Constitutional Provisions

Compelled Support Clause

“[N]or ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry ….” Maryland Decl. of Rights Art. 36.

Education Articles

“The General Assembly, at its First Session after the adoption of this Constitution, shall by Law establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance.” Maryland Const. Art. VIII, § 1.

“The School Fund of the State shall be kept inviolate, and appropriated only to the purposes of Education.” Maryland Const. Art. VIII, § 3.

Vouchers: Yes

Tax Credits: Yes

Existing Private School Choice Programs

Broadening Options and Opportunities for Students Today (BOOST)

2016 Maryland Laws, R00A03.05

Relevant Case Law

Horace Mann League, Inc. v. Board of Public Works, 220 A.2d 51 (Md. 1966)

In upholding the constitutionality of state grants to colleges for academic buildings, the Maryland Court of Appeals, Maryland’s highest court, held, “Thus it is seen that grants to educational institutions at a level where the state has not attempted to provide universal educational facilities for its citizens have never, in Maryland, been held to be impermissible under Article 36, even though the institutions may be under the control of a religious order.”

Johns Hopkins University v. Williams, 86 A.2d 892 (Md. 1952)

Upholding a loan issued by the state to a private university against a challenge brought under Article III, Section 34, which prohibits the state from securing private debts, the Maryland Court of Appeals held, “There is no prohibition in the Constitution against making appropriations to private institutions, provided the purpose is public, or semi-public, and thousands and thousands of dollars are appropriated out of the annual receipts every year.”

Board of Education v. Wheat, 199 A. 628 (Md. 1938), see also Adams v. County Commissioners of St. Mary’s County, 26 A.2d 377 (Md. 1942)

The Maryland Court of Appeals held that using public money to provide transportation for children attending private or parochial schools does not violate Maryland’s Compelled Support Clause because religious institutions would be aided only incidentally as the by-product of proper legislative action to secure the education of children.

St. Mary’s Industrial School for Boys v. Brown, 45 Md. 310 (Md. 1876)

The Maryland Court of Appeals held that although the state could not appropriate money to an institution not under state control, it could contract with private and religious institutions for the care, training and education of state wards.

Analysis and Recommendations

Both tax credit and voucher programs are school choice options for Maryland. The Maryland Constitution does not contain a Blaine Amendment and Maryland courts have a long tradition of reading its Compelled Support Clause narrowly. The Maryland Court of Appeals has upheld the constitutionality of transporting private school students at public expense and of contracting with religious institutions for the education of state wards. In more recent decisions, the court has noted that even direct grants to private educational institutions are acceptable when the state has not attempted to provide universal education at that level. Vouchers, which provide money directly to students and parents and only incidentally benefit the schools they choose to attend, are therefore likely to survive constitutional scrutiny.

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

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