In a case that could set an important precedent for state education programs that discriminate against religious schools, the Washington, DC-based Institute for Justice has filed a lawsuit challenging the exclusion of religious schools from Maine’s rural school choice program. The exclusion, argue Institute for Justice attorneys Nicole Garnett and Dick Komer, violates Maine families’ free exercise of religion and equal protection under the law.
Like Vermont, Maine pays tuition at public or private schools for children who live in towns without public high schools–a practice known as “tuitioning.” Parents who live in towns without public high schools have the right to select the school that best meets their child’s educational needs. The town then pays tuition to the school selected by the parents, with the amount capped at the average cost of educating a student in Maine’s public high schools.
Parents who live in “tuitioning towns” are free to choose any public or private school for their children, in-state and out-of-state. For eighty years, from 1903 to 1983, religious schools were included among the private schools participating in the program. But since 1983, Maine state law has specifically prohibited towns from paying tuition to any school that is “sectarian.”
During the 1996-97 school year, some 140 Maine school districts paid tuition for approximately 13,000 students to attend public and private schools. Town of Raymond resident Aaron Bagley, a sophomore at Cheverus High School in Portland, was not among those students because the high school he attended was Catholic, and thus excluded from the tuitioning program.
In July, Aaron’s parents and three other families asked the Town of Raymond to tuition their sons to Cheverus High School. The town denied their request because Cheverus is a religious school. On July 31, the families joined the Institute for Justice to file a lawsuit alleging that the Town of Raymond’s action, and Maine’s law prohibiting parents from selecting a religious school for their children, violate the U.S. Constitution’s protection for the free exercise of religion.
“The Supreme Court has consistently held that laws that single out religion for discrimination violate the First Amendment’s right to the free exercise of religion,” said Garnett.
The town will most likely argue that the First Amendment’s establishment clause forbids the inclusion of religious schools in the tuitioning program. However, explained Garnett, the Bagley v. Town of Raymond lawsuit builds upon recent favorable case law suggesting that when government allows the use of private entities to fulfill public purposes, it may not exclude religious entities from the range of options.
The recent U.S. Supreme Court ruling in Agostini v. Felton reasserted the principle that “programs that provide aid to all eligible students regardless of where they attend school” do not run afoul of the establishment clause. The Court held that religious schools may participate in programs like Maine’s tuitioning program because public funds wind up in religious institutions “only as a result of the genuinely independent and private choices of individuals.” (See “Court OKs Tax-Funded Teachers in Church Schools,” School Reform News, September 1997.)
Although the Bagleys’ lawsuit closely parallels a suit the Institute is litigating in Vermont, the two cases hinge on different First Amendment clauses. While the Maine statute singles out religious schools for discrimination, the Vermont law is neutral with respect to religion. The Maine case thus focuses primarily on the First Amendment’s free exercise clause, and the Vermont case on the establishment clause.
“Ultimately, the U.S. Supreme Court needs to decide the important issues raised by school choice programs,” said Garnett, so that “the constitutional cloud” hovering over education reform efforts can be removed.