Maine School Choice II

Clearing the Road Ahead for School Choice: Institute for Justice Asks U.S. Supreme Court To End Religious Discrimination & Vindicate Parental Liberty

The Institute for Justice challenged the exclusion of religious options from Maine’s 100-year-old “tuitioning,” or rural school choice, program. For most of the program’s existence, families were free to choose religious schools, but the state banned them in 1980.

The case was filed on the heels of the U.S. Supreme Court victory upholding Cleveland’s school choice program, a decision that gave ammunition to Maine parents fighting for the right to send their children to religious schools. The Institute represented families from three small towns in Maine—Durham, Minot and Raymond—where the local school districts, in lieu of maintaining public schools, offered high school tuition for students to attend the schools of their choice. Under the 1980 policy change, however, the districts prohibited families from choosing religious schools.

Unfortunately, in April 2006, the Maine Supreme Court upheld the religious exclusion, rejecting IJ’s argument that it violated the Free Exercise and Establishment Clauses of the U.S Constitution. The U.S. Supreme Court declined to review the decision.

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Maine law blatantly discriminates against parents on the basis of religion, providing some families with tuition support for the school of their choice but denying that same support—totaling $20,000 or more per child for four years of high school—to other families. These families qualify for Maine’s “tuitioning” program in all other respects, but are excluded simply because they choose religious schools.

Such discrimination is both unfair and unconstitutional, flying in the face of decades of U.S. Supreme Court precedent establishing that while states may not discriminate in favor of religion, neither may they discriminate against it.

It also makes Maine a real-world example of the argument put forward by teachers’ unions and others opposed to school choice nearly every time state lawmakers pass, or even propose, school choice legislation. These special interest groups—for their own reasons—inevitably claim that school choice plans violate the religion provisions of state constitutions.

But the logical result of that misconception is the blatant discrimination practiced by Maine. If school choice programs that treat religious and non-religious options equally actually violate state constitutions, as opponents argue, then the only constitutional course of action is treating them unequally, which is to say, discriminating against religion—exactly what Maine does and what the federal Constitution prohibits.

In 2002, the U.S. Supreme Court put to rest the teachers’ unions’ claim under the federal Constitution’s Establishment Clause when it upheld a school voucher program that saved thousands of poor and mostly minority children from Cleveland’s dismal public schools.[1] The Court declared that religiously neutral programs that allow parents to freely choose among a wide array of educational options—including religious schools—are permissible under the federal Constitution, just like Pell Grants and the GI Bill have always allowed students to choose religious colleges if they wish.

But opponents continue to argue that school choice violates state constitutions, and their primary weapons are the clauses in nearly every state constitution addressing religion. These include the so-called “Blaine Amendments,” the unfortunate results of 19th-century anti-Catholic and anti-immigrant bigotry found in 37 state constitutions, and “compelled support” clauses found in 29 state constitutions. The constitutions of 47 states contain one or both.[2] Although courts in some states interpret these provisions much like the federal Establishment Clause, indicating school choice is constitutional, others take a more restrictive view—and still others simply have not addressed the question.[3]

Using these clauses to attack school choice is not new, nor has it been successful. Even before the U.S. Supreme Court’s Cleveland decision, state courts in Wisconsin[4], Ohio[5], Arizona[6] and Illinois[7] all rejected challenges to school choice programs on Blaine Amendment or compelled-support grounds.[8]

To stop these attacks and to curb government discrimination against religion, on July 25, 2006, the Institute for Justice asked the U.S. Supreme Court to review and overturn a decision by Maine’s Supreme Court, Anderson v. Town of Durham, upholding the law that excludes parents who choose religious schools from the state’s “tuitioning” program. IJ, the nation’s leading legal advocate for school choice, seeks to vindicate the First Amendment right to free exercise of religion and the 14th Amendment rights to equal protection of the law. [9]

With this case, the Court has a prime opportunity to end the use of state constitutional religion clauses to threaten programs that offer equal educational opportunity, and to make clear that school choice embodies, not hinders, the religious liberty protections of both the U.S. and state constitutions.

In doing so, the Court can clarify that 2004’s Locke v. Davey ruling did not permit states to engage in such discrimination; it merely carved out a narrow and historically-based exception—public funding for the religious training of ministers—to the general rule requiring equal treatment of religious and non-religious options.

