Maine High Court Upholds Discrimination Against Parents In Statewide School Choice Program

J. Justin Wilson
J. Justin Wilson · April 26, 2006

Arlington, V.A.—The Maine Supreme Judicial Court today upheld a state law that discriminates against parents who choose religious schools by barring them from participating in the state’s century-old “tuitioning” school choice program.

In Anderson v. Town of Durham, the Institute for Justice, the nation’s leading legal school choice advocacy group, challenged that law in state court on behalf of eight families from three small towns in Maine—Durham, Minot and Raymond—where the local school districts offer high school tuition for students to attend the schools of their choice in lieu of maintaining public schools. Each of the families chose to place their children in religious schools and, as a result, were denied the tuitioning funds other parents received to send their children to non-religious schools.

“It’s an incredibly unfortunate day when a state supreme court upholds blatant discrimination against parents simply because the school they deem best for their children is a religious school,” said IJ Senior Litigation Attorney Richard Komer. “Maine’s policy is unfair and a violation of the constitutional right to free exercise of religion and equal protection of the law. It also makes no sense. For some 80 years, Maine permitted the choice of a wide range of public, private and religious schools and the system worked incredibly well.”

As dissenting Justice Robert W. Clifford observed, Maine’s law excluding parents who choose religious schools “is blatant discrimination that reflects not a neutrality toward religion, but rather an animus against religion.”

In a 6-1 ruling, the Court relied in part on the 2004 U.S. Supreme Court ruling Locke v. Davey in which the nation’s High Court upheld the exclusion of a theology student from a state-funded college scholarship program.

“The Maine court simply got Locke v. Davey wrong,” said IJ Senior Attorney Clark Neily. “The college scholarship program at issue in that case actually did permit the choice of religious schools—just as Maine’s tuitioning program should. The U.S. Supreme Court carved out one very narrow exception: funding the training of ministers.”

Justice Clifford further explained, “Contrary to the training for church ministry that was at issue in Locke, for which the provision of scholarship aid the Supreme Court held could be prohibited, [Maine’s law] provides tuition aid for primary and secondary education, education that is compulsory for all students in Maine, and in no way constitutes the ‘training for religious professions’ that uniquely limited the Supreme Court’s holding in Locke.”

Until 1981, Maine’s choice system permitted the selection of religious schools. But then the Maine legislature reversed course under the mistaken belief that allowing parents to choose religious schools would violate the Establishment Clause of the U.S. Constitution. In 2002, the U.S. Supreme Court gave a green light to including religious options in a school choice program such as Maine’s. Following that decision, IJ and its clients asked Maine courts to correct the State’s error and permit parents choosing religious schools to participate equally in the tuitioning program. IJ and its clients are weighing legal options following today’s decision.