180,000 schoolchildren spread out over a relatively large area, and where more than half the school districts don't even have a public high school.

Maine has dealt with that problem this way. A hundred and seventy-five thousand of its students either go to their local public school or the state contracts with a nearby public school to take them and provides transportation if necessary. And then there's a third category, which is what this case is all about. When it comes to public education, Maine is something of a unique animal, with only Vermont having a similar program. The state has 11 private schools - all non-sectarian - most of them on the green in their town centers - attended by a total of about 4,800 kids - the vast majority of them from districts that have no public high school.

According to the state, it pays the tuition for between 82% and 99% of the students attending these private, nonsectarian schools. And the amount it pays is the average cost of educating a public school student in the state - a bit over $11,000 a year. The state pays the same amount for an additional 200 youngsters attending other approved nonsectarian private schools, including one student right now who attends a prep school out of state. But what it does not do is pay tuition for religious schools.

Two families have challenged this system, contending that their children should be able to attend religious schools and have the state pay their tuition too.

Amy Carson's daughter went to Bangor Christian School, which advertises itself as biblically based with religion, quote, "integrated through all content areas" - Amy Carson.

AMY CARSON: They have Bible class every morning. It's the first class of the day. And Thursday is chapel day. Those are not things that are optional for kids to choose. If you choose to send your kids there, that's what they learn.

TOTENBERG: And for that reason, the State of Maine says Bangor Christian and other religious schools are not eligible for state tuition payments. Maine law provides tuition assistance only to public schools and those nonsectarian private schools that provide what the state calls substantially the same education provided in the public schools.

Attorney General Aaron Frey.

AARON FREY: Instruction that inculcates, instills, imbues a particular religious view through its materials, through its teachings, prescribing that there's one religion above others, that there are certain ways of the world that are consistent with that religion and that religion alone - that is what the state has determined - that it's not consistent with a public education.

TOTENBERG: But lawyer Michael Bindas, representing the Carsons and another family, will tell the Supreme Court that Maine's policy amounts to discrimination based on religion and that it violates the family's right to the free exercise of their religion.

MICHAEL BINDAS: Maine provides tuition to families to use at the school of their choice, whether it's public or private, in-state or out-of-state. But there is one thing that the state prohibits, and that is a parent's choice of religious school. Once the state provides a benefit in the form of tuition to use at private schools, it has to remain neutral as between religious and non-religious private schools.

TOTENBERG: Maine replies that its tuition program is not a school choice program. It's not a voucher program. It's not a scholarship tax benefit program. Maine says this is a delivery system to aid students who have no public school in their district and no public school that the state is able to contract with for the children to attend.

Attorney General Frey says the state isn't discriminating against religion. It's only in the market for a public education or its equivalent in a nonsectarian private school.

FREY: This is doing the best we can under the rural nature of Maine to make sure that all children in Maine have a doorway to access a public education.

TOTENBERG: Indeed, as of next year, he points out, under Maine law, the private, nonsectarian schools that get tuition payments must have the same curriculum as the public schools.

Lawyer Michael Bindas doesn't deny that the schools at the center of this case are religious.

BINDAS: This case is about whether the U.S. Constitution allows a state to bar a parent's choice of school simply because the school is religious. We believe that parents should be free and trusted to choose the schools that are best for their kids.

TOTENBERG: Maine counters that many of the state's laws and regulations governing public schools and the private schools that do qualify for tuition payments - many of those regulations run counter to the teachings of the religious schools in Maine - laws, for instance, that ban employment discrimination against gay teachers, students, the children of same-sex couples and children of other faiths. Michael Bindas dodges that issue, saying it's not presented in this case. But for the religious schools, accepting the state's money may be a deal-breaker precisely for this reason.

It's not at all clear from the record in this case that the schools are willing to accept state tuition payments if the state can regulate them in the same way that nonsectarian private schools are regulated. But a decision in favor of the parents could open up a whole new pathway for parents to get taxpayer funds for religious schools. That is the ultimate goal of the school choice movement. And the current Supreme Court supermajority just may lend a helping hand.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF AXEL KUHN TRIO'S "HYPNOTIC BELLY DANCE") Transcript provided by NPR, Copyright NPR.