“Tuitioning” in Maine: A Tradition of School Choice

In Maine, every school district has a legal duty to provide an education for its residents through the 12th grade.[10] About half of Maine’s school districts, usually because of their rural nature, have too few students to warrant maintaining K-12 schools. “Tuitioning” is Maine’s common-sense solution to ensure that towns with small populations can offer an education to all of their children.

Under state law, Maine parents who live in towns without public schools have the right to select the school that best suits their children’s educational needs.[11] The town then pays tuition (capped at the average cost of educating a student in Maine’s public high schools[12]) to the school that the parents choose. Parents who live in “tuitioning towns” are free to pick any school for their children—public or private, in-state or out-of-state. Any school, that is, unless it is religious. Since 1980, Maine has singled out religious schools, and religious schools only, for discriminatory treatment, prohibiting towns from paying tuition to any school that is “sectarian.”[13] In 2005-06, more than 6,200 children were tuitioned to private, non-religious schools.[14]

The tuitioning system has existed in some form for more than 200 years, and for nearly all of that time, religious schools were permitted to participate. During colonial years and throughout the 18th and 19th centuries, many towns provided for the education of their residents by paying tuition for students to attend “private tuition schools,” many of which were operated by ministers or religious organizations.[15] For most of Maine’s history, however, formal education generally lasted for only a few years. It was not until the latter part of the 19th century that large numbers of students began to attend high school.[16] Prior to that time, the most promising youngsters pursued further studies at any one of a number of private “academies,” many of which were religiously affiliated and supported by public funds.[17]

In 1873, the state Legislature enacted the first law providing state aid for public high schools.[18] Even with state assistance, however, many small towns lacked the resources to build high schools. In 1903, therefore, the Legislature enacted a law that guaranteed every child a high-school education. The statute required towns that did not operate secondary schools to pay tuition for residents to attend a public or private school elsewhere; the state was required to reimburse the town for one-half the amount of tuition paid by the town.[19]

The 1903 law was the precursor to the “tuitioning” system that exists today. The practice of tuitioning students has served the state well. It continues to provide excellent educational opportunities for students living in the rural part of the state, empowering parents to select the educational environment that best suits their children’s unique educational needs.[20] It has also provided a competitive incentive for public school improvement and led to significant cost savings for Maine taxpayers.[21]

Maine’s Mistaken Religious Discrimination

For most of the 20th century, religious schools like Cheverus High School in Portland, St. Dominic’s Regional High School in Lewiston and Pine Tree Academy in Freeport received public funds to educate students from tuitioning towns. In 1980, however, Maine Attorney General Richard Cohen, a Cheverus graduate who later became governor, issued an opinion indicating that the practice of paying tuition for students to attend religious schools violated the U.S. Constitution’s Establishment Clause. As a result, the Maine Legislature in 1982 passed the current law that excludes religious schools from the tuitioning system—essentially codifying the exclusion implemented in 1980.

We now know, of course, based on the U.S. Supreme Court’s 2002 Cleveland voucher decision, that the State’s understanding was wrong.[22] School choice programs like Maine’s can unquestionably include religious options without running afoul of the Establishment Clause. Yet the discrimination continues.

Incredibly, two weeks after Zelman, Maine Attorney General Steven Rowe sent a letter to Maine’s education commissioner instructing school districts and the state not to release publicly available tuition dollars to parents choosing religious schools, arguing that the issues in Maine and Ohio are “fundamentally different.”[23] But the relevant issues are precisely the same. Moreover, Rowe’s letter blatantly ignored a critical caveat in a 1999 Maine Supreme Court ruling[24] that upheld the exclusion of religious options: “If the State’s justification is based on an erroneous understanding of the Establishment Clause, its justification will not withstand any level of scrutiny.”[25]

Taking that caveat at face value, in September 2002, three months after the Zelman ruling, the Institute for Justice challenged the exclusion of religious options from the Maine tuitioning system on behalf of eight families from three rural towns, including the Guays of Minot. Jill Guay and her husband chose to send their daughter Ashley to St. Dominic’s after they found she was struggling at a public high school, but in doing so, they found they were no longer eligible for tuitioning support. Ashley is now in college, but her younger sister attends St. Dominic’s, and the Guays are once again footing the bill.

