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   From: nobody@yamn.paranoici.org   
      
   Biden administration fails to get case tossed on technicality   
      
   The Supreme Court looked likely on Wednesday to strike down a Maine   
   law that excludes religious schools from a voucher program,   
   strengthening parental rights to use taxpayer dollars at faith-based   
   schools.   
      
   The Biden administration is trying to get the case tossed on a   
   technicality to protect its teachers’ union allies. A majority of   
   the Court was unpersuaded by the attempt during oral arguments   
   Wednesday and viewed Maine’s law as biased against religion.   
      
   "[One] neighbor says, ‘We’re going to send our children to secular   
   private school.’ They get the benefit. The next-door neighbor says,   
   ‘Well we want to send our children to a religious private school.’   
   They don’t get the benefit. That's just discrimination on the basis   
   of religion right there at the neighborhood level," Justice Brett   
   Kavanaugh said.   
      
   Progressives are facing multiple prospective defeats on priority   
   issues at the Court this term. The justices have signaled that they   
   could overturn Roe v. Wade and expand the right to carry concealed   
   firearms by June of next year. Despite the rightward trend, interest   
   in court packing seems to be dissipating among establishment   
   Democrats after President Joe Biden’s judicial reform commission   
   refused to endorse court expansion or term limits in its final   
   report.   
      
   School choice advocates are backing the attack on Maine’s law amid   
   mounting frustration with public schools. Long-term suspension of   
   in-person instruction and curricula changes on sensitive subjects   
   like race and sex are fueling a nationwide spike in homeschooling   
   and private school enrollment. The nation’s largest teachers’ unions   
   filed amicus briefs supporting Maine’s law, and they’ve been   
   outspoken in opposing vouchers on the grounds that they siphon   
   taxpayer dollars out of public schools and dilute labor power.   
      
   Maine offers tuition assistance to families in the sparsely   
   populated northern and western regions of the state, where some   
   school districts cannot maintain a public high school. Affected   
   students can pick a different public school, or enroll in a private   
   school on the state’s dime. Under Maine law, eligible private   
   schools must be non-sectarian and cannot evangelize their students   
   in a particular faith.   
      
   The two plaintiff families in Wednesday’s case want to use state   
   money to send their children to religious schools, Temple Academy in   
   Waterville and Bangor Christian School. The Court said in 2017 and   
   again in 2020 that faith-based institutions can’t be disqualified   
   from government programs available to everyone just because of their   
   religious affiliation. Maine tried to distinguish its program from   
   those cases Wednesday by saying its law aims to prevent taxpayer   
   financing of formal religious instruction.   
      
   That distinction didn’t get much traction with the justices. What   
   matters, several justices said, is that the states can’t disfavor   
   faith-based groups once it makes a public benefit available to all-   
   comers.   
      
   "Our case law suggests that discriminating against all religions …   
   is discriminatory just as it is discriminatory to, say, exclude the   
   Catholic and the Jewish and include the Protestant," Kavanaugh said.   
      
   Several justices were bothered that Maine allows a few nominally   
   religious private schools to participate in the voucher program.   
   Despite their religious affiliation, those schools are eligible for   
   vouchers as long as they don’t evangelize or lead their student   
   bodies in regular liturgy. Chief Justice John Roberts said different   
   religions place different priorities on evangelizing and communal   
   worship, so Maine’s policy penalizes a particular set of religious   
   practices.   
      
   "We have said that that is the most basic violation of the First   
   Amendment religion clauses," Roberts told Maine deputy attorney   
   general Christopher Taub.   
      
   The Biden administration and the Court’s liberal justices looked for   
   ways to toss the case or limit its reach.   
      
   Justice Department lawyer Malcolm Stewart noted that Temple Academy   
   and Bangor Christian have not indicated that they will participate   
   in Maine’s tuition assistance program. He said the schools   
   themselves wouldn’t have a basis for suing unless they affirmatively   
   declared they will take state money. It would be strange, he said,   
   to let parents bring a suit when the schools are undecided. He   
   pushed the Court to dismiss the case on that basis, but a majority   
   of the Court did not appear persuaded.   
      
   Justice Elena Kagan seemed to say the Court could limit its decision   
   to the unique facts of Wednesday’s case. Public education is   
   available almost everywhere in the country, Kagan said. The only   
   reason Maine crafted this program is to accommodate "a very small   
   number of students living in isolated areas," she said.   
      
   A decision focused on the facts on the ground in Maine would limit   
   its precedential value for future voucher cases, a hollow school   
      
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