Parents Ask U.S. Supreme Court To End Religious Discrimination & Vindicate Full School Choice

J. Justin Wilson
J. Justin Wilson · July 25, 2006

Arlington, V.A.—The U.S. Supreme Court has a prime opportunity to end government discrimination against religion and take a significant step forward for school choice nationwide, thanks to a case appealed today on behalf of eight Maine families by the Institute for Justice.

In April, the Maine Supreme Court gave its blessing to a 1980 legal opinion that, for the first time ever, excluded parents who choose religious schools from the state’s “tuitioning” program. For more than a century, the tuitioning system 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—making it the nation’s second-oldest school choice program. Until 1980, parents were free to exercise their independent choice to select religious schools.

IJ asked the High Court today to review the Maine court’s ruling, Anderson v. Town of Durham, and to vindicate its clients’ First Amendment rights to free exercise of religion and 14th Amendment right to equal protection of the law.

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. These families qualify for Maine’s “tuitioning” program in all other respects, but are excluded simply because they choose religious schools.

“Maine offers school choice to everyone except parents who choose religious schools,” said IJ Senior Litigation Attorney Dick Komer. “Under the federal Constitution, that’s religious discrimination. We’re asking the Court to vindicate the principle that while states may not favor religion, they may not disfavor it either.”

Nationwide School Choice Implications

Maine’s exclusion of religious-school parents makes it a real-world example of the argument put forward by teachers’ unions and others opposed to school choice nearly every time state lawmakers pass, or even propose, school choice legislation. These special interest groups—for their own reasons—inevitably claim that school choice plans violate the religion provisions of state constitutions, including the notorious Blaine Amendments born of 19th-century anti-Catholic and anti-immigrant bigotry.

But the logical result of that misconception is the blatant discrimination practiced by Maine. If school choice programs that treat religious and non-religious options equally actually violate state constitutions, as school choice opponents argue, then the only constitutional course of action is treating them unequally, which is to say, discriminating against religion—exactly what Maine does and what the federal Constitution prohibits.

“It’s time for the Court to put an end to cynical attempts to use religious discrimination to thwart school choice,” said IJ President and General Counsel Chip Mellor. “The Court should help open the door to educational opportunity for children nationwide by removing the favored legal argument of the education establishment.”

Follow-Up to Locke v. Davey

The case also gives the High Court an opportunity to make clear that its 2004 Locke v. Davey decision did not permit such state-sponsored discrimination in K-12 education; it only carved out a narrow exception—public funding for the religious training of ministers—to the general rule requiring equal treatment of religious and non-religious options.

In Locke, the Court upheld Washington state’s exclusion of a theology major from a state-funded college scholarship program. The Maine Supreme Court and the U.S. 1st District Court of Appeals (in a separate case) relied on that ruling to exclude parents who choose religious schools from the tuitioning system, and a Florida appellate court cited it in striking down that state’s pioneering school choice program for children in failing public schools.

“The Maine court and others so far have taken Locke too far, and the U.S. Supreme Court should use this case to make that clear,” said IJ Senior Attorney Clark Neily. “In Locke, the Court repeatedly emphasized that its decision was limited to funding for the religious training of ministers, something K-12 school choice programs do not do. Moreover, the college scholarship program at issue in that case actually did permit students to choose religious schools—just as Maine’s tuitioning program should.”

The Institute for Justice is the nation’s leading legal advocate for school choice. The Institute helped win a tremendous victory in the U.S. Supreme Court for school choice when it represented parents participating in Cleveland’s school choice program. IJ also successfully defended the school voucher program in Milwaukee and tax credit programs in Illinois and Arizona from legal attacks by school choice opponents. It is currently defending Arizona’s scholarship tax credit program from a second legal challenge.