Despite the unequivocal statement in its 1999 ruling, the Maine Supreme Court in April 2006 upheld the exclusion of families like the Guays from the tuitioning program,[26] even though the State’s only justification for doing so—the federal Establishment clause—is clearly wrong[27] and Maine’s discriminatory policy violates parents’ rights to equal protection of the law and free exercise of religion.

It is this ruling that IJ asked the U.S. Supreme Court to review in order to open the full range of educational options to Maine parents in tuitioning towns and to establish that states may not exclude religious options from publicly funded school choice programs.

School Choice and Religious Neutrality After Locke v. Davey

Dissenting Maine Supreme Court Justice Robert W. Clifford perfectly characterized Maine’s law: “blatant discrimination that reflects not a neutrality toward religion, but rather an animus against religion.”[28] The ruling flies in the face of more than 25 years of U.S. Supreme Court precedent requiring equal treatment for religious and non-religious options in publicly funded programs (cases listed below).

The majority in Anderson relied on the 2004 U.S. Supreme Court ruling Locke v. Davey,[29] in which the nation’s High Court upheld the exclusion of a “devotional theology” major from a state-funded college scholarship program because of a religion clause in the Washington Constitution. But in Locke, the U.S. Supreme Court carved out only a very narrow exception to its neutrality doctrine: public funding for the religious training of clergy.

The Maine court stretched Locke far beyond that narrow limit.[30] As Justice Clifford explained in dissent, “Contrary to the training for church ministry that was at issue in Locke, for which the provision of scholarship aid the Supreme Court held could be prohibited, [Maine’s law] provides tuition aid for primary and secondary education, education that is compulsory for all students in Maine, and in no way constitutes the ‘training for religious professions’ that uniquely limited the Supreme Court’s holding in Locke.”[31]

In other words, the Maine Supreme Court’s reading of Locke is at odds with both the language and the rationale of the actual opinion, which made clear that “the only interest at issue here is the State’s interest in not funding the religious training of clergy.”[32] In fact, at least 28 times in the short, 12-page opinion, the Court goes out of its way to limit its decision to the funding of training for the ministry.

Moreover, the college scholarship program at issue in Locke actually did permit the choice of religious schools—just as Maine’s tuitioning program should. It only prohibited scholarship students from pursing a religious vocation—i.e., majoring in “devotional theology”—with their scholarships.

The U.S. Supreme Court emphasized that “far from evincing a hostility to religion . . . the entirety of the [Washington] Promise Scholarship Program goes a long way towards including religion in its benefits. The program permits students to attend pervasively religious schools, so long as they are accredited.”[33]

The Court did not authorize Washington to exclude religious schools from its scholarship program altogether, as Maine does. It even suggested that if a State were to exclude all religious options from an otherwise neutral program, such a move might be unconstitutional.
With Anderson, the Supreme Court has a prime opportunity to make clear that the U.S. Constitution does not permit states to exclude religious schools from otherwise neutral school choice programs. In doing so, the Court would remove the primary legal weapon of school choice opponents.

Why Barring Religious Choice Options is Unconstitutional

The U.S. Supreme Court has made it clear: “State power is no more to be used so as to handicap religions, than it is to favor them.”[34] The Cleveland voucher decision demonstrates that school choice programs like Maine’s can include religious options. In another long-running series of cases, the Supreme Court goes further, consistently holding that laws that single out religion for discrimination violate the First Amendment’s right to the free exercise of religion. Recent free exercise cases that support religious neutrality include:

Good News Club v. Milford Central School (2001)[35]—The Court held that a school district that made its facilities available to any group that wished to discuss “instruction in any branch of education, learning, or the arts” could not exclude a group that wanted to sing songs and study the Bible.[36] The Court held that such an exclusion discriminated against a religious viewpoint.

Rosenberger v. University of Virginia (1995)[37]—The Court held that the First Amendment prohibited the University of Virginia from refusing to fund the publication of a religious student periodical while funding non-religious periodicals.

