November 12, 2020

The U.S. Court of Appeals for the First Circuit has rejected a challenge to the state of Maine’s decision not to use public education funding to pay for tuition at private religious schools, preserving Maine’s efforts to prevent public funding of religious education. Public Funds Public Schools filed amicus briefs in the case – Carson v. Makin – to support the Maine law.

The Institute for Justice, a group of pro-voucher lawyers behind the Carson v. Makin litigation, has vowed to ask the U.S. Supreme Court to review the First Circuit’s ruling. PFPS will continue to support the law before the U.S. Supreme Court, if necessary.

Maine’s constitution, like those in all 50 states, contains an affirmative obligation on the state to maintain and support a system of free public education available to all children. To carry out this mandate, for nearly 150 years the Maine Legislature has permitted local school districts that do not operate their own public schools for geographic or historical reasons to pay tuition to approved, nonsectarian private schools for resident children. Participating private schools must comply with a host of legal requirements to ensure they meet state standards for an appropriate, nondiscriminatory education.

The First Circuit rejected prior challenges to the Maine law in 1999 and 2004, and Maine’s highest state court rejected similar claims in 1999 and 2006. In 2018, Institute for Justice lawyers filed yet another lawsuit in the federal courts seeking to overturn Maine’s decision not to include private schools offering religious instruction in the state’s tuition program.

In Carson v. Makin, the Institute for Justice argued that recent U.S. Supreme Court decisions, including Espinoza v. Montana Department of Revenue, which upheld a private school voucher program that included religious schools, required overturning Maine’s law. However, the Maine federal district court held that the state’s exclusion of religious schools from the tuition program did not violate the free exercise of religion and other rights guaranteed by the First and Fourteenth Amendments to the U.S Constitution.

The PFPS amicus brief to the First Circuit emphasized Maine’s compelling interest under its state constitution in providing a free public education to all Maine children in schools that comply with state standards, including the requirement that they not engage in religious instruction. PFPS further argued that including religious schools would undermine Maine’s carefully limited program designed to provide a publicly funded education in the narrow circumstances where a district-operated secondary school is unavailable.

The brief also detailed how including religious schools in the tuition-based program would divert significant funding away from Maine’s already underfunded public schools. Finally, PFPS warned that because religious schools often discriminate based on a student’s religious faith, disability, sexual orientation and other factors, including these schools in the tuition program would entangle Maine in regulating matters of religion or result in using taxpayer dollars to fund discrimination.

The First Circuit’s opinion upholding the Maine law explained that: “[g]iven limited public funds, the state’s rural character, and the concomitant scarcity of available public school options for residents of many [districts], we do not see why the Free Exercise Clause compels Maine either to forego relying on private schools to ensure that its residents can obtain the benefits of a free public education or to treat pervasively sectarian education as a substitute for it.”

“The First Circuit’s ruling is a powerful affirmation of Maine’s longstanding decision not to use limited taxpayer dollars to pay tuition at schools that do not provide a secular education meeting state standards to all children, free from discrimination,” said Jessica Levin, ELC Senior Attorney and PFPS Director. “We stand ready to push back efforts to divert Maine’s public funds to religious schools.”

For more information on voucher litigation and PFPS amicus briefs, visit the Litigation page of the PFPS website.