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Published in Print: December 6, 2006, as High Court Declines to Hear Maine ‘Tuitioning’ Case

High Court Declines to Hear Maine ‘Tuitioning’ Case

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The U.S. Supreme Court last week rebuffed an appeal by eight Maine families who contend that their state has wrongly refused to pay their children’s tuition at religious high schools because the state only provides such benefits for certain students enrolled in nonreligious private schools.

The appeal, Anderson v. Durham School Department (Case No. 06-132), had attracted national attention in the debate over using publicly funded vouchers for private schools.

Under Maine’s “tuitioning” law, school districts that do not run their own public high schools, notably in rural areas, can use state funds to pay for students to attend nonreligious private high schools or public high schools in neighboring districts.

“It’s a true Maine choice program in towns that choose to adopt it,” said Richard D. Komer, a senior litigation attorney at the Institute for Justice, in Arlington, Va., which represented the families in the lawsuit.

The families that choose to send their children to religious private schools are left out of the system, he contended. “Everyone gets their tuition paid, except for families that choose religious schools,” he said.

Cleveland Voucher Case Cited

Under a state policy adopted in 1980 and codified by statute in 1983, public funds may not go to any school other than a “nonsectarian school in accordance with the First Amendment” to the U.S. Constitution. That law took wording from a 1980 opinion by Maine’s attorney general that said the state’s long-standing practice of allowing parents to use tuitioning for religious schools violated the First Amendment’s prohibition against a government establishment of religion.

Tuition Aid and the School Choice Movement

Under “tuitioning,” a school district that lacks certain schools of its own pays for some of its students to attend private schools or public schools in other districts.

New England states adopt laws:

In 1869, Vermont passed a law authorizing tuitioning under which children could attend either religious or nonreligious private schools in towns without their own high schools. The Vermont Supreme Court in 1961 and 1999 barred the inclusion of religiously affiliated schools. Maine adopted its tuitioning law in 1873. In the early 1980s, the state limited tuitioning with public funds to nonreligious private schools.

School choice movement takes notice:

In the 1990s, the Vermont and Maine tuitioning programs caught the attention of advocates of private school vouchers. Both states were challenged in the courts by parents who sought to force school districts to pay their children’s tuition at religious schools. State and federal courts sided with the states. In 2002, the U.S. Supreme Court upheld the constitutionality of a private school voucher program that the Ohio legislature adopted for Cleveland that allows parents to choose religious schools.

Cleveland voucher ruling spawns new efforts:

Following that ruling, Maine families renewed their attempts to have the state change its policy and allow tuitioning students to attend religious schools at public expense. But state and federal courts rejected the efforts. In the latest case, the Maine Supreme Judicial Court ruled in April against a group of families that had sued three districts and the state seeking to allow tuitioning at religious schools. The U.S. Supreme Court last week declined to hear the families’ appeal in Anderson v. Durham School Department (Case No. 06-132).

Maine parents have long fought that restriction in the tuitioning law in the courts. Parents in Vermont, which has a similar tradition of tuitioning, have challenged similar rules in their state.

The Maine parents argued in the current case that the 1980 attorney general’s opinion erred by lumping together school districts that contract with private schools to provide a secondary-level education—which all agree cannot involve religious schools—and districts that allow parents to choose private high schools on their own.

In the latter instance, the parents argued, individual parents’ decision to choose a religious school would not violate the establishment clause. The parents claimed that the failure to allow them that choice violated their guarantee of equal protection under the 14th Amendment.

The Maine parents argued in their challenge that they were bolstered by the U.S. Supreme Court’s 2002 ruling in Zelman v. Simmons-Harris upholding an Ohio school voucher plan that allows Cleveland parents to choose send their children to private religious schools.

Since 2002, however, Maine has continued to exclude religious schools from its tuitioning system. In a ruling in April, the Maine Supreme Judicial Court rejected the parents’ case.

In a 6-1 decision, the state’s highest court relied on the U.S. Supreme Court’s 2004 decision in Locke v. Davey, which held that Washington state was not required under the First Amendment’s religion clauses to allow a student to use a state scholarship to pursue a devotional theology degree.

“After Zelman, the state may be permitted to pass a statute authorizing some form of tuition payments to religious schools, but … it is not compelled to do so,” the court said.

The federal Supreme Court on Nov. 27 declined without comment to hear the parents’ appeal. Mr. Komer of the Institute for Justice noted that “there isn’t that big a conflict yet in the lower courts of appeals” on the issue, which is one of the chief reasons that the high court agrees to review cases.

Vol. 26, Issue 14, Page 23

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