Lamb’s Chapel v. Center Moriches Union Free District (1993)[38]—The Court held that state action that discriminated against a religious viewpoint violated the First Amendment. The case concerned a school district that had made its rooms generally available for such things as “social, civic and recreational meetings and entertainments” or “other uses pertaining to the social welfare.”[39] A Christian group wanted to use some of the space to show a film about family values from a religious perspective. The Court held that the district could not deny the group access based on its religious viewpoint.

Church of Lukumi Babalu Aye v. City of Hialeah (1993)[40]—The Court held that a law prohibiting animal sacrifice violated the First Amendment. The Court reasoned, “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs,” and concluded that “a law targeting religious beliefs as such is never permissible.”

Employment Division v. Smith (1990)[41]—The Court upheld a law that criminalized the possession of peyote because it was neutral with respect to religion. In so doing, however, the Court stated, “The government may not … impose special disabilities on the basis of religious view or religious status.”

Widmar v. Vincent (1981)[42]—The Court held that a state university that made its facilities open and generally available to the public could not prevent groups from using the facilities for religious worship. The Court disallowed the university’s attempt to proscribe speech simply because the university disagreed with the speech. As Justice Stevens wrote in his concurrence, “Quite obviously, the university could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.”[43]

McDaniel v. Paty (1978)[44]—The Court invalidated Tennessee’s law disqualifying members of the clergy from holding public office. The Court concluded that a state could not “condition the exercise of one [right] on the surrender another.”

Each of these cases supports the simple proposition that the State of Maine cannot constitutionally discriminate against religious individuals or religious schools by excluding them from the benefits of the tuitioning system.

School Choice Gaining Momentum Nationwide

Since the 2002 Zelman decision, the number of publicly funded school choice programs has nearly doubled to 23 programs in 13 states and the District of Columbia, and existing programs have grown tremendously. At least 230,000 children enjoy educational options today that were all but impossible a few years ago—and that does not include six new programs this year.[45]

School choice is becoming a popular issue in state legislatures nationwide as more and more states consider expanding educational options to help kids get a better education, spur public school improvement and save taxpayer dollars.[46] Inevitably, in these legislative debates, those most opposed to school choice—teachers’ unions—argue that such programs are unconstitutional. With Anderson, the Court can help remove the favored legal weapon of the education establishment—discriminatory interpretations of state constitutions’ religion clauses—and make a significant step toward the day when all children, regardless of income, can attend the high-quality school of their choice.

Litigation Team

The lead attorney in this case is Institute for Justice Senior Attorney Richard Komer, who litigates school choice cases for the Institute. Komer worked as a civil rights lawyer for the federal government at the Department of Education and the Department of Justice and the Equal Employment Opportunity Commission. Institute for Justice Senior Attorney Clark Neily joins Komer on the case. Joining the Institute as local counsel is Jeffrey T. Edwards, Esq., of the Portland firm of Preti, Flaherty, Beliveau, Pachios and Haley.

The Institute for Justice is the nation’s leading legal advocate for school choice. The Institute helped win a tremendous victory in the U.S. Supreme Court for school choice when it represented parents participating in Cleveland’s school choice program. IJ also successfully defended the school voucher program in Milwaukee and tax credit programs in Illinois and Arizona from legal attacks by school choice opponents. It is currently defending Arizona’s scholarship tax credit program from a second legal challenge.

For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:

Lisa Knepper, Director of Communications

Institute for Justice

901 N. Glebe Road, Suite 900

Arlington, VA 22203

Phone: (703) 682-9320

Fax: (703) 682-9321

[email protected]

[1] Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

[2] See /images/pdf_folder/school_choice/maps/choice_by_state_blaine_map.pdf.

[3] See /images/pdf_folder/school_choice/maps/signals_map.pdf.

[4] Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).

[5] Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999).

[6] Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999). The Arizona Civil Liberties Union filed a second lawsuit against the state’s scholarship tax credit program, alleging it violates the Establishment Clause, even after Zelman. In 2005, a federal district court rejected that claim. The case is awaiting argument before the 9th U.S. Circuit Court of Appeals.

[7] Griffith v. Bower, 747 N.E.2d 423 (Ill. App. Ct. 2001); Toney v. Bower, 744 N.E.2d 351 (Ill. App. Ct. 2001).

