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By:  Edmund O’Meally, Esquire and Joseph McCarter, Summer Associate

In a recent decision, the Supreme Court reaffirmed its position that states may not deny funds meant to subsidize private education tuition from families that wish to use those funds to send their children to religious private schools.

The case was Carson as next friend of O.C. v. Makin, 142 S. Ct. 1987 (2022), and it involved a Maine law that subsidized private school tuition for families who lived in rural school districts that did not provide free secondary education.  Maine would not, however, allow families to receive those subsidies if they intended to send their children to a religious private school.

The Supreme Court held that denying families subsidies that were generally available for private education solely because a school is religious amounts to religious discrimination.  The Court further held that when families independently choose to use private education subsidies at a religious school, the subsidy program does not violate the Establishment Clause, which prohibits the government from promoting religion.  This is because the government has no role in a family’s decision to use the subsidy at a religious school.

The Court noted that its holding was consistent with its recent holdings in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) and Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).  In Trinity Lutheran, the Court struck down a Missouri policy that disqualified religious organizations from receiving grant funds that were generally available to organizations that surfaced their playgrounds using rubber from recycled tires.  In Espinoza, the Court struck down a provision in the Montana constitution that disqualified religious schools from receiving scholarship funds that were generally available to other schools.

The Court maintained that its holding in this case would not require state governments to subsidize religious education.  “A State need not subsidize private education,” the Court said, “but once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Edmund O’Meally is Chair of PK Law’s Labor, Employment and Education department, He has over 37 years of experience working primarily with superintendents, boards of education, private schools, and private sector employers for over 36 years on a wide-variety of matters including collective bargaining, employment litigation, Title IX, civil rights litigation, construction and procurement issues, and Open Meetings Act compliance. Mr. O’Meally can be reached at 410-339-6757 or

Joseph McCarter is a Summer Associate with Pessin Katz Law, P.A. He can be reached at 410-769-6143 or