Justice Dept. Backs Religious School Choice in Case on Maine Tuition Program

By Mark Walsh — June 12, 2019 3 min read
  • Save to favorites
  • Print

The Trump administration has entered a lawsuit in support of three families seeking to require the state of Maine to pay tuition for their children to attend religious high schools.

Maine categorically excludes religious schools from its program to pay tuition for students in school districts that do not operate their own high schools. Of the state’s 260 districts, 143 do not operate a secondary school, and they can contract with another district or with approved private schools.

The three families, backed by the Arlington, Va.-based Institute for Justice, say the exclusion of religious schools from Maine’s tuition program violates their First Amendment right of free exercise of religion and 14th Amendment right of equal protection of the law.

The lawsuit relies heavily on the U.S. Supreme Court’s 2017 decision in Trinity Lutheran Church of Columbia, Mo. v. Comer, in which the justices said Missouri violated the free-exercise clause when it denied the church’s participation in a state playground-improvement program. The Trinity Lutheran decision has been the subject of much debate over how much it bolsters those seeking to require state school choice programs to include religious schools.

In a 21-page statement of interest filed June 11 in the Maine case, Carson v. Makin, in U.S. district court in Portland, the U.S. Department of Justice cites the Trinity Lutheran case more than 40 times.

“By putting students to a ‘choice’ between participating in the ‘otherwise available’ tuition program and remaining enrolled at a religious institution, the state has ‘impose[d] a penalty on the free exercise of religion,’” the federal government’s court filing says, citing language from the Trinity Lutheran decision.

The Justice Department took issue with an argument offered by Maine in court papers that the exclusion of “sectarian” schools from the tuition program is necessary to achieve the state’s interest in maintaining “a secular public education system.”

“The Free Exercise Clause and Trinity Lutheran would be a dead letter if, as the state suggests, a state could exclude ‘sectarian’ individuals and institutions from a public program, simply by labeling that program ‘secular,’” the Justice Department filing says. It notes that the state approves some private religious schools and recognizes others as meeting the state’s standards for providing secular instruction in English, mathematics, history, social studies, and other subjects.

Maine’s exclusion of religious schools from its religion program is rooted in a 1981 state statute barring public funding of such schools. The law has been upheld in state courts and by the U.S. Court of Appeals for the 1st Circuit, in Boston.

In a document filed before the Justice Department’s statement of interest, Maine said the plaintiffs’ “entire argument hinges on a combination of a misinterpretation of the benefit offered by Maine’s tuition program and an unreasonably broad reading of the Supreme Court’s Trinity Lutheran decision.”

Maine is not one of the 30 states that have a state constitutional provision prohibiting state funding of religion, including religious schools. Those measures have begun to come under challenge after the Trinity Lutheran decision.

On June 20, the justices are scheduled to consider at their private conference an appeal filed by the Institute for Justice on behalf of parents who support a Montana tuition-tax credit program that would allow modest scholarships to benefit students at private schools, including religious schools.

The Montana legislature adopted the program, but the state revenue department concluded it was required to exclude religious schools from participation based on a state constitutional provision barring government aid to “sectarian” schools. The Montana Supreme Court struck down the entire tax credit program late last year, and the families appealed to the U.S. Supreme Court in Espinoza v. Montana Department of Revenue (Case No. 18-1195).

(Correction: An earlier version of this post provided an incorrect date for when the Montana appeal will be considered by the justices in their private conference.)

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