U.S. Supreme Court Denies Review In Maine School Choice Case

Institute for Justice · October 12, 1999

Washington, D.C.-The Institute for Justice expressed its disappointment today at the U.S. Supreme Court’s decision not to review the Maine Supreme Court’s ruling in Bagley v. Raymond School Department, which held that it is constitutional to exclude religious schools from Maine’s tuitioning program. Under the Maine program, many school districts do not operate their own public high schools but instead provide tuition for residents to attend the public or private schools of their choice. Five families in Raymond, Maine had sought tuition for their sons to attend a Catholic high school in Portland. Their requests were denied because Maine had excluded religious schools from the tuitioning program in 1980. The Bagley lawsuit alleged that Maine’s exclusion of religious schools violated residents’ rights to the equal protection of the laws. Maine had removed the religious school option from the program because it believed that including such schools violated the U.S. Constitution’s establishment clause.

“It is unfortunate that the U.S. Supreme Court has failed to take this opportunity to correct the obvious constitutional errors committed by the Maine Supreme Court,” commented Dick Komer, senior litigation attorney for the Institute. “The establishment clause permits the equal treatment of religious choices of schools under a neutral program like Maine’s.”

The Institute remains confident that once the U.S. Supreme Court decides to take up the issue of whether religious schools may be included in neutral school choice programs, it will reaffirm that the establishment clause permits the inclusion of such schools.

“In the past year, the High Court has let stand decisions allowing religious schools to participate in the Milwaukee and Arizona choice programs,” noted Matthew Berry, staff attorney at the Institute. “Today’s decision, therefore, should not be seen as a rejection of choice or vouchers. It simply means that the Court does not yet consider the issue ripe for review.”

The Institute continues to litigate on behalf of school choice in Ohio, Florida, Illinois, and Pennsylvania and participated in the successful defense of the Milwaukee Parental Choice Program and Arizona’s school choice tax credit.

“Although we are disappointed that the U.S. Supreme Court is not yet ready to address school choice, we have no doubt that it will ultimately vindicate the rights of parents to secure high-quality educational opportunities for their children regardless of whether the school they select is religious or not,” Komer concluded.

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