IJ Appeals Maine School Choice Case To U.S. Supreme Court

October 2006

IJ Appeals Maine School Choice Case To U.S. Supreme Court

Some towns in Maine are too small to have their own public schools. Instead, such “tuitioning” towns pay tuition for parents to send their children to any public or private school they choose—except religious schools, which are banned from the program by State law. In Anderson v. Town of Durham, the Institute for Justice has asked the U.S. Supreme Court to declare the State’s discriminatory tuitioning program unconstitutional under the free speech, free exercise and equal protection provisions of the U.S. Constitution.

After more than 100 years of religious neutrality and inclusion, in 1980 Maine suddenly kicked children whose parents selected religious schools for them out of its tuitioning program, citing federal Establishment Clause concerns. But even after the U.S. Supreme Court dispelled those concerns in Zelman v. Simmons-Harris (2002), a case also litigated with the help of the Institute for Justice, Maine refused to go back to a principle of nondiscrimination. IJ then sued the State on behalf of eight families who were denied tuitioning funds based on their preference for religious schools. The Maine Supreme Court upheld the discriminatory tuitioning program based on a fundamental misconception of U.S. Supreme Court precedent.

In Anderson, the Institute for Justice has asked the Court to make clear that the wholesale exclusion of religious options from an otherwise neutral and generally available scholarship program violates the basic nondiscrimination principles of the U.S. Constitution. Such a precedent could present a major step forward for school choice nationwide by undercutting the legal claims of choice opponents. Those opponents argue that state constitutions require the kind of anti-religious discrimination that Maine practices. IJ’s effort is supported by outstanding friend of the court briefs from the states of Florida, Texas and Alabama, as well as the Alliance for School Choice, the Friedman Foundation, Black Alliance for Educational Options (BAEO) and Hispanic Council for Reform and Educational Options (HCREO).