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.

Vouchers: Yes

Tax Credits: Yes

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

Relevant Case Law

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.

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.

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.

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.

Analysis and Recommendations

Tax credit and voucher programs are school choice options for Maine. The Maine Constitution contains no prohibitions on public funding of parental choice programs and Maine already 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 non-religious 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. 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.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (Means-Tested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

Sign up to receive IJ's biweekly digital magazine, Liberty & Law along with breaking updates about our fight to protect the rights of all Americans.