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Maine’s High School Tuitioning Program is Clearly Unconstitutional Under New Supreme Court Precedent

Institute for Justice and First Liberty Institute ask federal appeals court to rule against state program that excludes religious schools

Arlington, Va.— The Institute for Justice (IJ) and First Liberty Institute (FLI) filed a notice of supplemental authority with the 1st U.S. Circuit Court of Appeals asking it to rule in favor of parents who challenged Maine’s high school tuitioning program. The three families, who filed suit nearly two years ago, would like to choose religious schools but are barred by state law. Yesterday’s ruling in Espinoza v. Montana, also an IJ case, held that a similar restriction against choosing religious schools is unconstitutional under the First Amendment.

“The decision in Espinoza means that Maine’s exclusion of sectarian schools must be struck down,” said IJ Senior Attorney Tim Keller. “The Chief Justice could not have been clearer: While a ‘State need not subsidize private education . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’”

Keller continued, “Maine’s town tuitioning program currently permits families who reside in towns that do not have their own public schools to receive tuition to attend the public or private school of the parents’ choice, unless the private school is religious. Excluding religious schools from the array of options open to Maine parents who receive the tuition benefit, simply because they are religious schools, is now clearly unconstitutional.”

Based on an earlier appeals court precedent, United States District Court Judge D. Brock Hornby ruled against the parents in June 2019. In January 2020, the 1st U.S. Circuit Court of Appeals heard oral argument in the appeal of that decision but has yet to issue a ruling in the case. Yesterday’s filing, known as a 28(j) letter, asks the appeals court to consider their ruling in light of the new precedent established yesterday.

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.

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.

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