(For a full discussion of this U.S. Supreme Court appeal with IJ Senior Attorney Michael Bindas and IJ Maine school choice client Amy Carson, click here: https://www.youtube.com/watch?v=TeMoGkTibdU)
May states bar parents from participating in a student-aid program because they send their children to schools that provide religious instruction, or does that violate the Constitution? That is the question the Institute for Justice (IJ) has asked the U.S. Supreme Court to resolve as it appeals a federal court ruling that discriminates against parents who select such schools.
In 2020, the Institute for Justice earned a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. The Court held that discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.
Under Maine’s “tuitioning” program, which was created in 1873, the state pays for students who live in towns that do not maintain a public school to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Until a flawed legal opinion by the state’s attorney general in 1980, parents were free to exercise their independent choice to select religious schools as one of their options. Now, however, the school that parents select for their child must be “nonsectarian,” which the state interprets to mean a school that does not provide religious instruction.
The families who filed the lawsuit qualify for Maine’s tuitioning program in all other respects, but they are either excluded from participating only because they chose a religious school for their child or they are participating in the program but have been forced to select a non-religious school, even though that is not the school they believe is best for their child. Such discrimination is both unfair and unconstitutional.
IJ and its co-counsel in the case, First Liberty Institute (FLI), argue not only that the U.S. Supreme Court has given the green light to include religious options in school choice programs, but also that states cannot exclude such options in the name of preventing “religious uses” of program funds. Barring parents from choosing such options when providing families with school choice violates the U.S. Constitution’s Free Exercise and Equal Protection Clauses.
IJ represents families from small “tuitioning towns” in Maine—Glenburn and Palermo. After the U.S. District Court of Maine ruled against the parents in 2019, they appealed to the 1st U.S. Court of Appeals.
While on appeal, the U.S. Supreme Court decided Espinoza v. Montana¸ a case litigated by the Institute for Justice in which the Court struck down similar restrictions in Montana’s school choice program under the First Amendment’s Free Exercise Clause. Despite the Supreme Court’s ruling, however, in October 2020 the 1st Circuit affirmed the lower court and held that Maine’s discrimination against religious educational options can continue, explaining that Maine does not discriminate based on the religious status of schools—which Espinoza held unconstitutional—but rather on the religious use to which tuition assistance funds might be put there. In other words, the federal appeals court ruled that although participating schools can be religious in name, if they do religious things—i.e., teach religion—Maine can prohibit parents from selecting them.
Like discrimination based on religious status, barring parents from picking schools that do religious things violates the Free Exercise Clause. Accordingly, in February 2021, the families, represented by the Institute for Justice and FLI, appealed their case to the U.S. Supreme Court, seeking to vindicate their right, once and for all, to select the best school for their children, whether the school is public or private, religious or non-religious. On July 2, 2021, the Court accepted the case and attorney from the Institute for Justice will argue it in the 2021-22 Supreme Court term.
Simply put, religious discrimination is religious discrimination. By allowing nominally religious schools to participate but excluding schools that actually provide a religious curriculum, Maine is making governmental decisions about how religious is too religious. Government should not have that power. It violates the Religion Clauses and Equal Protection Clause of the U.S. Constitution. In student-aid programs like Maine’s, parents—not the government—choose the schools their children will attend. If parents believe a school that provides religious instruction is best for their child, the state should not be allowed to deny them that choice.
There is a significant split of authority among courts across the nation on this issue. The 6th and 10th U.S. Circuit Courts of Appeals have held that government may not bar families participating in student-aid programs from choosing schools that provide religious instruction. The Vermont Supreme Court and now the 1st U.S. Circuit Court of Appeals, however, have upheld such religious exclusions.
Maine’s Tuition Assistance Program and Its “Sectarian” Exclusion
In Maine, every school district has a legal duty to provide an education for its residents through the 12th grade.
Many of Maine’s public school districts, usually because of their rural nature, have too few students to warrant maintaining their own K-12 schools. Paying tuition to the public or private school of the parents’ choice is Maine’s common-sense solution to ensure that towns with small populations can offer an education to all their children.
Under Maine law, parents who live in towns without public high schools, and that do not contract with a single high school to educate all the students in the town, have the right to select the school that best suits their children’s educational needs. The town then pays tuition (capped at the average cost of educating a student in Maine’s public high schools) to the public or private school that the parents choose. Parents who live in “tuitioning towns” are free to pick a school that is either public or private, in-state or out-of-state—but they are prohibited from participating in the tuition-payment system if they choose a school the state deems "sectarian.”
For well over a century, parents in Maine could choose “sectarian,” or religious, schools for their children. But in 1980, the state’s Attorney General issued an opinion concluding that including religious choices in parents’ menu of options violated the federal Constitution’s Establishment Clause. As a result, the Maine Legislature in 1981 passed the current law that excludes religious schools from the tuitioning system—a law prohibiting towns from paying tuition to any “sectarian” school, which the state defines as a school that provides religious instruction. Maine’s law thus singles out families who choose religious schools, and only those families, for discrimination.
