U.S. Supreme Court Declines to Review Maine School Choice Case

John Kramer
John Kramer · November 27, 2006

Arlington, V.A.—Today, the U.S. Supreme Court announced that it will not hear Anderson v. Town of Durham—a case that presented the Court with an opportunity to decide once and for all whether the federal Constitution allows state governments to discriminate against parents who choose religious schools through publicly funded scholarship programs.

By declining to hear the case, the Court let stand an April Maine Supreme Court decision permitting the State to exclude only those parents who choose religious schools from its century-old school choice program.

“It’s appalling that the nation’s highest court is allowing blatant government discrimination against parents who choose religious schools to continue,” said Dick Komer, senior litigation attorney for the Institute for Justice, which represents eight Maine families denied publicly funded scholarships simply because they felt religious schools were best for their children. “Maine offers school choice to everyone except parents who choose religious schools. Under the federal Constitution, that’s religious discrimination, and we will continue to seek out every opportunity to secure a ruling from the Court that states may neither favor nor disfavor religious options in publicly funded programs.”

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.

Now Maine law provides some families with tuition support for the school of their choice but denies that same support—totaling $20,000 or more per child for four years of high school—to other families simply because they choose religious schools. IJ filed suit on behalf of such families in 2002.

“It’s unfortunate that the Supreme Court turned down an opportunity to shore up its decades long mandate of neutrality toward religious options, but this decision changes nothing about the legal landscape for school choice,” said Chip Mellor, IJ president and general counsel. “We will continue to fight at the state level to defend programs that offer the hope of a quality education to families that desperately need it—and to put this issue back before the Court for final resolution.”

The Institute for Justice, the nation’s leading legal advocate for school choice, is currently defending Arizona’s school choice programs for disabled and foster care children, as well as its two tax credit scholarship programs. IJ also helped win a victory in the U.S. Supreme Court for school choice, representing parents in Cleveland’s school choice program, and successfully defended vouchers in Milwaukee and tax credits in Illinois.