School choice activists have launched a fresh legal challenge to a Maine program that provides public funding for students to attend secular but not religious private schools. The case is the first of what observers say could become a string of state-level lawsuits spurred by the U.S. Supreme Court’s decision upholding the Cleveland voucher program.
The Institute for Justice, the Washington-based legal-advocacy group that helped defend the Cleveland program, filed suit Sept. 18 in the Cumberland County Superior Court in Portland, Maine, on behalf of six families from three towns in the state. In Maine, school districts provide tuition for students to attend private or out-of-district public schools if their home districts do not have enough schools to serve them. Some 18,000 Maine students, the vast majority of them in high school, take part in the program, referred to as “tuitioning.”
In 1981, the legislature enacted a law that barred Maine districts from paying for students to attend religious schools. Lawmakers acted after an opinion from the state attorney general, who said including religious schools in the program would violate the U.S. Constitution’s ban on a government establishment of religion.
The Institute for Justice argues that denying Maine parents the right to select religious schools for their children under the tuitioning policy amounts to religious discrimination. The organization brought a similar suit in 1997, but the Maine Supreme Court upheld the law. The institute asked the U.S. Supreme Court to take the case. The request was denied in 1999.
“For us, this is basically unfinished business,” said Richard Komer, a senior lawyer for the institute and the lead counsel in both the 1997 case and the current suit. “They have drawn a line on the basis of religion, and they did it for one reason and one reason only: They thought they had to. The Cleveland case proves they were wrong about that.”
In a June 27 ruling that has buoyed school choice proponents nationwide, the Supreme Court upheld a state-run choice program that provides vouchers worth up to $2,250 each to Cleveland students to attend religious or secular private schools. Ohio officials expect more than 5,500 students, most from low-income families, to participate in the program this school year.
Since that 5-4 ruling in Zelman v. Simmons-Harris, legal experts have predicted new state-level court battles over school choice. (“Supreme Court Upholds Cleveland Voucher Program,” June 27, 2002.)
Thirty-eight states, including Maine, have constitutions that are seen as prohibiting public funds from going to religious schools, and school choice activists are hoping to overturn those bans in court.
In Florida, the Institute for Justice is helping the state defend a school choice program that allows students from low- performing schools to use vouchers to attend religious as well as secular private schools. On Aug. 5, a state circuit court judge ruled that the program violates a clause in the state constitution that bars religious institutions, including schools, from receiving public money. The state has appealed that ruling, and the judge has allowed the voucher program to continue until the case is resolved. (“Florida Sees Surge in Use of Vouchers,” Sept. 4, 2002.)
Meanwhile, Mr. Komer of the institute said his organization would take legal action in Vermont, which has a tuitioning program similar to Maine’s, within the next two months.
J. Duke Albanese, Maine’s commissioner of education, said last week that he had consulted with state Attorney General G. Steven Rowe after the decision in the Cleveland case and was told Maine’s choice program would withstand legal scrutiny.
Mr. Albanese said the issue in the Zelman case was whether a state may allow vouchers to be used at religious schools in some situations, and not whether a state would be required to pay for education in religious schools.
“The questions in the cases are very different,” Mr. Albanese said. “There is significant choice in Maine already.”