Maine

Maine

The Maine Constitution contains no prohibitions on public funding of parental choice programs. As such, Maine policymakers are free to enact all types of educational choice program. Indeed, Maine has one of the nation’s oldest and most successful voucher programs—its “tuitioning” system. This program provides public support for parents in towns too small to maintain public schools to send their children to the school of their choice. For nearly a century, parents in tuitioning towns were free to choose religious schools as well as public or private nonreligious schools. In the early 1980s, Maine passed a law excluding parents who choose religious schools from the tuitioning program in the mistaken belief that it had to do so to comply with the federal Establishment Clause. Unfortunately, the U.S. Court of Appeals for the First Circuit recently upheld Maine’s discrimination against religious families and schools, distinguishing Espinoza by categorizing Maine’s discriminatory policy as prohibiting the religious “use” of tuition funds rather than recognizing it as a ban on religious schools based on their status. IJ plans to appeal the First Circuit’s decision to the U.S. Supreme Court. Nonetheless, the Legislature faces no constitutional hurdle to removing its discriminatory ban on tuition payments for tuitioning students attending religious schools—or to offering broader school choice options to more Maine families.

Constitutional Provisions
Education Articles
“A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people; to promote this important object, the Legislature are authorized, and it shall be their duty to require, the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools; and it shall further be their duty to encourage and suitably endow, from time to time, as the circumstances of the people may authorize, all academies, colleges and seminaries of learning within the State; provided, that no donation, grant or endowment shall at any time be made by the Legislature to any literary institution now established, or which may hereafter be established, unless, at the time of making such endowment, the Legislature of the State shall have the right to grant any further powers to alter, limit or restrain any of the powers vested in any such literary institution, as shall be judged necessary to promote the best interests thereof.” Maine Const. Art. VIII, Pt. 1, § 1.

“For the purpose of assisting the youth of Maine to achieve the required levels of learning and to develop their intellectual and mental capacities, the Legislature, by proper enactment, may authorize the credit of the State to be loaned to secure funds for loans to Maine students attending institutions of higher education, wherever situated, and to parents of these students. Funds shall be obtained by the issuance of state bonds, when authorized by the Governor, but the amount of bonds issued and outstanding shall not at one time exceed in the aggregate $4,000,000. Funds loaned shall be on such terms and conditions as the Legislature shall authorize.” Maine Const. Art. VIII, Pt. 1, § 2.

“The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, not prohibited by Constitution or general law, which are local and municipal in character. The Legislature shall prescribe the procedure by which the municipality may so act.” Maine Const. Art. VIII, Pt. 2, § 1.

Relevant Case Law
Carson v. Makin, 979 F.3d 21 (1st Cir. 2020)
The 1st U.S. Circuit of Appeals upheld Maine’s exclusion of sectarian schools from the range of options available to parents who live in “tuitioning” towns, distinguishing the U.S. Supreme Court’s decision in Espinoza v. Montana Department of Revenue by categorizing the sectarian exclusion as a restriction on the religious “use” of funds rather than as a ban against religious school based on the schools’ “status” as religious schools.

Joyce v. State, 951 A.2d 69 (Me. 2008)
The Maine Supreme Court held that a town that had no public high school could not provide a monthly subsidy to parents equal to the amount of tuition they paid to private schools to enable a student to attend a religious school, as this would circumvent the prohibition against paying tuition to sectarian schools.

Anderson v. Town of Durham, 895 A.2d 944 (Me.), cert. denied, 127 S.Ct. 661, 166 L.Ed.2d 512 (2006)

The Maine Supreme Court upheld Maine’s discriminatory tuitioning law as a valid exercise of state power, even though the original justification for that law—complying with the federal Establishment Clause—was rejected by the U.S. Supreme Court in Zelman.

Eulitt v. Maine Department of Education, 386 F.3d 344 (1st Cir. 2004)
The 1st U.S. Circuit Court of Appeals held that Maine’s law excluding parents who choose religious schools from the state’s “tuitioning” school choice system was still constitutional after Zelman.

Strout v. Commissioner, Maine Department of Education, 178 F.3d 57 (1st Cir. 1999)
The 1st U.S. Circuit Court of Appeals upheld Maine’s law excluding parents who choose religious schools from the state’s “tuitioning” school choice system.

Bagley v. Raymond School Department, 728 A.2d 127 (Me.), cert. denied, 528 U.S. 947 (1999)
Prior to Zelman, the Maine Supreme Court held that denying tuition payments to parents in towns without a public high school who sent their children to religious schools did not violate the Free Exercise Clause of the First Amendment and actually was required to avoid violation of the First Amendment’s Establishment Clause.

School Committee of York v. York, 626 A.2d 935 (Me. 1993)
The Maine Supreme Court held that the Legislature does not have exclusive control over education; municipalities retain some authority over education policy.

Opinion of Justices, 261 A.2d 58 (Me. 1970)
The justices of the Maine Supreme Court opined that when the state buys secular educational services from religious schools, it subsidizes the schools in violation of the First Amendment and Maine’s education articles.

Existing Private School Choice Programs
Town Tuitioning Program (excludes religious schools)
Maine Revised Statutes Annotated Title 20-A, Sections 2915 to 2955, 5203 to 5204, 5804, 5806

What You've Heard About Blaine Amendments

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.

The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.

The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: 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.”

As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

What You Need to Know After Espinoza

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.

The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.

The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: 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.”

As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

Select Your State

Program Status
All Educational Choice Programs
Only Tax Credit and ESA Programs
Educational Choice Programs Unavailable

For More Information

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