Washington, D.C.-Armed with a recent and historic U.S. Supreme Court decision upholding school choice, the Institute for Justice today returned to Maine to vindicate the promise of school choice and fight for the principle that government programs cannot discriminate against religion. In the first case in its nationwide school choice offensive, the Institute for Justice, the nation’s leading legal advocates for school choice, is asking a Maine court to overturn a 1981 law that erroneously banned religious schools from the state’s nearly 100-year-old school choice program.
In addition to arguing that the U.S. Supreme Court clearly gave a green light to including religious options, the Institute for Justice maintains that discriminating against families who choose religious schools through the state’s “tuitioning” program is a violation of the Constitution. In a series of cases, the U.S. Supreme Court has ruled that the First Amendment makes illegal any law that singles out religion for exclusion.
The Institute represents six families from three small towns in Maine—Durham, Minot and Raymond—where the local school districts offer high school tuition for students to attend the schools of their choice—public, private, in-state or out-of-state—in lieu of maintaining public schools. For most of its existence, this statewide “tuitioning” system permitted the selection of religious schools. But about 20 years ago, the state came to believe that the inclusion of religious options violated the federal Establishment Clause and excised them from the system.
“Maine offers school choice to everyone except those who choose religious schools,” said Richard Komer, Institute for Justice senior attorney and lead counsel for the litigation. “Under the Constitution, that’s religious discrimination, and we intend to restore our clients’ religious liberty.”
IJ brought a similar suit, Bagley v. Town of Raymond, in 1997. In Bagley, the Maine Supreme Court upheld the law eliminating religious options from the choice program, but admitted that the State’s only justification for doing so was the federal Establishment Clause, opening the door for today’s lawsuit.
“The U.S. Supreme Court has said that we were right the first time, and we’re unquestionably right now: the Constitution in no way justifies discriminating against parents who freely choose religious schools for their children,” said Komer. “The State of Maine, which persists in denying our clients’ educational choices, clearly has no legal leg to stand on.”
“We feel discriminated against by our town and our state,” said Kevin and Julia Anderson of Durham, who, at considerable expense, send their son David to Pine Tree Academy in Freeport, Maine. The Andersons, who are Seventh Day Adventists, were dissatisfied with the public schools and preferred that the values of David’s school reflect his religious background. “If everyone else has the freedom to choose a school, why is this right denied us just on the basis of religion? Our school is a good school, accredited by the State of Maine, yet the State says we aren’t allowed to select it through the tuitioning program.”
“Choice isn’t true choice when the State removes so many of our options,” said Dale Daniels, whose son Kyle is a sophomore at St. Dominic’s Regional High School, a Catholic school in Durham. The Danielses, who are not Catholic, appreciate the school’s academic rigor. “We know that St. Dominic’s is the best school for our son, so who is the State to deny us equal access to a good education?”
The Institute for Justice has successfully defended school voucher programs in Cleveland and Milwaukee and tax credit programs in Illinois and Arizona from legal attacks by school choice opponents, and it is currently litigating in defense of Florida’s statewide Opportunity Scholarship program. The Maine case will be followed by lawsuits challenging state constitutional religion clauses that could be interpreted to exclude religious options from school choice programs in other states.