Maine, Florida Poised for Rulings on School Choice

Published June 1, 2005

Eight Maine families are awaiting a written opinion from the state supreme court following their latest school choice appeal, argued on March 24. Meanwhile, the Florida Supreme Court was scheduled to hear oral arguments on the constitutionality of the state’s Opportunity Scholarship program on June 7.

Representing school choice advocates in both states is the Washington, DC-based Institute for Justice (IJ), the nation’s leading school choice advocacy organization. Richard Komer, a senior IJ attorney representing the families in Maine, said similar issues affect both states.

“In both Maine and Florida, what is at stake is whether parents will be allowed to exercise a full range of choice of schools for their children,” he said, “or whether those choices will be limited by excluding their ability to select religious schools, often the best and most convenient schools for many families.”

Maine’s History of Choice

Since 1873, Maine’s students have benefitted from the state’s “town tuitioning program,” which functions much like vouchers: Students from rural areas without public high schools are given tuition toward a public or private school of their choosing.

In 1980, the state attorney general declared the program a violation of the U.S. Constitution’s establishment clause, and the legislature codified that decision a year later. Since then, the state has barred “tuitioned” students from attending religious schools.

But in 2002, the U.S. Supreme Court set’s decision in Zelman v. Simmons-Harris affirmed the constitutionality of the Cleveland voucher program–which allows parents to choose religious schools for their children.

With that, IJ lawyers asked Maine’s courts to overturn the 1981 law preventing students from attending religious schools. Last October, the Cumberland County Superior Court upheld the state’s restriction in Anderson v. Town of Durham. IJ appealed the ruling, and the case is now pending before the state supreme court.

“Maine excluded the choice of religious schools in 1980 because it thought the establishment clause required it to do so, and the Maine Supreme Court affirmed that conclusion in 1998,” Komer said. “Zelman now renders that 1998 affirmation wrong, but Maine refuses to return the statute to its pre-1980 form.”

Currently, 17,000 students from Maine’s small towns are using vouchers to attend public and secular private schools.

Florida Breaks New Ground

On June 7, the Florida Supreme Court will hear oral arguments defending one of the state’s three voucher programs. Florida was the first state in the nation to approve statewide vouchers: the Opportunity Scholarship program, which has allowed 753 students attending chronically failing schools to choose better schools since 1999; McKay Scholarship vouchers, which have given 14,937 disabled children school choice for the same period of time; and the Florida Corporate Income Tax Credit Scholarship Program, enacted in 2001.

“If the Florida Supreme Court decides it is unconstitutional to allow Opportunity Scholarship families to choose religious schools, the entire program could be struck down and a number of similar Florida aid programs that include both religious and non-religious options will be in jeopardy,” Komer explained.

“Because many states have religion language similar to that found in the Florida Constitution, an adverse decision there could encourage other state supreme courts to follow suit,” he said. “Conversely, a victory for choice in Florida would help us in those other states in defending religiously neutral choice programs.”

Kate McGreevy ([email protected]) is a freelance education writer from Indiana and formerly worked with the Cesar Chavez Public Charter High School for Public Policy in Washington, DC.