Maine Parents Take Choice Challenge to U.S. Supreme Court

Published October 1, 2006

Jill Guay of Minot, Maine knows other parents in her state can send their children to private schools on the state’s dime. She wants to do the same, by sending her daughter to a private school that reflects her values. By October’s end she may know whether the U.S Supreme Court will hear her plea.

Guay, with the help of the Institute for Justice, is seeking to overturn a Maine policy preventing parents from using the state’s 133-year-old Town Tuitioning Program for a private religious school.

Because many towns in Maine are too small to run their own high schools–and sometimes even elementary schools–the tuitioning program allows parents to send their children to nonsectarian private schools wherever they choose, even out of state. The “sending” town pays each child’s tuition to the “receiving” school or district.

But for the past eight years, a court battle has been waged by parents who, like Guay, want to send their kids to private religious schools.

In late July, the Institute for Justice (IJ), a Washington, DC-based public interest law firm that represents families such as Guay’s in Anderson v. Town of Durham, the case in question, filed its appeal with the Supreme Court after a defeat at the Maine Supreme Judicial Court in April.

Guaranteeing Education

Since 1873, many Maine towns have given residents a choice about the schools their children attend, while others have contracted with the nearest school to educate their children.

In 1903, Maine guaranteed all students would have access to a high school education, leading more communities to join the tuitioning program.

According to the Milton & Rose D. Friedman Foundation, a school choice advocacy group based in Indianapolis, during the 2003-04 school year 113 towns in Maine used the tuitioning program, and 33 contracted with the school closest by.

Tuitioning at private religious schools in Maine was commonplace during most of the twentieth century. But in 1980, Maine Attorney General Joseph Brennan issued an advisory opinion saying tuitioning to private religious schools violates the U.S. Constitution’s Establishment clause. In 1982, the legislature signed that opinion into law.

Seeking Choice

Guay said Minot students can choose to attend either Poland High, a local public school, or Hebron Academy, a nonsectarian private school. Under the 1982 law they cannot choose St. Dominic’s Regional High School, a private religious school in nearby Auburn.

Guay originally joined the case as an appellant in 1998, when her oldest daughter was entering high school. She now has another daughter attending St. Dominic’s.

“I feel that if a student is going to be tuitioned, why shouldn’t we have the school of our choice? I’d like to send them to a school of our choice, which happens to be religious,” Guay said.

Guay said her older daughter tried attending Poland High during her freshman year but it wasn’t a good fit. Minot could save the government money by sending her younger daughter to St. Dominic’s rather than Poland, because the tuition at the Catholic school is less than at the neighboring public school.

Excluding Religious Schools

“The most fundamental question is whether a government can exclude a religious option from an otherwise neutral scholarship program simply because [it is religious],” said Clark Neilly, an IJ senior attorney and the lead attorney on Anderson v. Town of Durham.

“In 1980 [Maine] made a decision to change a century of religion-neutral policy and suddenly exclude religious options. They had a mistaken belief that the United States Constitution required it,” Neilly continued. “In 2002, the [U.S.] Supreme Court said that was wrong.”

In the 2002 case, Zelman v. Simmons-Harris, the U.S. Supreme Court upheld the constitutionality of a voucher program operating in Cleveland, Ohio, which pays for some children to attend the private religious schools of their parents’ choosing.

The court ruled the program supported parental choice, not religious establishment.

Michael Coulter ([email protected]) teaches political science at Grove City College in Pennsylvania.

For more information …

The Maine Supreme Judicial Court’s April 2006 decision in Anderson v. Town of Durham is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to, click on the PolicyBot™ button, and search for document #19706.

The U.S. Supreme Court’s June 2002 decision in Zelman v. Simmons-Harris is also available through PolicyBot™. Search for document #9459.