Federal Appeals Court Upholds Maine Bar on Tuition Aid to Religious Schools

By Mark Walsh — October 29, 2020 5 min read
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A federal appeals court on Thursday upheld the state of Maine’s exclusion of “sectarian” schools from its program of paying private school tuition for students in communities without high schools.

The decision came the same week that U.S. Secretary of Education Betsy DeVos was reported as saying she would no longer enforce a federal prohibition on federal charter school grants to schools affiliated with a sectarian school or religious institution.

In the Maine case, the unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, was somewhat surprising after the U.S. Supreme Court has ruled twice in recent years that religious institutions could not be excluded from public benefit programs.

The 1st Circuit court rejected arguments from President Donald Trump’s administration and from three families who sought to enroll their children in private religious schools under Maine’s decades-old tuitioning program. The court said the distinctive character and limited scope of the tuition assistance program separated it from the aid programs recently considered by the Supreme Court.

“Because Maine permissibly requires public educational instruction to be nonsectarian for reasons that reflect no hostility to religion, it betrays no hostility toward religion when it imposes a use-based ‘nonsectarian’ restriction on the public funds that it makes available for the purpose of providing a substitute for the public educational instruction that is not otherwise offered,” Judge David J. Barron wrote in Carson v. Makin for a panel that included retired Supreme Court Justice David H. Souter.

The opinion parsed the high court’s recent decisions on church-state law. In June, the court ruled in Espinoza v. Montana Department of Revenue that a Montana state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from a state tax credit for scholarship donations. And in a 2017 decision, Trinity Lutheran Church of Columbia v. Comer, the court held that Missouri had violated the U.S. Constitution’s guarantee of free exercise of religion when it denied a church participation in a state program to improve the safety of playgrounds.

The appeals court said it was significant that the Supreme Court rulings were based on the religious status of the institutions denied participation in the funding programs at issue. Maine’s program imposes a prohibition based on religious “use” of the state aid, the court concluded.

“From this vantage, we find it significant that Maine provides tuition assistance only to those who cannot get the benefits of a free public school education directly from” one of the state’s 260 school administrative units, or SAUs, the court said.

That limitation on the tuitioning program’s scope shows that the program is designed to ensure that students who cannot get a public school education from their own SAU can still get an education that is “roughly equivalent to the education they would receive in public schools,” the court said.

“We conclude that, given the baseline that Maine has set through the benefit provided by the tuition assistance program, the plaintiffs in seeking publicly funded ‘biblically-integrated’ or religiously ‘intertwined’ education are not seeking ‘equal access’ to the benefit that Maine makes available to all others—namely, the free benefits of a public education,” Barron said.

“Given limited public funds, the state’s rural character, and the concomitant scarcity of available public school options for residents of many SAUs, we do not see why the Free Exercise Clause compels Maine either to forego relying on private schools to ensure that its residents can obtain the benefits of a free public education or to treat pervasively sectarian education as a substitute for it,” the court said.

The Institute for Justice, the Arlington, Va.-based legal organization that represents the two families seeking to use the tuition assistance at religious schools, said it would immediately appeal the decision to the Supreme Court.

Maine’s tuitioning program began in 1873, and is second-oldest to that of Vermont. But until a 1980 legal opinion, the Institute said, families were free to choose religious schools. The 1st Circuit court has twice before rejected federal constitutional challenges to the bar on “sectarian” schools’ participation.

The Trump administration had supported the families in legal briefs filed in the case.

DeVos and Religiously Affiliated Charters

DeVos, speaking earlier this week on an issue that raises some of the same legal issues as the Maine decision, said at a school choice roundtable in Louisville, Ky., that the federal government has determined that “prohibiting religiously affiliated charter schools is unconstitutional,” according to the Courier-Journal newspaper.

“The Department of Education in the Charter School Program will not discriminate and will allow for and welcome religiously affiliated applicants,” DeVos said Monday.

The education news site Chalkbeat linked to a Feb. 18 legal memo from the U.S. Department of Justice to Reed D. Rubinstein, the principal deputy general counsel of the Education Department.

“You have asked about the constitutionality of a statute that excludes religiously affiliated charter schools from participating in the Expanding Opportunity Through Quality Charter Schools Program,” said the memo from Deputy Assistant Attorney General Henry C. Whitaker.

“We conclude that the restriction unconstitutionally discriminates on the basis of religious status” under Trinity Lutheran, says the memo, which came before the high court’s June 30 decision in Espinoza.

The five-page memo adds that under federal education law, “while a ‘charter school’ is a ‘public school’ operated under ‘public supervision and direction,’ it may be created or operated by an individual or private nonprofit organization.”

The memo concludes that “forbidding charter schools under this program from affiliating with religious organizations discriminates on the basis of religious status.”

It appears that DeVos has not made a formal announcement about the change she discussed Monday, which came just over a week before Election Day.

A version of this news article first appeared in The School Law Blog.