For the third time in a year, the U.S. Supreme Court has declined to review a school choice program involving the participation of religious school students.
The high court refused without comment last week to review two separate appeals stemming from Maine’s refusal to allow religious schools to participate in a voucher-like system for towns without their own high schools.
Meanwhile, the court dealt a blow to Kiryas Joel, N.Y., by refusing to hear an appeal of a state supreme court ruling that struck down a 1997 law authorizing a separate school district for the community of Hasidic Jews.
Under Maine’s “tuitioning” program, about half the state’s 284 districts pay tuition for their high school students to attend nonreligious private schools or public schools in nearby districts.
The state used to pay the tuition of a small number of students in religious schools. But in 1981, Maine passed a law limiting the tuition payments to “nonsectarian” schools.
In recent years, backed by organizations that have sought to promote religious school vouchers in legal cases, families in two Maine communities that send their children to Roman Catholic high schools have sought reimbursement under the state tuitioning program.
Five families from the town of Raymond who send their children to a Catholic high school in Portland, Maine, sued in state courts, claiming that the exclusion of religious schools from the program violated their First Amendment right to freely exercise their religion. That exclusion, they contended, was not compelled by the amendment’s prohibition against a government establishment of religion.
Three Catholic school families in Minot raised similar claims in a federal lawsuit.
‘Muddled’ Case
Last spring, Maine’s highest court ruled 5-1 in the Raymond case that the First Amendment’s establishment clause required the state to bar religious schools from the tuitioning program.
In the Minot case, a panel of the U.S. Court of Appeals for the 1st Circuit, based in Boston, issued a similar ruling, stating that “the Supreme Court has never permitted broad sponsorship of religious schools.”
The high court declined last term to review a decision of the Wisconsin Supreme Court that upheld the participation of religious schools in the Milwaukee voucher program. And earlier this month, the justices refused to hear a school-choice-related appeal stemming from Arizona’s program of giving tax credits for contributions to private tuition organizations.
Lawyers for the major teachers’ unions and other groups opposing vouchers told the justices that the Maine cases would not make a good vehicle for considering the constitutionality of religious school vouchers. Because the state prohibits the participation of religious schools, the two Maine cases present the voucher issue in a “muddled, hypothetical posture,” the opponents’ brief said.
The court’s refusal to hear the two Maine appeals, Bagley v. Raymond School Department (Case No. 99-163) and Strout v. Albanese (No. 99-254), means it could be some time before it is presented with another school voucher case.
Kiryas Joel
Separately last week, the court voted 6-3 not to hear an appeal involving a New York state law that created a separate school district for Kiryas Joel.
The village of 5,000 educates most of its children in private schools, but it maintains a public school district to serve 225 students with disabilities. Village leaders say parents are reluctant to send their children to public schools in a nearby district out of concern that they would be ridiculed for their distinctive dress and customs.
In 1994, the U.S. Supreme Court ruled that a state law establishing a school district solely for a village made up almost entirely of Hasidic Jews was a form of “religious favoritism” that violated the U.S. Constitution.
Since that ruling, the New York legislature has struggled to craft a neutral law that would allow Kiryas Joel and a small number of other communities to create their own districts. The New York Court of Appeals, the state’s highest court, ruled in May that a 1997 law failed to pass muster because it potentially benefits only two communities.
This past summer, the legislature tried again by passing a measure that was contingent on the Supreme Court’s refusal to review the 1997 law. The latest law, which expands the criteria for the creation of separate village school districts, could apply to as many as 29 municipalities in the state, its backers say.
Steven M. Benardo, the superintendent of the Kiryas Joel district, said the village board had already voted last week to seek to create a school district under the latest law.
In the appeal in Pataki v. Grumet (No. 98-1932), Justices Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas said they would have granted review.
