Maine School Choice I

The Case for School Choice: Raymond, Maine

For well over a century, Maine parents in rural towns without public schools have enjoyed the right to select the school that best suits their children’s educational needs.  The town then pays tuition 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.  For most of its existence, this statewide “tuitioning” system permitted the selection of religious schools.  But in 1981, the state came to believe that the inclusion of religious options violated the federal Establishment Clause and excised them from the system.

Maine law singles out religious schools, and religious schools only, for discrimination, prohibiting towns from paying tuition to any school that is “sectarian.”  In 1997 the Institute for Justice filed Bagley v. Town of Raymond, a lawsuit that challenges the exclusion of religious schools from Maine’s school choice program on behalf of five families in Maine tuitioning towns.

The Maine Supreme Judicial Court upheld the exclusion of religious schools in 1999, and the U.S. Supreme Court declined to review the decision.

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On July 31, 1997, the Institute for Justice filed a lawsuit that marks a milestone in its efforts to promote parental choice in education. In Bagley v. Town of Raymond, the Institute challenges the exclusion of religious schools from Maine’s rural school choice program. The case could set an important precedent for educational programs in other states that discriminate against religious schools and the parents that choose them for their children.

The Town of Raymond sits at the northwest tip of Sebago Lake in Cumberland County, Maine. Even though it is just 20 miles from the Portland city limits, Raymond remains a small rural hamlet. Although it has a legal duty to provide an education for residents through the twelfth grade, Raymond has too few school-age residents to justify operating a public school beyond the sixth grade.

Maine developed a common-sense solution to Raymond’s predicament, which many small towns face in this predominantly rural state: Mainers call it “tuitioning.” In Maine, parents who live in towns without public schools have the right to select the school that best suits their children’s educational needs. The town then pays tuition (capped at the average cost of educating a student in Maine’s public high schools ) 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. Maine law singles out religious schools, and religious schools only, for discriminatory treatment, prohibiting towns from paying tuition to any school that is “sectarian.”

The Current Controversy

Cynthia and Robert Bagley live in Raymond, with their two sons, Aaron, a sophomore at Cheverus High School in Portland, and Jody, a sixth grader at Raymond’s public elementary school. Both boys are honors students who sing in the award-winning Maine Boys’ Choir, which serenaded President Clinton at his first inauguration.

Aaron Bagley attended public schools through the eighth grade, first in Raymond and then in nearby Windham and Gray. When Aaron entered high school, however, his parents decided to send him to Cheverus, which is an all-boys’ Catholic school. The Bagleys had been very unhappy with Aaron’s experiences in public middle schools. (In seventh grade, he was assaulted several times by other students.) Cheverus has an outstanding academic reputation and a long-history of providing a quality education for Maine students, and the Bagleys believed that Cheverus’ rigorous college-preparatory curriculum would provide the structured, challenging environment that they desired for their son. They also wanted Aaron to attend a Catholic school so that he could gain a deeper understanding of his religious faith.

Last year, while attending her high school reunion at Mount St. Joseph Academy in Rutland, Vermont, Cynthia Bagley learned that the Institute for Justice was pursuing litigation to permit religious schools to participate in Vermont’s tuitioning program, which closely parallels Maine’s. Realizing that she and her husband were in the same situation as the parents in Vermont who wished to receive public tuition to send their kids to her alma mater, Mrs. Bagley contacted the Institute for help.

This month, the Bagleys and three other families (Gary and Cindy St. Pierre, Dennis and Patricia Cole, and Ricky and Mary Thornton) asked the Town of Raymond to tuition their sons to Cheverus. The town denied their requests because Cheverus is a religious school. On July 31, 1997, the families joined with the Institute for Justice to file a lawsuit in Cumberland County Superior Court alleging that the Town’s action, and Maine’s law prohibiting parents from selecting a religious school for their children, violate the U.S. Constitution’s guarantee of the free exercise of religion.


Maine’s tuitioning system has existed in some form for well over 200 years. 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. 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. 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.

In 1873, the State legislature enacted the first law providing state aid for public high schools. Even with state assistance, however, many small towns continued to lack 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.

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 rural part of the state, empowering parents to select the educational environment that best suits their children’s unique educational needs. During the 1996-97 school year, approximately 140 school districts paid tuition for approximately 13,000 students. Around 40 percent of these students attended non-sectarian private schools; the remainder attend public schools. In Raymond 31 students attended non-sectarian private schools and 277 attended public high schools in other towns during the 1996-97 school year.

For most of this century, Cheverus High School and other religious schools received public funds to educate students from tuitioning towns. In fact, as late as 1983, Cheverus continued to receive public tuition payments from towns throughout the state, including Raymond. In 1980, however, Maine Attorney General Joseph Brennan, a Cheverus graduate who later became governor of the state, 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 passed the current law that excludes religious schools from the tuitioning system.

