In early March, the people of Swans Island, Maine, a town without a secondary school, voted to pay for their children’s education with local tax funds at either public or private secondary schools, including religious schools not funded by the local education authority. The subsidies will be paid directly to parents and involve local funds, not state monies, thereby avoiding church-state issues, according to the proposal’s sponsors.
The 57-44 vote on the tiny island off the Maine coast–where the economy relies on lobstering and most children are ferried to school on the mainland–echoed a much larger national debate over public subsidies to religious schools. Some islanders feel it may also be the solution to a longstanding conundrum over the application of the First Amendment to Maine education law.
“The response was overwhelmingly for raising money for this,” said town clerk Gwen May after a lengthy public debate.
In Maine, a local school district that doesn’t operate comparable schools–a high school, for example–is allowed to “contract” with an approved public or private school (but not religious schools). Tuition is reimbursed according to a state-set formula. In towns without any schools, parents enroll their children in an approved school, and the school then informs the town clerk, who issues a voucher and reimburses the school for expenses according to the state formula.
Since 1873, Maine has run such a Town Tuitioning Program–essentially, universal school vouchers–because so many small towns don’t operate their own high schools, and in some cases even elementary schools. Most towns allow parents to choose their children’s schools, and then the town pays the per-pupil costs to the receiving districts. According to The History of Maine Education (1936), by Ada Chadbourne, sending payments to private religious schools was not prohibited.
In fact, Maine’s education system started out as almost exclusively religious. It wasn’t secularized until Thomas Jefferson consulted with the first state board of education in the 1800s and advised it to set up a taxation system to build “free” public schools. Over the past 100 years, the state’s roster of private academies dwindled down to a few dozen, operating largely at the secondary school level, which educated students at public expense under the tuition reimbursement policy.
The system became further restricted in 1980, when then-Attorney General Joseph Brennan (D) ruled local school districts were forbidden to pay tuition to religious high schools, applying the prevailing interpretation of the U.S. Constitution’s clause regarding the separation of church and state.
The ruling devastated a number of religious schools–even forcing a highly regarded Jesuit high school, John Bapst, to secularize in order to continue serving the community.
Several Swans Island residents who had attended religious schools recalled the 1980 decision’s impact on their education and voted for the local subsidy. Jason Joyce, lobsterman and leader of the group that convinced the town to adopt the subsidy, called it a “return to the island’s roots”–an idea several islands off the coast of Maine are echoing as they withdraw from mainland-dominated school districts.
John Grace, a first selectman, supported the American Civil Liberties Union’s view of the separation of church and state as applied to school finance, but said he “could see the way the town was going to vote” on the issue and stepped aside to let the voters express their will. He said many townspeople who are now in their fifties and sixties and were educated under the old policy saw nothing wrong in restoring public payment of tuition for students at religious schools.
Over the past 15 years, various parents backed by libertarian and religious groups have taken the issue to court, using the U.S. Supreme Court’s shifting interpretation of the establishment clause to argue courts should allow the state to revert to its prior practice of directly funding approved religious schools.
Two key litigators have emerged to lead the challenges before the courts: Dick Komer, senior litigator for the Washington, DC-based Institute for Justice, and Stephen Whiting, a lawyer in Portland, Maine. The Institute for Justice currently has a school voucher case, Anderson v. Town of Durham, before the Maine Supreme Court. The Whiting firm represented the Eulit family in a federal case two years ago, arguing for restoration of state funding for religious schools on different grounds than were argued by the Institute for Justice.
Whiting’s firm, representing the Anderson family and other plaintiffs, appealed the Anderson decision to the Maine Supreme Court, where oral arguments were presented in February 2005. However, because of changes in the court, a rehearing was held in February 2006.
“The fact that the Maine Supreme Court asked us to reargue the case suggests that we made some headway since the original argument a year ago,” Komer said, adding he is “hopeful” of a favorable ruling.
But funding religious schools under the Town Tuitioning Program is not the main point, Whiting said. While the people of Swans Island were debating the issue, Whiting crafted a local warrant (a town ordinance that is put on the agenda at a town meeting for discussion and approval or disapproval), at the request of local lobsterman Joyce.
The warrant recognized recent U.S. Supreme Court rulings that public subsidies to parents avoid constitutional problems involved in paying schools directly. The warrant also avoided the Maine law’s prohibition of local education authorities from paying tuition to religious schools because the Family Subsidy Policy uses only local monies and goes directly to the parents to spend on the school of their choice.
“No money is going to be paid by the town to sectarian schools, so there is no way that your policy could be found to violate Title 20-A M.R.S.A. 2951 (this is the State statute governing the State’s subsidies for local education agencies),” Whiting wrote in a March 15 letter to Joyce.
“As stated in my letter of February 22, the Anderson v. Town of Durham case involves issues that are so completely different from what you are proposing to do with your non-discrimination family subsidy policy that there is no way the court’s decision in Anderson could possibly have any effect on your proposed policy, whichever way the court decides that case. . “In short, there is no legal reason why the town should have to discriminate against families like yours, and your proposed policy levels the playing field within the boundaries of the law” (emphasis in original).
Whiting said he was “cautiously optimistic” the plan could withstand the potential legal challenges it might face from civil liberties groups in the future, particularly since the provision has been shorn of previous church/state separation objections.
A spokesman for the Maine Civil Liberties Union said the group was withholding action until the Maine Supreme Court issues a ruling on Anderson in a few months.
In the meantime, Joyce’s son will be attending Life Christian Academy in Ellsworth, Maine, with his tuition paid by his parents out of tax monies sent to them under a plan approved by a majority of Swans Islanders.
“It’s a tremendous help,” Joyce said. “[My son] likes the school, he gets a good education, he does well in his grades. I am very proud of the Town of Swans Island for taking a stand.”
Frank J. Heller ([email protected]) is a member of the Maine Policy Ronin Network in Brunswick.