Lots of Support from Friends of the Court As Maine School Choice Case Appealed to Supreme Court

John Kramer
John Kramer · March 17, 2021

Arlington, Virginia—Last week, a collection of ten different “friends of the court” urged the U.S. Supreme Court to hear a school choice case arising out of Maine. The question before the Court is whether states may bar families from participating in student-aid programs simply because they send their children to schools that provide religious instruction. Among those filing briefs were a coalition of 18 states, various non-religious private schools, a diverse group of religious liberty organizations, an interfaith coalition of religious schools, and education policy experts.

In 2020, the Institute for Justice earned a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. The Court held that discrimination based on the religious “status,” or identity, of a school violates the Free Exercise Clause of the U.S. Constitution.

Despite that ruling, the 1st U.S. Circuit Court of Appeals upheld a religious exclusion in Maine’s tuition assistance program for high school students. Under that program, if a school district does not maintain its own public school or contract with a school to educate its students, it must pay for students to attend the school of their parents’ choice—whether public or private, in-state or out-of-state. Parents, however, may not select a school that Maine deems “sectarian,” which the state defines as a school that provides religious instruction.

According to the 1st Circuit’s decision, this exclusion turns not on the religious “status” of the excluded schools, but rather on the religious “use” to which a student’s aid would be put—that is, procuring an education that includes religious instruction. In other words, the court held that although Espinoza prohibits Maine from excluding schools because they are religious, Maine can exclude parents from choosing schools that do religious things.

“By singling out religion—and only religion—for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Senior Attorney Michael Bindas of the Institute for Justice, which represents the families in the suit. “The state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”

“In student-aid programs like Maine’s, parents—not the government—choose the schools their children will attend,” said IJ Managing Attorney Arif Panju. “If a parent believes a school that provides religious instruction is best for her child, the state should not be allowed to deny her that choice.”

Lea Patterson, an attorney with First Liberty Institute, which serves as co-counsel with the Institute for Justice in the case, said, “For 40 years, Maine has rejected parental choice in education and allowed religious discrimination to persist. The Supreme Court should act now so yet another generation of schoolchildren is not deprived of desperately needed educational opportunity and the right to freely exercise their religion.”

Among the ten different groups that filed amicus briefs urging the U.S. Supreme Court to hear the Maine families’ appeal were:

  • A coalition of 18 states—Arkansas, Alabama, Arizona, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah and West Virginia—that are “united in recognizing religious and nonreligious schools as valid educational partners” argued that “a State need not discriminate on the basis of religion to serve its undoubtedly compelling interest in educating children.” They stressed that “[i]f left to stand,” the 1st Circuit’s decision “threatens not just the freedom of religious schools and families in Maine but also the flexibility of the States to partner with religious schools.”
  • A broad coalition of religious schools, including the Council of Islamic Schools in North America (a non-profit accrediting and advocacy organization that supports Islamic schools, which serve approximately 24,000 students), the Partnership for Inner-City Education (a non-profit operator of Catholic pre-K–8 schools in Harlem, the South Bronx, and Cleveland) and the Union of Orthodox Jewish Congregations of America (a Jewish synagogue organization representing more than 400 Jewish K–12 schools) stressed that “ 1 entral to these schools’ religious and educational missions is the integration of faith throughout all aspects of their educational programs, making the status/use distinction employed by the [First Circuit] both unworkable and discriminatory,” and“[t]o discriminate against these religious schools on the basis of use,” the brief makes clear, “is to discriminate against religious schools on the basis of their status.”
  • Innovative private schools Build UP (which operates a workforce development model to provide low-income youth in Alabama and Ohio with career-ready skills through paid apprenticeships) and Kuumba Preparatory School for the Arts (an African-centered private school located in southeast Washington, D.C.) were “founded on the principle that different students learn differently, and that it is the responsibility of educators to embrace students’ unique capacities as a tool for learning, not an obstacle to it.” The 1st Circuit’s decision, their brief argues, “will have the perverse effect of hurting those who are most likely to benefit from innovative schools, and it will chill creativity and experimentation by schools that fear such experimentation may cause their students to lose access to critical tuition assistance.”
  • EdChoice, a national nonprofit leader in educational-choice research, legal defense, policy development and outreach, provides an extensive examination of Maine’s history of hostility to religion—from its subjecting Catholic students to Protestant religious exercises in its 19th-century public schools to its current prohibition on students’ selection of private schools that accord with their religious faith under the states’ tuition assistance program. EdChoice urges the Court to “tak[e] this opportunity to clarify that religiously neutral application of student-aid programs is both permitted by the Establishment Clause and required by the Free Exercise Clause.”

“We are grateful for the support of every organization that submitted an amicus brief in support of our appeal,” said Scott Bullock, president and general counsel of the Institute for Justice. “The Supreme Court’s taking this case and ruling in favor of the families will ensure that educational choice programs can provide a wide range of school options—whether public or private, religious or non-religious—that enable parents to find a school that best meets their children’s individual needs. Now more than ever, it’s time to expand educational opportunities for all families.”

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(For a video discussing this U.S. Supreme Court appeal with IJ Senior Attorney Michael Bindas and IJ Maine school choice client Amy Carson, click here: https://www.youtube.com/watch?v=TeMoGkTibdU.)

For more information on this case, visit https://ij.org/case/maine-school-choice-3/ or contact John E. Kramer, vice president for communications, at [email protected] or call (703) 682-9323 ext. 205.