Supreme Court Won’t Hear Maine Case

Published January 1, 2007

On November 27, eight families in Maine lost their last opportunity for equal treatment by the state’s school tuition program when the United States Supreme Court refused to hear their appeal. The decision ended a decade-old court case.

Anderson v. Town of Durham concerned Maine’s 133-year-old town tuitioning program, in which residents of rural towns that don’t operate their own schools receive vouchers from the state to send their children to the public or private school of their choosing.

Those choices were unlimited until 1980, when a former attorney general opined that parents sending their children to religious or sectarian schools should not receive the same reimbursement as other families. The state legislature codified that opinion into law in 1983.

In rejecting the case, the Court allowed to stand an April 2006 Maine Supreme Judicial Court decision, leaving the families without further recourse.

“They’re [without options],” said Dick Komer, lead attorney for the Washingon, DC-based free-market legal firm Institute for Justice (IJ), which has argued the families’ case since 2002. “We knew this was a long shot, but there wasn’t any really good reason not to try.

“Every couple works at least three jobs between the two of them in order to come up with the tuition,” Komer continued, “while their neighbors next door are getting to go to secular private schools if they wish, and getting $7,000 a year in tuition paid on their behalf. That’s religious discrimination.”

Families’ Budgets Stretched

Parent Jill Guay said she was frustrated by the decision. It costs $7,000 a year to send her daughter to St. Dominick’s High School, “where the atmosphere, the education, everything is just so much better than what we experienced at the regional high school.” Her salary as a medical biller and her husband’s income as a firefighter and carpenter don’t leave much wiggle room in the budget.

“It hurts,” Guay said of the Court’s decision. “I was really hoping that the little guy would win one–at least have them hear the case. In our town, it costs more to send a child to public school than to St. Dom’s, but because St. Dom’s is religious, we can’t have that. So we pay taxes, and basically the only service we receive is snow-plowing.”

More Cases Coming

Komer said IJ was hoping the Court would rely on the 2002 case of Zelman v. Simmons-Harris, which found Cleveland, Ohio’s citywide voucher program to be constitutionally sound despite the fact that some parents use the public money to send their children to religious schools.

That would have provided an opportunity to more narrowly define the issues in a 2004 case, Locke v. Davy, in which the Washington State Supreme Court ruled students attending divinity school could not use publicly funded scholarships to pursue religious vocations.

“[We interpret that to say] you can attend religious schools and even take religious classes–you just can’t pursue a religious vocation,” Komer explained. “The Maine Supreme Court and First Circuit [Court of Appeals] interpreted Locke v. Davy more broadly to say it includes any religious school that provides a religious education.”

With a handful of cases involving that distinction working their way up from lower courts, Komer said, the issue is likely to resurface at the U.S. Supreme Court in the future.

“From our point of view, we want to have a very protective standard for religious liberty because so many of the inner-city schools that have to be in these [voucher] programs if kids are going to have a choice are religious,” Komer said. “”Hopefully, we’ll have a less liberal lower court to deal with next time this comes up.”

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

For more information …

The full text of court decisions in the Maine tuitioning cases, Zelman v. Simmons-Harris, and others is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to and choose the topic/subtopic combination Education/Court Decisions.