The Volokh Conspiracy

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May School Choice Programs Categorically Exclude Religious Schools (but Include Private Secular Schools)?


Yes, said the First Circuit, upholding Maine's exclusion of religious schools; no, said the Second Circuit, striking down Vermont's. The cases appear to turn on whether the exclusion is based on "religious status" of the schools or "religious use" of the funds—a pretty gossamer distinction, if you ask me (see Justice Gorsuch's concurrence in Trinity Lutheran Church v. Comer (2017)). The Institute for Justice's supplemental brief in the challenge to the Maine case (Carson v. Makin) lays the matter out nicely; it will be interesting to see what the Court does with this.