Andrew Wimer
Andrew Wimer · August 21, 2018

Portland, Maine—Today, three families represented by the Institute for Justice (IJ) and the First Liberty Institute (FLI) filed a federal lawsuit alleging that a Maine law that excludes parents from participating in the state’s school tuition program because they chose religious schools for their children, violates the U.S. Constitution’s guarantees of free exercise of religion and equal protection of the law.

“In Maine, parents who live in towns without public high schools have the right to select the public or private school that best suits their children’s educational needs. The town then pays tuition to the school that the parents choose—unless the school is religious,” explained IJ’s lead counsel in the case, Senior Attorney Tim Keller. “By singling out religious schools, and only religious schools, for discrimination, Maine violates the U.S. Constitution.”

Maine is home to the nation’s second-oldest school choice program. Since 1873, Maine’s “tuitioning” system has paid for parents in towns too small to maintain public schools to send their children to the school of their choice—public or private, in-state or out-of-state. Until a flawed 1980 legal opinion, parents were free to exercise their independent choice to select religious schools.

By singling out religious schools, and religious schools only, for discrimination, Maine violates the religious freedom and equal protection guarantees of the U.S. Constitution. As the U.S. Supreme Court’s Chief Justice John Roberts wrote for a 7-2 majority in last year’s Trinity Lutheran Church v. Comer decision, excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.” Armed with this recent decision, IJ and FLI’s clients intend to vindicate the principle that government programs cannot discriminate against religion.

“Maine offers school choice to everyone except those who choose religious schools,” said Lea Patterson, associate counsel with FLI. “Under the U.S. Constitution, that’s religious discrimination, and we intend to restore our clients’ religious liberty.”

The three plaintiff families reside in small towns—Orrington, Glenburn and Palermo—where the local school districts pay tuition for resident high school students to attend the public or private schools of their choice in lieu of maintaining their own public high schools.

“We feel discriminated against because of our religious convictions,” said Alan and Judy Gillis of Orrington, who send their daughter to Bangor Christian Schools at their own expense. “If our neighbors have the freedom to choose a private school and receive tuition from our town, why are we denied this same benefit just because we desire a religious education for our daughter?”

IJ and FLI represent three Maine families who ask the U.S. District Court for the District of Maine to strike down the state’s law prohibiting towns from paying tuition on behalf of families that choose religious schools.

IJ previously brought two similar lawsuits in state court, Bagley v. Town of Raymond in 1997, and Anderson v. Town of Durham in 2002. In both cases, the Maine Supreme Court upheld the law.

“The U.S. Supreme Court has said that IJ’s clients were right in the first two state cases, and our clients are unquestionably right in this new federal case: The Constitution does not allow discrimination against parents who choose religious schools for their children,” Keller concluded.

IJ, the nation’s leading legal advocate for school choice, is currently defending school choice programs in Florida and is challenging the exclusion of religious schools from Montana’s private school scholarship program and the exclusion of sectarian employers from Washington state’s post-secondary work study program. IJ also recently secured a victory for school choice in the Puerto Rico Supreme Court and helped win two victories at the U.S. Supreme Court for school choice on behalf of parents in defense of Cleveland, Ohio’s and Arizona’s school choice programs.

FLI is the nation’s largest legal organization dedicated exclusively to protecting religious liberty for all Americans.