The Attorney General’s opinion, though, turned out to be erroneous. In 2002, the U.S. Supreme Court decided Zelman v. Simmons-Harris, an IJ case in which the Court declared in no uncertain terms that there is no Establishment Clause violation if families participating in a school choice program are permitted to freely and independently select private religious schools from amongst an array of both religious and nonreligious options. In other words, school choice programs like Maine’s can unquestionably include religious options without running afoul of the Establishment Clause. Yet the state’s discrimination against religion continues.
IJ’s Previous Efforts to End Religious Discrimination and Vindicate Parental Liberty
In 1997, IJ filed Bagley v. Town of Raymond, a lawsuit that challenged the exclusion of religious schools from Maine’s school choice program. The Maine Supreme Judicial Court upheld the exclusion in 1999, and the U.S. Supreme Court declined to review the decision.
In September, 2002, just months after the U.S. Supreme Court declared that religiously neutral school choice programs that allow parents to freely choose among a wide array of educational options—including religious schools—are permissible under the federal constitution, IJ filed Anderson v. Town of Durham, again challenging Maine’s prohibition against paying tuition on behalf of families that choose religious schools. Sadly, in 2006, the Maine Supreme Judicial Court again rejected IJ’s claims. And again, the U.S. Supreme Court declined to review the decision.
As the nation’s leading legal advocate for school choice, the Institute for Justice refused to give up on Maine’s parents and, with the help of the First Liberty Institute, once again seeks to vindicate their First Amendment right to free exercise of religion and their right to equal protection of the law. This third Maine case is inspired by the U.S. Supreme Court’s 2017 and 2020 decisions in Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue. In those cases, the Court held that a state may not exclude persons or institutions from a public benefit program—including, in Espinoza, a school choice program—on the basis of the person or institution’s religious status, or identity.
Maine insists that its sectarian exclusion turns not on the religious status of the school that parents select, but rather the religious use to which tuition assistance funds might be put there. IJ maintains that such “use-based” discrimination is just as odious as “status-based” discrimination.
In two concurring opinions, Associate Justice Neil Gorsuch has written on the absurdity of the so-called “status/use” distinction. In Trinity Lutheran and Espinoza, he explained that status and use are really just two sides of the same coin. Discriminating against people who are Jewish or Catholic or Muslim is no different than discriminating against people who do Jewish or Catholic or Muslim things. And at the end of the day, the Free Exercise Clause prohibits discrimination against religion, period.
With this case, IJ intends to open the full range of educational options to Maine parents who live in tuitioning towns and to establish that states may not exclude religious options from publicly funded school choice programs, whether based on a school’s religious “status” or the religious “use” to which a family would like to put its tuition benefit.
IJ and FLI represent sets of parents from Maine. Dave and Amy Carson are residents of Glenburn, Maine, and have been since they were married. Dave and Amy have sent their daughter, Olivia, now a senior, to Bangor Christian Schools—which serves kids from K-12 grades—for her entire school career. The Maine Department of Education Department classifies Bangor Christian, which is fully accredited by the New England Association of Schools and Colleges, as a “private school approved for attendance purposes” and, thus, in satisfaction of Maine’s compulsory attendance laws. But because the school is “sectarian,” “instilling a Biblical worldview in its students” and “intertwin[ing]” religious instruction with its curriculum, it cannot be approved for tuition assistance. Consequently, the Carsons must pay their daughter’s tuition out-of-pocket.
Angela and Troy Nelson send their children, Alicia and Royce, to Erskine Academy, a secular private high school that is approved for tuition assistance purposes. However, they would prefer to send them to Temple Academy, a school that aligns with their sincerely held religious beliefs. Temple, like Bangor Christian, is fully accredited, but because it is “sectarian,” Maine excludes it from the state’s tuition assistance program. Because the Nelsons cannot afford tuition for their children to attend Temple, they remain at Erskine Academy, despite their firm belief that Temple would better meet their educational needs.
Alan and Judy Gillis, whose daughter, Isabella, attended Bangor Christian Schools, joined the lawsuit when it was first filed in 2018. Since their daughter graduated from high school in 2020, however, they are not a party to the Supreme Court appeal.
The lead IJ attorneys in this case are IJ Senior Attorney Michael Bindas, who oversees the work of IJ’s educational choice team and who litigates school choice cases nationwide, and IJ-TX Managing Attorney Arif Panju, who has successfully defended school choice programs in Alabama and Louisiana. IJ’s co-counsel at FLI is Associate Counsel Lea Patterson. Joining IJ and FLI as local counsel is Jeffrey T. Edwards, Esq., of the Portland firm of Preti, Flaherty, Beliveau, and Pachios.
IJ has set numerous landmark precedents advancing school choice, most recently the case of Espinoza v. Montana Department of Revenue, in which the Court ruled that states could not discriminate against parents who wanted to select schools for their children merely because those schools had a religious affiliation.