[8] Blaine Amendment and compelled-support challenges to a school choice plan in Colorado were not resolved because the Colorado Supreme Court struck down the program on other grounds. Owens v. Colo. Cong. of Parents, Teachers, and Students, 92 P.3d 933 (Colo. 2004). A Florida appellate court ruled against the state’s Opportunity Scholarships program on Blaine Amendment grounds, but on appeal the Florida Supreme Court failed to reach the issue, instead striking the program down under the state constitution’s “uniformity” provision for education. Bush v. Holmes, 919 So.2d. 392 (Fla. 2006).

[9] For a copy of IJ’s petition for certiorari, visit /index.php?option=com_content&task=view&id=1089&Itemid=165.

[10] Maine Revised Statutes tit. 20-A, § 1001.

[11] Ibid.

[12] Id. at § 5806.

[13] Id. at § 2951.

[14] See

[15] Ava Harriet Chadbourne, History of Education in Maine 31-39 (1936).

[16] Id.

[17] Id. at 284-86.

[18] Id. at 281.

[19] Id. at 372.

[20] Frank Heller, Lessons from Maine: Education Vouchers for Students Since 1873, Cato Institute Briefing Papers (Sept. 10, 2001) (available at; Christopher W. Hammons, The Effects of Town Tuitioning in Maine and Vermont, School Choice Issues in Depth (Feb. 2002) (available at

[21]Christopher W. Hammons, The Effects of Town Tuitioning in Maine and Vermont, School Choice Issues in Depth (Feb. 2002) (available at

[22] Admittedly, the 1970s produced a spate of decisions in educational funding cases that were difficult to reconcile, such as Board of Education v. Allen, 392 U.S. 236 (1968) and Meek v. Pittenger, 421 U.S. 349 (1975). However, in the 1980s, starting with Mueller v. Allen, 463 U.S. 388 (1983), the U.S. Supreme Court clarified its position and since then consistently has held that programs that were religiously neutral and provided for independent choice were constitutional. E.g., Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993); Agostini v. Felton, 521 U.S. 203 (1997); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

[23] Nacelewicz, Tess, AG: Ignore court ruling on vouchers, Portland Press-Herald (July 13, 2002).

[24] Bagley v. Raymond School Dept., 728 A.2d 127, 144-45 (Me. 1999).
[25] Id. at 138 (emphasis added).

[26] Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006).

[27] In Anderson, the Maine Supreme Court ruled that while the actual reason for the law excluding the choice of religious schools was a mistaken understanding of the Establishment Clause, the Court was free to consider other justifications for the law offered by the State 20 years later. IJ is also asking the U.S. Supreme Court to review this part of Anderson and rule that under Weinberger v. Wisenfeld, 420 U.S. 636 (1975), courts may not rely on purely hypothetical justifications for discriminatory treatment when the actual (and illegitimate) reason for the discrimination is known.

[28] Anderson, 895 A.2d at 965.

[29] Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307 (2004).

[30] So did the 1st U.S. Circuit Court of Appeals in a similar case challenging Maine’s exclusion of religious schools from tuitioning, Eulitt v. State of Me. Dept. of Educ., 386 F. 3d 344 (1st Cir. 2004).

[31] Anderson, 895 A.2d at 964.

[32] Locke v. Davey, 540 U.S. 712, 723 n.5, 124 S.Ct. 1307, 1314 n.5 (2004).

[33] Id. at 1314-15 (emphasis added).

[34] Everson v. Bd. of Educ., 330 U.S. 1 (1947).

[35] 533 U.S. 98 (2001).

[36] Id. at 2098.

[37] 515 U.S. 819 (1995).

[38] 508 U.S. 384 (1993).

[39] Id. at 386.

[40] 508 U.S. 520 (1993).

[41] 494 U.S. 872 (1990).

[42] 454 U.S. 263 (1981).

[43] Id. at 281.

[44] 435 U.S. 618 (1978).

[45] This number also does not include families taking advantage of tax credits for educational expenses in Illinois, Minnesota and Iowa. All three states allow families to take a credit (and, in Minnesota, a deduction) for educational expenses in public or private school. Hundreds of thousands of families have taken these credits, but the states do not track whether families in public or private schools used them.

[46] See, for example:,, and

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