Maine Supreme Court Denies Public Funding for Sectarian Schools

Published June 1, 2006

On April 26, the Maine Supreme Judicial Court ruled in a 6-1 decision that the state is not required to publicly fund religious schools under the Town Tuitioning Program, effectively ending a 15-year legal battle over school choice.

Town tuitioning programs are old-fashioned ways of giving parents in small rural towns that don’t operate their own high schools subsidies to pay for their children’s education in nearby towns. Tuitioning programs exist in only two states: Vermont’s program has been operating since 1869, and Maine’s since 1873.

For 98 years, Maine paid for children in the program to be educated at any school of the parents’ choosing, including private religious schools. But in 1981, the state attorney general declared the policy an unconstitutional breach of the “separation of church and state.” The state legislature then codified his determination into law and the state’s courts have perpetuated it, despite a 2002 ruling from the U.S. Supreme Court saying it is in fact constitutional to include religious schools in state-funded choice programs.

‘An Animus Against Religion’

In the current case–Anderson v. Town of Durham, argued by the Washington, DC-based Institute for Justice (IJ) on one side and the Maine Civil Liberties Union (MCLU) on the other–Justice Donald Alexander wrote for the majority that using taxpayer money to pay for private religious education would be an example of “excessive entanglement between religion and state” that might lead to “concerns about maintaining diversity within the public schools, and avoiding involvement in discrimination in admissions and hiring by religious schools.”

In a news release issued on the day of the court’s decision, the MCLU claimed its “chief concern is that government-funded religion could quickly lead to government interference with religion.”

IJ senior litigation attorney Dick Komer called the court’s decision “viewpoint discrimination.” He had argued before the court on behalf of eight families in three towns who sent their children to religious schools and were then denied the state funding their public-school-going neighbors received.

Justice Robert W. Clifford, the lone dissenter on the court, agreed with Komer, writing that excluding parents who choose religious schools “is blatant discrimination that reflects not a neutrality toward religion, but rather an animus against religion.”

Considering an Appeal

The ruling may jeopardize a decision the townspeople on one island off Maine’s coast reached in March to publicly fund their children’s education regardless of the type of school the parents choose to send them to on the mainland.

Because many of the people of Swans Island were educated under the Town Tuitioning Program at private religious schools before 1981, they said they saw no problem with paying for the current generation of children to be sent to religiously affiliated schools.

“If we had won our case, I think the Swans Island people would be in the clear and no idiot would sue them,” Komer said. “Now that we’ve lost it, I think it’s entirely possible for the MCLU to go after them.”

The MCLU did not return calls for comment by press time. Komer said IJ is considering an appeal.

Karla Dial ([email protected]) is managing editor of School Reform News.

For more information …

The Maine Supreme Court’s April 26 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 #19060.