The New Era of Freedom in Education

In the wake of landmark decisions on abortion and the Second Amendment it is easy to
overlook the United States Supreme Court’s equally important decision on school choice
in Carson v. Makin. The facts of this case are simple. The State of Maine is one of the
most rural states in America. Its school age population is scattered throughout the state
making it uneconomical to build public secondary schools. Rather than increasing the
funding to build and operate these schools, the Maine legislature enacted a tuition
assistance program that paid up to $11,773.92 per student for the 2021-22 school year so
that a student could attend a private secondary school.


To be eligible to participate in the program a private school had to meet two basic
requirements: (1) It had to be accredited and (2) it had to be nonsectarian. The latter
requirement meant that students attending religious schools could not benefit from the
same benefit paid to non-religious schools. Several parents, including David Carson,
sued alleging unconstitutional religious discrimination. Although they lost at trial and
in the lower appellate court, the United States Supreme Court reversed the judgment
and remanded the case back to the lower courts for “further proceedings consistent”
with the court’s opinion.

In its analysis of the Maine statutes and the First Amendment the court made several
important points.

Writing for the majority, Chief Justice Roberts made it clear that the court was not
breaking new ground. He cited several recent cases including another tuition subsidy
case, Espinosa v. Montana Department of Revenue (2020). Quoting Espinosa, the
court wrote that “a State need not subsidize private education, but once a State decides
to do so, they cannot disqualify some private schools solely because they are religious.”
The court continued “[B]y “conditioning the availability of benefits in that manner,
Maine’s tuition assistance program – like the one in Trinity Lutheran – “effectively
penalizes the free exercise” of religion.”

Roberts reiterated the court’s previous holdings, especially in Espinosa, Trinity
Lutheran and Lyng vs. Northwest Indian Cemetery Protective Assn. (1988). In these
cases the court found that restrictions such as those found in Maine and Montana
violated the Free Exercise Clause of the First Amendment which protects against
“indirect coercion or penalties on the free exercise of religion, no just outright

There are several important takeaways for advocates of school choice in California.

School Choice does not violate the constitution.

Perhaps the most interesting aspect of this case is what the court does not say. It does
not question the constitutionality of a state’s decision to aid students’ attendance at
private, non-government schools. Thus, we in California are free to amend our state
constitution and our statutes to fund attendance at private schools, both secular and

The Educational Freedom Act Initiative (“EFA”) fully complies with the
United States Constitution.

Like the Maine tuition assistance program, the EFA permits public funds to be used to
pay tuition for students at private schools. The EFA specifically approves the use of
education savings accounts at participating, accredited religious schools. In the wake of
Carson v. Makin, such use is not only constitutional, but also constitutionally mandated
if chosen by a parent.

Compared to Maine’s almost $12,000 per year in tuition assistance, the
EFA’s mandate of $15,000 per year student is both sensible and fiscally

I was pleasantly surprised to discover that Maine is currently providing almost $12,000
in annual tuition assistance. The EFA mandates a starting base annual scholarship of
$15,000 a bargain in California where we spend an average of $21,000 per year, per

Even more surprising is the fact that this assistance is not “means-tested.” In other
words, in a state widely regarded as politically liberal, every student is eligible for
assistance regardless of income, assets, race ethnicity or economic status. This confirms
the findings of several national polls which show that support for school choice
transcends party and even political ideology. Like Maine’s program, the California
Educational Freedom Act initiative discriminates against no one.

The Free Exercise Clause of the First Amendment likely bars the state from
denying participation in tuition assistance programs for failure to teach
courses that violate the recipient’s religious principles.

The greatest concern of school choice advocates is that acceptance of tuition assistance
from the state will trigger compliance with curriculum mandates such as CRT, LGBTQ
courses and other course content. The Educational Freedom Act specifically prohibits
the imposition of such mandates as a condition for participation in the Education
Savings Account plan. Chief Justice Roberts’ opinion suggests that we are on very solid
constitutional ground.


The proponents of the Educational Freedom Act initiative will resubmit our petition to
the California Attorney General by the end of the year. We plan to gather signatures
again, in January 2023. Armed with our love of liberty and the Constitution of the
United States of America, let us now wage the battle for the future of our children and
the future of our wonderful country.


Michael T. Alexander
California School Choice Foundation

Californians for School Choice

Carson v. Makin, (2022)

Espinosa v. Montana Department of Revenue (2020)

Trinity Lutheran Church of Columbia v. Comer (2017)

Lyng v. Northwest Indian Cemetery Protective Assn. (1988)

RECEIPT OF PUBLIC FUNDS from Maine School Units Pursuant to 20-A
MRSA Chapter 117, Sub-chapter 2