Maine Supreme Court Weighs Religious Freedom Case

Published December 1, 1998

While most school choice litigation is initiated by opponents seeking to halt the implementation of legislation to expand choice, a case recently argued before the Maine Supreme Court was initiated by school choice advocates seeking to overturn a 1981 state law because it restricts choice to non-sectarian schools.

Lawyers representing five families from the town of Raymond presented arguments to the court that the state–by refusing to pay for their sons to attend Portland’s Catholic Cheverus High School while paying for students to attend secular schools of choice–was violating the U.S. and Maine Constitutions’ guarantees of the free exercise of religion and equal protection of the laws.

Attorneys for the state and for the Raymond School Department disagreed, claiming that families were treated equally, regardless of their religious beliefs. The state does not give preference to secular education over religious education, argued assistant attorney general Peter Brann, nor does the state finance religious beliefs.

“The right to send your children to a pervasively religious school does not equate with a state requirement to pay for it,” said Brann.

The state’s refusal to pay for tuition at religious schools constitutes religious discrimination and a violation of the Constitution, argued Richard Komer, an attorney with the Washington, DC-based Institute for Justice. The policy also is inconsistent with the lack of religious discrimination in other state and federal education programs, such as Pell Grants and the GI Bill, which provide money for students to attend religious colleges. Maine’s elementary and secondary school children should be treated no differently than its college students, argued Komer.

“They have an entitlement to choose a school just like a college student has an entitlement to use a Pell Grant at the school of their choice,” Komer said, pointing out that the Maine Student Incentive Scholarship Program also provided money for students to attend religious colleges.

“Maine’s tuitioning system should operate just like Pell Grants, student loans, or the GI Bill–none of which exclude religious schools,” Komer argued.

Maine, like Vermont, operates a rural school choice program, called “tuitioning,” for the more than 13,000 schoolchildren who live in roughly 140 towns without public high schools. The tuitioning program gives parents the right to select any public or private high school, in-state or out-of-state, that best meets their children’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, currently $4,800 a year.

For nearly eight decades, from 1903 to 1981, the tuitioning program included religious schools. But since 1981, Maine state law has specifically prohibited towns from paying tuition to any school that is “sectarian.”

In July, Aaron Bagley’s parents and four other families asked the Town of Raymond to tuition their sons to Cheverus High School. When the town denied their request because Cheverus is a religious school, the families, represented by the Institute for Justice, filed a lawsuit alleging that the Town’s action, and Maine’s law prohibiting parents from selecting a religious school for their children, violate the U.S. Constitution’s guarantee of the free exercise of religion.

“The Supreme Court has consistently held that laws which single out religion for discrimination violate the First Amendment’s right to the free exercise of religion,” said plaintiff’s attorney Nicole Garnett. She noted that recent favorable case law suggests that when government allows the use of private entities to serve public purposes, it may not exclude religious entities from the range of options.

Last year’s U.S. Supreme Court ruling in Agostini v. Felton, for example, reasserted the principle that “programs that provide aid to all eligible students regardless of where they attend school” do not run afoul of the Constitution. The Court held that religious schools may participate in programs like Maine’s tuitioning program because public funds go to 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.)

The Maine lawsuit parallels a similar case being litigated by the Institute in Vermont, but the two cases focus on different clauses of the First Amendment. 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, while the Vermont case addresses the establishment clause.

The Maine Supreme Court is expected to rule on Bagley v. Town of Raymond case by February 1999.

George A. Clowes is managing editor of School Reform News.

For more information …

The U.S. Supreme Court’s ruling in Agostini v. Felton, which approved the expenditure of tax dollars for services provided to students on religious school grounds, is available through PolicyBot. Point your Web browser to, click on the PolicyBot icon, and search for old documents #2174802 (syllabus, 5 pp.); #2174803 (opinion part 1, 12 pp.); #2174804 (opinion part 2, 11 pp.); #2174805 (opinion part 3, 11 pp.); #2174806 (Souter dissent, 16 pp.); and #2174807 (Ginsburg dissent, 7 pp.).