The Impermissibility of Religious Discrimination

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.” In a long-running series of cases, the Supreme Court has consistently held 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 the Bagley’s case include:

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

Church of Lukumi Babalu Aye v. City of Hialeah (1993) ­ 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) – 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.”

McDaniel v. Paty (1978) ­ 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.”

All of these cases stand for a simple principle: The State of Maine cannot constitutionally discriminate against religious individuals or religious schools by excluding them from the benefits of the tuitioning system, unless the discrimination is justified by a “compelling interest.”

Maine’s Discrimination Is Not Required By The Establishment Clause

When Maine’s Attorney General decided to excluded religious schools from the tuitioning system, he argued that the discriminatory policy was required by the federal establishment clause. Recent Supreme Court decisions, however, demonstrate that the establishment clause does not prohibit towns like Raymond from paying tuition for residents to attend religious schools. These cases, which the Institute for Justice relies upon to argue that parental choice is permissible, include:

Mueller v. Allen (1983) ­ The Court upheld Minnesota’s income tax deduction for educational expenses, including private school tuition.

Witters v. Washington Department of Services for the Blind (1986) ­ The Court unanimously held that a blind student could use public funds to pursue a divinity degree at a religious college.

Zobrest v. Catalina Foothills School District (1993) ­ The Court ruled that the Establishment Clause does not prohibit using public funds to pay for an interpreter for a deaf child in a Catholic High School.

Finally, just in June 1997, the U.S. Supreme Court ruled in Agostini v. Felton, that public school employees could teach remedial education courses in religious schools. (This decision overruled Aguilar v. Felton (1986), which held that this practice was unconstitutional. ) Agostini reasserts the principle that “programs that provide aid to all eligible students regardless of where they attend school” do not run afoul of the establishment clause. In Agostini, the Court relied on earlier holdings, particularly Zobrest and Witters, to hold that religious schools may participate in programs like Maine’s tuitioning program because state funds wind up in religious institutions “only as a result of the genuinely independent and private choices of individuals.”

An Important Step in the Fight for School Choice

One of the Institute for Justice’s primary missions is to advance parental choice in education. Currently, the Institute for Justice represents clients in all four ongoing cases (including litigation in Wisconsin, Ohio, and Vermont) that present the crucial question of whether religious schools may participate in publicly funded school choice programs. All of the Institute for Justice’s school choice cases seek to vindicate the principle that it is constitutionally permissible to permit religious schools to participate in a neutral school choice program so long as public funds are spent in religious schools only as the result of participating parents’ independent decisions.

The Bagleys’ lawsuit closely parallels the Institute’s Vermont litigation, which is on its way to the Vermont Supreme Court. Vermont’s tuitioning law, however, differs in one significant respect from Maine’s. In contrast with the Maine statute, which singles out religious schools for discrimination, the Vermont law is neutral with respect to religion. As a result, the Vermont case focuses primarily on the establishment clause, and the Maine case on the First Amendment’s free exercise clause. The rule established in this case could have nationwide implications, both for school choice and for other educational programs as well. Several states, for instance, give eligible students scholarships to attend private and public post-secondary institutions, but prohibit the students from using those funds in religious colleges. Such discrimination also violates the First Amendment, which requires government neutrality toward religious individuals and institutions.

School choice advocates and opponents alike agree that, ultimately, the U.S. Supreme Court needs to decide the important issues raised by school choice programs, thereby dissipating the constitutional cloud that hovers over educational reform efforts. This lawsuit will present the Supreme Court with yet another opportunity to do just that, so that school children everywhere may take advantage of the full panoply of educational opportunities.

The Institute for Justice is a Washington, D.C.-based non-profit law firm that litigates nationwide for school choice. Currently, the Institute represents parents in litigation involving the ground-breaking school choice programs in Wisconsin and Ohio. The Institute has also filed a lawsuit challenging Vermont’s policy of excluding religious schools from that state’s tuitioning system, which is nearly identical to Maine’s.

Litigation Team

This case will be litigated by Institute for Justice Staff Attorney Nicole Garnett, Senior Litigator Richard Komer, and Litigation Director Clint Bolick. Joining the Institute as local counsel is Linda Russell, Esq. of Petruccelli & Martin in Portland, Maine.

The Institute for Justice advances a rule of law under which individuals control their destinies as free and responsible members of society. Through strategic litigation, training, and outreach, the Institute secures greater protection for individual liberty, challenges the scope and ideology of the Regulatory Welfare State, and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in September 1991 by William Mellor and Clint Bolick.

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

John E. Kramer, Director of Communications

Institute for Justice

901 N. Glebe Road, Suite 900

Arlington, VA 22203

Phone: (703) 682-9320 Fax: (703) 682-9321

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