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Published in Print: November 3, 2004, as Court: Maine Aid Program Can Bar Religious Schools

Court: Maine Aid Program Can Bar Religious Schools

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School districts in Maine are not required by the U.S. Constitution to pay tuition for students at religious high schools even when they pay for secular private schools.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled unanimously last month against two families that had sought to require their school district to pay tuition at a Roman Catholic high school.

Some districts in the largely rural state have long-standing voucher-like programs, called “tuitioning,” in which they pay to enroll students at secular private schools or public schools in other districts when the home districts do not run their own high schools.

Several parents in the town of Minot, Maine, sought to have the district pay the tuition for sending their children to St. Dominic’s Regional High School, a local Catholic school. They argued in their 2002 lawsuit that a state law that bars religious schools from the tuitioning program violates their 14th Amendment right to equal protection of the law.

The families live within the borders of the 410-student Minot district, which operates a K-8 school but contracts with the neighboring Poland, Maine, district to educate its high school students. The district also will pay tuition at secular private schools for up to 10 percent of its high school population if parents can show that their children’s educational needs cannot be met at the public high school.

The parents in the lawsuit, John and Belinda Eulitt and Kelly J. MacKinnon, said that their daughters’ educational needs could not be met because the public school does not offer classes in Catholic doctrine or teach from a Catholic viewpoint. The two girls are attending St. Dominic’s with their parents paying the tuition.

“The [Maine] statute obviously and blatantly discriminates against religious private schools, because they are religious and because they teach a religious point of view,” said Steven Whiting, a Portland, Maine, lawyer who represents the families.

The same issue was litigated extensively in the 1990s in Maine and Vermont, which has a similar tuitioning program, with state and federal courts generally holding that districts were not obligated to pay religious school tuition even when they covered costs at secular private schools.

Recent Rulings Weighed

The 1st Circuit court panel analyzed the Minot case under more recent U.S. Supreme Court decisions on government aid for religious schooling. The first was the high court’s 2002 ruling in Zelman v. Simmons-Harris that upheld a state program that pays for Cleveland schoolchildren to attend religious schools. The second was its ruling from earlier this year in Locke v. Davey, which upheld a Washington state scholarship program that prohibits students’ use of the state aid to pursue degrees in theology.

The 1st Circuit panel concluded that neither ruling required it to disturb a 1999 decision by another panel of its court that Maine’s prohibition against including religious schools in the tuitioning program did not violate parents’ First Amendment right to free exercise of religion.

“Maine’s decision not to extend tuition funding to religious schools does not … require residents to forgo religious convictions in order to receive the benefit offered by the state—a secular education,” said the Oct. 22 opinion by U.S. Circuit Judge Bruce M. Selya.

Mr. Whiting said he believes he could have had a stronger case if the Catholic school had been his plaintiff, but the school declined to participate. He said he is doubtful that he will appeal any further.

A similar case is weaving its way through Maine’s state court system. On Oct. 4, a state judge also upheld the Maine law that bars districts from paying tuition at religious schools. The plaintiffs announced last month that they are appealing that case to the state supreme court.

Vol. 24, Issue 10, Page 5

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